TOWN OF VESTAL ZONING BOARD OF APPEALS

______

In the Matter of the Application

of

Porto Bagel, Inc.DECISION

For a Variance as required by chapter 24,

Article IV, Division 3, Section 24-207

of the Code of the Town of Vestal,

Broome County, New York (Zoning Ordinance)

______

At a meeting duly scheduled for February 28, 2008, the Zoning Board of Appeals of the Town of Vestal held a public hearing to consider the application of Porto Bagel, Inc., regarding premises situate at 1901 Vestal Parkway East, (tax map no. 158.13-1-32) for a Variance as required by Chapter 24, Article IV, Division 3, Section 24-207 of the Code of the Town of Vestal, Broome County, New York (Zoning Ordinance) pertaining to having less than the required number of parking spaces in a “C-1”, General Shopping District.

Appearing in support of the application was Vincent Porto, the principle of Porto Bagel, Inc. In support of the variance request, the applicant provided the Board with detailed site plans, photographs, a survey, and correspondence from a neighboring property owner.

After due deliberation, the Zoning Board of Appeals makes the following findings of fact and conclusions of law:

The applicant has owned this commercial Parkway property for approximately four years and is desirous of reconfiguring the buildings on the property to alleviate the issues created by flooding in recent years. He has also contracted to purchase the lot to the east. He stated that the floods of 2005 and 2006 caused monetary damages to the property in excess of $500,000.00, as well as the loss of tenants and personal property. Applicant determined that further leasing of those spaces affected by the floods would be wrong, and would pose a great risk for any business in the rear of the building. As such, much of the building lies vacant. The plans submitted by the applicant indicate that certain portions of the building (the rear portion) will be removed and the area would be raised with earthen fill. A new three-story office addition will be erected in that raised area. The combined total proposed building square footage would be approximately 1500 square feet less than the current structure. The overall building footprint would also be reduced by approximately 1250 square feet, and the parking as proposed would remain comparable to the existing number of spaces.

It should be noted that the applicant has already obtained preliminary approval for the building plans from the Town of Vestal planning Board, and is only before the Zoning Board of Appeals on the issue of a parking variance.

Board member Robert E. Hynes, Jr. Chairman, Ray Ferarro, Thomas Smallcomb, and Mark Tomko stated that they had visited the site and were familiar with the character and nature of the area. Board Member Ken Cramer and alternate David Leonard were absent. The request for a parking Variance (area) is deemed a SEQR Type II action which does not require an EIS. The applicant did not provide one. The Board understands that for site plan approval, the applicant has submitted a short form EIS to the Planning Board.

The Western building currently has only 45 parking spaces, but the total parking available has been 74 parking spaces as applicant presented proof of a shared parking agreement with the Steve Falvo, the owner of 1909-1913 Vestal Parkway East . He stated, like many other developers have in the past, that if he did not think the proposed buildings would have sufficient parking under his proposal, he would not endeavor to commence this project. He stands to lose a lot of money should parking prove insufficient. He also came prepared with historical data regarding the uses of the property for the last several decades and stated that there has never been a parking issue on the property over all that time. A neighboring property owner, Steve Falvo of 1909-1913 Vestal Parkway East, sent a letter to this Board stating that in the twenty years that he has owned his property there have been no parking problems and no complaints regarding parking in the front or rear of the building. It was also brought to the Board’s attention that the average occupancy rate (at least pre-flood) has been 90 percent.

Chairman Hynes once again noted the lack of current data in support of parking space requirements under the Code, and lauded Mr. Porto for doing the research on the property uses over the years. Historical data on a particular property allows the Board to assess the parking needs in terms of a “real world” analysis, rather than potentially dated and unsupported figures. It is noted that the Building and Code Department did not refute the presentation on current and historic parking adequacy. The type of use this building will be put to will not create a line of vehicles waiting to get in. These are small businesses.

The Code requires one parking space for every 250 square feet of office building, and one space for every 250 square feet of retail space. Shopping centers require 1 space for every 200 square feet. The applicant’s current building (Western) has had only 45 spaces for a building of 25,056 square feet. The International Traffic Engineers (ITE) Parking Guidelines indicate that the parking requirements for the equivalent square footage are much less. In this matter, the proposed building will be approximately 28,381 square feet. The applicant stated that out of that total square footage, only 2,000 square feet would be retail space. The ITE Guidelines indicate that the total recommended parking spaces for this building would be 81 spaces. The applicant’s plans only allow for 73 spaces, which is actually more spaces than site historically had, with no issues. This proposal equates to an 11% variance request. The fact cannot be lost that the new building will be smaller than the combined square footage of the old buildings on the site (the applicant is creating one building out of two as Falvo’s neighboring building will be demolished).

The hearing was opened to the public for comment, and Fire Chief Rose stated his concerns regarding the three story back portion of the building. Chief Rose was concerned that there would be a safety issue. His hoses could reach the third floor, but rescue would be problematic given the limited access his trucks would have to the rear parking area. He believes the building should have a sprinkler system installed. Code Enforcement Officer Mark Dedrick stated that the proposed building is in compliance with the current fire code as the code only requires the trucks be able to get within 150 feet of any side of the building. This plan allows for that. A tenant of the applicant also spoke and stated that she runs a salon at the site, and she has never had any parking issues. Justin Marchuska presented the Board with a letter of concern and also appeared to discuss his concern that the proposed construction may interfere with the operation of a drainage pipe he installed on his neighboring property. There was some discussion on that issue, but since this is a parking variance request, that issue is better suited for the Planning Board.

The Board is in receipt of the Broome County Planning Depts. 239 l and m review and they made a ''recommendation to withhold decision'' until DOT's easement issue was resolved. Mr. Porto stated that his proposed construction would not affect the easement or Mr. Marchuska’s drainage pipe. No further discussion was needed on that issue. The hearing was then closed.

A motion was made by Mark Tomko to grant the parking variance to allow for a total of 73 parking spaces as depicted in the plan submitted by applicant in January of 2008, without deviation. The motion was seconded by Ray Ferarro.

A vote was held, and therefore in consideration of the above, and in balancing the factors of 1.) Change in character of locality; 2.) Alternate methods to achieve what the applicant desires; 3.) The degree of variance sought; 4.) Effect on the physical conditions existing in the locality; and 5.) Any self-created difficulties, the request for a parking variance to allow for a total of 73 off-street parking spaces as depicted in the plan submitted by applicant in January of 2008, without deviation, is hereby GRANTED by a vote of 3-1, with the following condition.

CONDITION:

1. This Decision is conditioned upon the applicant obtaining final approval of his site plan by the Vestal Planning Board .

The votes were cast as follows: Chairman Robert Hynes-Aye, Thomas Smallcomb-NAY, Ray Ferraro-AYE, Mark Tomko-AYE.

In the event that the variance is not utilized within four months from the date hereof, then the variance shall be deemed revoked. . The Code Enforcement Officer is herewith authorized to take the necessary action to carry out the provisions of this Decision.

Dated:February 28, 2008ZONING BOARD OF APPEALS

OF THE TOWN OF VESTAL

BY:______

Robert E. Hynes, Jr., Chairman

ZBA 2008 Decision 02 28 1901 Vestal Parkway East

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