Batavia Planning and Development Committee

A potential snag to proceed with rezoning a section of Mix Place was fairly quickly remedied during Tuesday’s Planning & Development Committee meeting. 

Earlier this year, Edwin Smart had filed a petition to rezone his property at 4 Mix Place to allow him to convert the one-family dwelling into a professional architectural office building. Smart has requested that the words “and other similar professionals” be included in the permit that allows for offices for attorneys, physicians and/or dentists, not exceeding four offices in a single structure. 

He would like to operate his Smart Design architecture firm on the premises, and he purchased the property with that goal in mind. 

Smart had sent out a letter to the surrounding neighborhoods earlier this summer to introduce himself and his intentions and to offer residents the opportunity to call or email him with questions, comments and concerns. 

He had previously said that he has only heard positive feedback; however, he and the committee discussed the lack of response from Mike Ognibene, the property owner of 1 Mix Place, which is listed on the petition for rezoning.

“One thing that we have outlined in the application, I think, is there is no negative impact to Mr. Ognibene and his properties. He hasn’t expressed an opinion either way.  So my attorney, using the Whiting Law Firm out of Le Roy, they actually did get him on the phone. He was noncommittal,” Smart said. “And then we did send him information and asked for an affidavit. And he just never, after that initial conversation, he never responded. And we tried for several months, probably three months. And we actually tried to motivate him to do this by contacting his attorney in a very friendly way.

“This would actually bring his apartment building into compliance. And 1 Mix is a single-family residence originally back there as well,” he said.

That was a good point, Committee Chairman Duane Preston said.

“Why is 1 Mix being considered at this point? Why can’t we keep that R-1?” Preston said.

Smart wasn’t sure why, only that “that’s what I was counseled to do.”

Smart’s request first went to City Council, and the recommendation from city management was to consider including 1 and 3 Mix, a single-family residence, and a two-building, eight-unit apartment building to bring them into the R-3 district for zoning compliance. 

Code Enforcement Officer Doug Randall said that those addresses were on the paperwork “that we received from the applicant.” A committee member then suggested excluding some of that information.

“Absolutely, my recommendation would be to approve the application with the exception of 1 Mix Place,” Randall said. 

Smart had no issue with that.

“I’m eager to get started,” he said, answering The Batavian after the meeting about what happens next. “So I'm not 100 percent certain yet. I think what they just voted on is to make a referral back to City Council, I believe this still has to go in front of the county after this stage, which I think is, it's very standard procedure. And I'm hoping that everybody is supportive and that the City Council votes for the zoning change.

“And then from there, it becomes a more typical building permit process. That's where I would take the drawings that we've come up with and submit them to the building department, and then we will have to go through a special use permit per the zoning law,” he said. “And that's where, again, we hope that language change includes us because, you know, I'm not a dentist or a doctor.”

Believing that the City of Batavia is "on the rebound," entrepreneur Matthew Gray said he and partner Matt Boyd are eager to transform the former J.J. Newberry building downtown into a residential and commercial success.

Gray and Boyd are partners in AGRV Properties Inc., which will be creating the Batavia Brewing Co. and -- as City Planning & Development Committee members found out on Tuesday night -- seven apartments on the second and third floors of the vacant building at 109-111 Main St.

Gray was unable to vote on the special use permit request to convert the upper two floors into dwelling units since he is on the planning committee. But he was willing to talk about the venture afterward.

The committee did vote in favor of the project, which has an expected price tag of around $1.5 million in construction costs and also involves plans to have the building put on the National Register of Historic Places.

When it was mentioned that Gray must be pretty confident in Batavia to make this type of investment, he replied that "we were confident in Batavia to move back here in 2007 (from North Carolina and take over ownership of Alex's Place restaurant on Park Road), and we're confident now..."

"We really think that Batavia is on the rebound."

Nicholas Ryder, job captain for TRM Architect in Buffalo, provided details to the planning committee, stating that there will be four apartments (one- and two-bedroom) on the second floor and three on the third floor. The average size of the units will be around 800 square feet, with one to be about 1,400 square feet. The total space of the building is around 27,000 square feet.

Ryder said his firm is working with the city manager's office on a parking plan -- eyeing lots on Center, Court and Jackson streets -- and will be putting out bids for some exterior modification.

As far as the interior is concerned, he said they have discovered significant historical elements -- walls and ceilings of bead board and decorative wood wilth finite ribbing, for example -- that will not be tampered with per historical registry requirements.

"There also is existing chain link, pendant-like fixtures and milk-glass dome fixtures that trickle throughout the entire building," he said.

Ryder added that historic preservation rules prohibit the altering of hallways and doorways.

Gray said he doesn't expect any problems attracting tenants, noting that "everyone who goes through" the building has given it rave reviews.

Julie Pacatte, coordinator of the Batavia Development Corp. that is steering the project, said the monthly rental rate for the one-bedroom apartments can not exceed $1,142 and the monthly rate for the two-bedroom units can not exceed $1,371.

She said that rates are capped at 90 percent of the median income in Genesee County due to the fact that grant funding is being made available through the state Office of Community Renewal's New York Main Street Program.

The Batavia Brewing Co. will be the anchor tenant, with its brewing tanks in the basement viewable to patrons at the first-floor pub and eatery. The first floor also will contain two as-yet-to-be-selected "freshLAB" concessionaires -- hopeful restaurateurs offering unique menu items. Gray said he hopes to begin construction by January and be open by next summer. 

In other action, as expected, the planning committee held a public hearing in connection with a revised city sign code, and sent its recommendation for approval to City Council.

Prior to the unanimous vote, however, it heard from Guy Clark, owner of Cedar Street Sales & Rentals, who said he objected to the regulation that the message on electronic digital signs could be changed only once every hour. Clark had appeared before City Council on the same issue about a year ago.

"I had requested that the frequency be four to five seconds," Clark said. "Now I saw the once-per-hour, and know that every school and church change their messages every two seconds, and include graphics."

Clark went on to say that digital signs have not caused any accidents or incidents, and he just wants to be able to change his message more frequently.

City Code Enforcement Officer Doug Randall stated that changeable text signs are permitted only on state routes (with the exception of downtown), and that the code -- as currently written -- does not permit these types of signs on Cedar Street.

The city planners' recommendation, along with Clark's comments, will be forwarded to City Council to be placed on its conference agenda and, per City Manager Jason Molino, another public hearing will be scheduled in January or February.

City planners and the Genesee County Planning Board worked together to revamp the city sign code with an emphasis on readability and streamlining the procedural process (see a previous story on The Batavian).

When it comes to rules and regulations pertaining to signs on businesses and other public buildings, there's much more than meets the eye, according to the director of the Genesee County Department of Planning.

Felipe Oltramari provided some insight and background on the City of Batavia Planning & Development Committee's effort to rewrite its sign code, a several month process that initially focused on how to address electronic message board signs.

Tonight (6 o'clock at City Centre Council Chambers) city planners are expected to forward the revamped document to City Council and schedule a public hearing on the matter. Last week, the Genesee County Planning Board gave its approval to the new version.

The new code is "modernized," Oltramari said, and is "more legible and easier to enforce with ample use of graphics and tables."

Just as importantly, the code now lines up with the latest U.S. Supreme Court decisiion that limits governments from regulating signs based on content, Oltramari said.

"The current code addresses temporary signs differently based on whether they were political, for sale signs, event signs, etc.," Oltramari said. "The court case Reed v. Town of Gilbert that was decided last year at the Supreme Court said that signs are a form of free speech protected by the First Amendment and any regulation of the sign’s content was subject to strict scrutiny and had to be narrowly tailored to further a compelling government interest.

"This usually means that the sign’s content can only be regulated if it furthers health and safety of the community. Governments can only then regulate signs based on the time, place and manner -- such as duration, location and type and /materials. The new code sticks to those types of regulations."

Oltramari said other changes deal with procedure.

"The code is being streamlined so that all signs that conform to the standards of the code can be handled administratively only requiring a building permit from the City’s Code Enforcement Officer," he explained.

"Right now, a business that opens downtown and is only changing the sign and is proposing a sign that meets all the requirements of the code still has to go to the City’s Planning and Development Committee and the County Planning Board to get approval to go forward. The new code incentivizes applicants to conform to the code by eliminating the review by these boards ... saving a month or more of time."

Once approved, the new procedure for variances for signs in the city that do not conform because of dimensional requirements will go directly before the City's Zoning Board of Appeals, eliminating review by (and subsequent permit from) the city planning board and review by the county planning board, Oltramari said. 

"Having the City’s ZBA handle these as variances is in harmony with State Law and will ensure more consistent interpretation of the code," he said.

He said that other changes include allowing exposed neon to be used in signage, and recognizing and allowing for backlit illuminated signs -- something that has increased in popularity due to the utilization of LED lighting.

While acknowledging the artistic value of a five-panel window mural on the storefront of the Main St. Pizza Company at 206 E. Main St., the Batavia Planning & Development Committee nevertheless ruled on Tuesday night that business owner Vic Marchese will have to remove the one that depicts two young ladies simultaneously taking a bite out of a large pie.

The planners granted a special sign permit that allows Marchese to keep four of the perforated vinyl window coverings despite the fact that the total area of the signs is more than the maximum allowable amount of 25 percent of the window space.

The other renditions show a woman enjoying a plate of spaghetti (which covers two windows), a display of pizzas and a pizza chef flipping dough into the air.

Marchese requested the permit last month, but action was tabled after the board decided to seek an interpretation from the City Zoning Board of Appeals as to whether the coverings constituted a window sign as defined by the Batavia Municipal Code and whether the total coverage area should be based on the percentage of coverage for the individual window pane or all window surfaces combined.

The ZBA ruled that this form of window treatment clearly meets the BMC definition of a window sign, and that the maximum amount of window coverage allowed refers to the individual space in which the sign is located and not all window surfaces combined.

Additionally, the Genesee County Planning Board recommended approval of the special sign permit as long as the 25 percent maximum area standard was met, providing for the transparency needed to "enhance the pedestrian experience."

Planning Board Member Ed Flynn, before making the motion to grant the permit, said he was of the opinion that all of the space at the front of the building should be considered when figuring the percentage.

"I am thinking that it should be 25 percent of the entire frontage," Flynn said. "That's my interpretation."

Flynn, Robert Knipe, Matthew Gray and Chairman Duane Preston agreed that the window murals were "attractive," but stressed that they needed to adhere to the city code.

"I agree that it's not unattractive, and I commend the job you have done with the place, but for us it's a compliance issue," Knipe said in addressing Marchese.

For his part, Marchese pointed out that several other Batavia businesses, citing Batavia Optical, Burger King and Ziebart as examples, have large window signs.

"How can the optical place get away with it?" Marchese asked.

Preston countered his claim, however, stating that those places put up posters, which are meant to be temporary.

Planners, as well as Code Enforcement Officer Doug Randall, suggested to Marchese that he should remove the advertising component of the signs or eliminate two of the coverings.

In the end, Flynn's motion asked that only one of the panels be removed, and the special sign permit was approved by a 4-0 vote.

Following City Manager Jason Molino's lead, the board did not tie its decision to the maximum allowable percentage of available space requirement, but said it would be looking at these situations on a "case by case basis."

Going forward, Randall said that the board would have to treat every business owner making a similar request in the same fashion. 

After the meeting, Marchese said he would remove the panel (Randall noted that it shouldn't have been put up before the permit was issued) but wondered aloud about his rights.

"It's one panel; I'm not going to miss it," he said. "But is it like a First Amendment thing, too? The city makes things so difficult. It's a lot easier to work with the town (of Batavia)."

Continuing, he said he understood that the city has rules, but didn't understand "what the big deal is."

"It's because somebody complained about it," he surmised.

In other action, the board approved a pair of signs that will be placed on the exterior walls of United Memorial Healthy Living at 164 Washington Ave., and two signs for the exterior of Carter's Restaurant & Bar at 60 Main St.