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ZBA Approves Variance with Conditions

By Jennie Acklin

The Town of Ellicottville Zoning Board of Appeals held a hearing on Thursday, January 9, to allow the public to weigh in on a lighting standards variance requested by Ray Miranda of Miranda Development, owner of the Tim Hortons’ at the intersection of Rtes. 219 and 242.

The request for a variance came about after Miranda made some changes to the site plan without getting approval for the changes.

Miranda explained that, during construction, he decided to reduce the previously approved 13 light poles to 10, and to change the lights to LEDs to take advantage of long-term cost savings. The LED lights cost Miranda an additional $15,000, but he believed that there would be a greater cost-savings over a 20-year period. He was assured by the lighting vendor that the photo metrics would not change from the original plan, so that no revisions to town-approved plans were necessary. Miranda acknowledged that he “should have run the photo metrics myself before I agreed to purchase the LED lighting.”

Miranda also made some other changes to the site plan without realizing he needed approval from the Town Planning Board or ZBA.

ZBA Chairman Jack Kramer and other members of the board discussed the details of those changes, as board member John Cady expressed his concern that “We’re approving items on the site plan but they’re different when completed.”

Miranda assured the board that, “I don’t bait and switch.” As he explained, “this is my first development project. We own several other Tim Horton’s restaurants, but have never developed them ourselves. I did make a few changes and mistakes, and while that is not an excuse, I still spent the same $2.5 million, and 95 percent of the finished product is as I presented it. The changes I made were for safety reasons (for example installing a railing in lieu of some planters and columns) and the lighting was for long-term cost savings.”

No members of the public were in attendance at the hearing. A letter to the ZBA from John Northrup stated that he had no objection to the proposed lighting variance.

[Incidentally, during last month’s Town of Ellicottville Board meeting, Town Engineer Mark Alianello brought up the lighting issue and said that, though the approved plan was not followed, the LED lights look fine and that there was nothing “malicious” in the owner’s decision to use them. Then-board member John Northrup suggested that the Town’s zoning rules related to lighting may be out-of-date given the many new lighting options now on the market.]

The hearing was closed and the ZBA began discussion of the lighting variance request.

Miranda, who was joined by architect Chris Woods, submitted a revised lighting drawing. A computer model report showed an increase of 0.1 foot candles of light spillage, with planned lighting shields taken into account.

“The lighting shields will be installed by the end of January, barring any weather issues,” Miranda said.

According to Town Zoning Laws, item 9.4: In making its determination on an application for an area variance, the Zoning Board of Appeals shall take into consideration the benefit to the applicant if the variance were granted, as weighed against the detriment to the health, safety and welfare of the neighborhood or community by such grant. In making such determination the board shall also consider:

(a) Whether an undesirable change will be produced in the character of the neighborhood or a detriment to nearby properties will be created by the granting of the area variance.

(b) Whether the benefit sought by the applicant can be achieved by some method, feasible for the applicant to pursue, other than an area variance.

(c) Whether the requested area variance is substantial.

(d) Whether the proposed variance will have an adverse effect or impact on the physical or environmental conditions in the neighborhood or district.

(e) Whether the alleged difficulty was self-created, which consideration shall be relevant to the decision of the board, but shall not necessarily preclude the granting of the area variance.

Kramer led the board through each of these five questions, and then asked for its decision, bearing in mind that the bank holding Miranda Development’s loan requires a Certificate of Occupancy to be issued by the end of January 2014, the ZBA’s recommendation must go back to the planning board for approval of changes and the temporary Certificate of Occupancy will expire at the end of the month.

A motion was made that: 1.) the planning board must approve what they feel is best for the community in reference to what was presented on the original site plan regarding barrier planters and columns; 2.) Lighting shields must be installed before issuance of a permanent Certificate of Occupancy; 3.) Light spillage must comply with current Town of Ellicottville standards.

Kramer suggested the board also require full verification of compliance after the light shields are installed before a permanent Certificate of Occupancy would be issued. The board agreed.

The next meeting of the town ZBA is scheduled for Feb. 6, 2014, at the Village/Town Hall at 6 p.m.

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