planning and land use

Members of the Town of Batavia Planning Board responded coolly to a proposed solar farm off of Bank Street Road at its monthly meeting Tuesday night.

Buffalo-based attorney Gregory P. Scholand, representing SunEdison, outlined the company's plan for 15 acres that are currently cultivated for peas.

The farm would produce two megawatts of electricity, which is enough energy for about 20 300 homes. (CORRECTION)

Scholand told board members he had to be honest -- the solar farm won't create jobs and any increase in assessed value, which means more tax revenue, will be delayed by state-backed incentives for solar installations.

"In other words," said Board Member Lou Paganello, "the only people who will benefit are the landowner, National Grid and SunEdison."

Paganello was one of the most vocal members of the board expressing concerns about the proposal, but he also said he was intrigued by it and doesn't want to just kill the idea without learning more.

He also suggested the town needs to develop a plan for dealing with solar farms since this is unlikely to be the last proposal the town is asked to consider.

Gov. Andrew Cuomo is trying to push New York toward a stronger solar future. He's committed $1 billion to NY-Sun with the goal of eventually generating three gigawatts of electricity from sunlight across the state. That would be the equivalent of taking 23,000 cars off the road. According to the project's Web site, that much installed capacity will make the solar industry self-sufficient in New York and subsidies will no longer be needed.

The initiative is the reason SolarCity, a company owned primarily by technology multi-billionaire Elon Musk, is building a manufacturing plant in Buffalo that is expected to create 1,460 jobs. 

Solar is coming on strong nationally, both because of the investments of Musk -- a hard-charging entrepreneur who made his initial fortune with two Internet startups, including PayPal, and who is also responsible for the all-electric Tesla luxury sports car and the Space X program -- and because China flooded the market a couple of years ago with inexpensive solar panels.

That, and greater efficiencies in installation and substantial tax breaks and government subsidies have helped reduce costs for power companies, businesses and homeowners.

It doesn't matter, though, to local planning boards that are being asked to back projects that potentially divert productive land to massive complexes of metal and glass.

In Genesee County, of course, that other productive use is farming, the kind of farming that produces grains, vegetables and milk. How much soil does the local area want to convert to solar panels?

"You open the door for one farm to do this then everyone is going to want to do it," said Board Member Jonathan Long.

Board members seemed unanimous in sharing this concern.

The proposition, put forward by Scholand, that solar farms help reduce an area's carbon footprint, was countered by Long.

"Peas are already taking a lot of carbon out of the air," he said.

The town needs a plan for dealing with solar and Scholand agreed. He said SunEdison fully supports local jurisdictions developing local ordinances to govern solar installations. 

SunEdison hasn't made a formal application yet, but when it does, the Planning Board will be asked to become the lead agency for the environmental review process.

Chairwoman Kathy Jasinski expressed some doubt about the board's willingness to take on that role when its members still know too little about solar energy, the impacts of such farms, how they might affect neighboring property owners and what the benefits might be for local residents. The board needs a quick education in these subjects, Jasinski suggested.

If the Town of Batavia was to reject the proposal, it would be the second time this year that a local government body turned down a solar farm in the county.

In January, SolarCity approached the County about building a solar farm next to County Building #2, but concerns about the viability of SolarCity, whether the subsidies that would help the county save $500,000 and what might eventually become of the infrastructure, led the Ways and Means Committee to reject the proposal.

Meanwhile, solar companies have started pitching subsidized solar installations to local residents. One company had a booth at Summer in the City.

A proposed expansion of the O-AT-KA Milk Products plant at Cedar Street and Ellicott Street Road, Batavia, received a vote of approval from the County Planning Board on Thursday night.

O-AT-KA is contemplating adding a 194,543-square-foot building and a 35,279-square-foot building that will serve as warehouse space and a distribution center.

A spokesman for O-AT-KA repeated several times to reporters last night that the expansion remains a proposal at this time. There's no information available on how O-AT-KA's business might be expanding as a result of the new space.

The location of the new structures would be on the east side of the plant with vehicle access off of Ellicott Street Road.

The board recommended approval of a site plan review with recommended modifications for a stormwater pollution-prevention plan prior to final approval by the city.

Also on Thursday:

The board recommended approval of a site plan review for a 1,620-square-foot addition to the Pavilion Public Library. The expansion, which will include a new children's wing, is funded in part by a $200,000 donation from Edgar Mary Louis Hollwedel. Deborah Davis said the library is also seeking a state grant. The size of that grant could exceed $200,000.

The board recommended disapproval of a zoning map change on South Lake Road in Pavilion. Superior Plus Energy Services was seeking the change to develop a bulk storage and truck distribution center for bulk propane. The 32-acre site is currently zoned agriculture-residential and Superior Plus Energy is seeking a change to industrial. Staff's recommendation was for disapproval because the change would be inconsistent with the town's comprehensive plan and the Future Land Use Map, which plans for agriculture use or residential with minimum lot sizes of five acres.

A planned Dollar General store in Pavilion received recommended approval for its sign. The sign design presented previously by Moeller Sign Co. wasn't approved because it would have meant a sign larger than currently allowed in the zoning code. The new design complies with the code.

Any city residents who are concerned about rooming houses opening in their neighborhoods need not worry much longer.

The city is working on a change to the zoning law that would prohibit new rooming houses, boarding houses, lodging houses, tourist homes and tourist camps inside of R-2 districts.

The change would also prohibit future development of such facilities in C-1, C-2 and C-3 districts. 

There are currently 10 rooming houses in the city with a total of 80 available rooms.

"At this point, we think we're saturated with an adequate amount of rooming houses and boarding houses in the city and this provides the ability to limit expansion," said City Manager Jason Molino. "The existing ones will continue to stay in place. They will continue to be regulated and reviewed and permitted every year, as they should be, but this will limit the expansion."

Molino presented the proposed change to the zoning ordinance to the Genesee County Planning Board, just one step in the process of making the change in the zoning law. The board unanimously recommended approval of the proposal.

The current codes governing rooming and boarding houses and multiple-family dwellings in the city are inconsistent with the city's master plan and strategic plan, Molino told the board.

Numerous studies, he said, have shown that rooming houses, in particular, and multi-family dwellings, intermingled in otherwise single-family neighborhoods, bring down property values and encourage the deterioration of whole blocks.

Such uses are also inconsistent with economic development in commercial districts.

This is an issue the city has been looking at for some time, Molino said, but officials became more aware of the need to tighten up the code after local property owner and investor Terry Platt purchased a large home on East Main Street and announced plans to convert it into a rooming house. The city's planning board denied Platt his application for the use, responding to concerns raised by neighbors and other residents; however, Platt challenged the ruling court and eventually prevailed and was able to convert the property into a rooming house.

"That certainly opened everybody's eyes to the potential of where these rooming houses could be located," Molino said. "It has a lot of impact that people perceive as being negative if rooming houses open in certain areas, so that certainly opened our eyes to the inconsistencies in the code."

The proposed zoning change could be perceived as inconsistent with a couple of emerging trends in American society.

First, is the seeming interest of Millennials to avoid home ownership and find suitable places to rent in cities. The second is a trend among some homeowners to use services such as Airbnb to rent rooms to travelers.

On the first point, Molino said he doesn't think Millennials are looking for the kind of rentals this zoning change would curtail.

"They're looking for a little more secure housing, generally, furnished housing, not shared common bathrooms, in areas that are close to amenities and part of a development," Molino said. "There's a disparity in the housing qualities when you start talking about Millennials and the population of empty-nesters who are looking to downsize. They're generally not looking to downsize into rooming houses."

While services such as Airbnb are growing in popularity -- there are even two houses available for guest lodging in Genesee County -- it hasn't been an issue in the city yet, Molino said. The proposed zoning change isn't really meant to address such services, but if it ever became an issue here, Batavia, like any city, would need to study the issue and find the most balanced solution available.

"You've got to look at what comes with it," Molino said. "Are there negative effects? Are there positive effects? Is it similar to a bed and breakfast or not? What comes with that activity? I think what most communities will start dealing with is, what are the positive and negative effects that come with the activity and do they balance each other house, and if not, what revisions of code or enforcement mechanisms do they want to put in place to balance it out."

The proposed zoning change will need to be go through a public hearing and be approved by City Council before becoming law.

Millennials -- that generation born after 1980 but before the turn of the century -- came of age in a time of economic stagnation, fewer jobs, fewer chances for career advancement, lower pay.

Technology has ruled their lives.

They're getting married later in life, starting families later, and moving to smaller cities in droves.

Buffalo has attracted a 34-percent jump in recent college graduate residents, outpacing bigger cities such as Los Angeles.

All of these trends, and more, are attracting the attention of land use planners and informing a new way of looking at planning, said Felipe A. Oltramari, director of the the Genesee County Planning Department, during a presentation at City Hall this morning on the Millennial Generation.

There are 87 million people born in the Millennial decades, about 11 million more than were born during the Baby Boom years.

What they want out of life tends to be far different than Baby Boomers or even Gen-X.

To them, suburbs are dead.

A higher percentage of them than any previous generation have never had a driver's license. Often, they don't own cars.

They're more environmentally aware and socially connected through their digital devices.

The reason they're flocking to cities like Buffalo, Pittsburgh, Portland and Houston is they're more interested in deciding what lifestyle they want before deciding what job they will take, Oltramari said.

Sixty-four percent settle in a city before they get their first job offer.

"It's going to be a difficult job market any place you go, so you might as well go to someplace where you want to live," Oltramari said.

So why not go to New York City instead of Buffalo?

Because it costs a lot more to live in NYC than Buffalo.

So why come to Batavia instead of Buffalo?

Because, Oltramari said, eventually, as Buffalo attracts more Millennials, the cost of living will rise. Adjacent small cities such as Batavia can offer some of the same advantages of bigger cities, but at an affordable price.

Besides, Millennials are the coming economic driver, so Batavia should be planning to be the kind of community they want now; otherwise, we get left behind.

The planning model for this new urbanism is called "form based."

From the 1920s until recently, all planning was built around zoning codes -- what developers cannot do, not what a community wanted.

Planning zones were radically segregated, not just separating, say, residential from industrial, but apartments from houses, offices from retail space, artisans from factories.

Mix-use was a product of the organic growth of American cities in the 19th Century, but planners tried to stamp it out in the 20th Century.

In the post-War years, as suburbs grew and highways were built to accommodate the booming auto industry, planners replaced dense city blocks with strip malls and paved over culturally diverse neighborhoods.

Batavia, with its white elephant of a mall and Urban Renewal conformity, is an example of a city that lost its soul to parking lots and drive-thru restaurants.

"What planners tried to do was try to make our cities more like suburbs, and what did we get? Very bad suburbs," Oltramari said.

Form-based codes allow cities to set a vision for what they want to be.  

"Conventional planning looks at use, not at form," said Derik Kane, a senior planner for the county, and himself of the Millennial Generation. "In looking at use, you eliminated things you might want, such as small artisans when you moved out the industry, things like that that make an economy and a community. With form-based codes, instead of eliminating things you don't want, you say what you do want."

For developers, new construction and renovation of existing structures becomes a more streamlined process.  

A community with form-based codes doesn't need to require a developer to go through the current lengthy and expensive environmental review process, Oltramari said, because a conforming proposal will already fit within those environmental requirements.

"We need to be moving at the speed of business," said Chris Suozzi, VP of business development for Genesee County Economic Development Center. "Developers don't want delays."

The City Council has already approved funding for a new master plan for Batavia and City Manager Jason Molino said form-based codes will certainly be part of the discussion as the process moves forward.

Urban Renewal did a lot of damage to Downtown Batavia, but there are still positive aspects that can be enhanced.

Kane pointed out that experts in new urbanism recommend you build on successes, rather than trying to fix problems.

For Batavia, that success would center around Jackson Square, especially Jackson Street.

Oltramari suggested borrowing a page from a small Massachusetts city and building over a portion of the parking lot on the west side of Jackson Street and putting up a row of single-story, small retail shops.

Millennials want walkable communities -- remember, they often don't have cars -- which means density, and more retail on Jackson would give them what they want.

County planning is planning on bringing in a walkability expert this summer to study Batavia, but online resources such as WalkScore.com already give Batavia low marks.

On a scale that counts 80 as pretty good, very little of Batavia scores higher than 70 (my house, three blocks south of Downtown Jackson Street, scores 67).  

Greater density and more options downtown would help improve those scores, which Millennials look at when deciding where to live.

One issue planners might wrestle with is Baby Boomers still have an auto-oriented mindset. They demand parking. They expect to park right in front of the store they wish to enter. Any proposal to eliminate parking downtown is going to meet resistance, even as data shows it's not necessary.

People will park and walk, or just walk from their residence, if it's an interesting walk, Oltramari said. 

"Nobody wants to park on the far edge of the Walmart parking and walk to the store, because it's not interesting," Oltramari said. "But if you measure it, they probably walk at least twice that distance once they get inside the store."

People will walk for blocks and blocks at Disneyland, he noted, and then come home and complain if they can't find a convenient parking place downtown.

For Millennials, if they're living and working in a neighborhood they like, parking simply isn't an issue.

"The good news is, we know how to build this way," Kane said. "We built this way for centuries.  Your villages, your main steets, are all walkable places."

Copies of the slides used in Oltramari's presentation along with related material can be found on the Web page for the county planning department.

Dollar General would like to build a new store in Pavilion, but the proposal got a cold reception from the Genesee County Planning Board on Thursday night.

The proposed location is less than 1,000 feet from the high school, and with heavy, speedy truck traffic on Route 63 and no sidewalks between the school and the store, board members thought the location presents a safety hazard.

Planners also thought the proposal doesn't fit within Pavilion's comprehensive plan.

However, the location is the one picked by town officials, Todd Hamula, a development manager for Zeremba Group, who is representing Dollar General in the project.

Originally, the company was looking at a location closer to the school, but town officials were worried about students leaving campus to go to the store, so a compromise was found with the location further away.

The location also gives the town a chance to appeal to the Department of Transportation to lower the speed limit along that stretch of road to 35 mph (the location is right near the current dividing line between a 35 mph zone and 55 mph zone).  

Hamula said Dollar General wants its stores on roads with speed limits less than 55 mph, which ruled out locations further south.

He also said the company picked the location because they believe it's well suited to the comprehensive plan. He said rezoning the property would merely extend the current business district area around Route 63 and Route 19.  

Planners thought it too far away from the current business area to meet that goal.

"We work really hard to make sure we don't bring a proposal for rezoning unless we have local support and that it doesn't go against the comprehensive plan," Hamula said.

While the town seems to take a dim view of a store within walking distance of the school, county planners were scratching their heads over the decision. The original proposed location would have sidewalks and a pedestrian tunnel nearby.

"If the concern here is traffic and kids walking, moving the location does not really solve that," said Board Member Lucine Kauffman. "I think it makes the danger even greater. Now they're walking further and there's no sidewalks."

She thinks regardless of the location, kids are going to walk to it for drinks and food.

"I think it's great idea to have place where kids can walk to after school to have a snack," Kauffman said.

The negative vote doesn't kill the project. The town planning board can still approve it with a vote of a majority plus one.

Hamula said he will pursue that outcome with the town planning board.

It ain't nothin' but a party, Frank Stanton told the Genesee County Planning Board on Thursday evening in his second attempt to win approval for a special-use permit to host mudding events on his seven-acre property in Bethany.

"This is not a business," Stanton said. "It's a party. It's just a bunch of people getting together and having fun. That's all it is."

Planners recommended disapproval of his permit and didn't offer much encouragement for him to try again.

After a meeting two weeks ago, where planners were much more receptive to his proposal but told Stanton he needed a more formal plan before they could approve it, a pair of nearby Bethany residents wrote the planning board and raised objections to these mudding events.

Robert Reyes and Elaine Shell contend Stanton operates his mudding events as a business.

There's a Facebook page with 700 likes. The events are listed on at least two mudding event Web sites. They suggest it's not just friends showing up to run their trucks in the mud.

"Whether it's a trick of acoustics, with him being in a 'dip', we don't know, but the noise level at and in our home is awful," the couple wrote. "Most of the trucks running are modified with high revving engines, have no mufflers, and are extremely loud."

While Stanton tried to assure planners that there are never more than a couple hundred people at a time on his property at 9832 Bethany Center Road, Reyes and Shell argued that as many as 400 people might be on the property at one time and are concerned that Stanton wants the events to grow even bigger.

Stanton said they can't get any bigger because he'll never be able to buy adjoining property since it's currently owned by a large and successful dairy operation. He said he doesn't make any money off the events. There are no prizes, no awards, nothing that would make these commercial events.

"This will probably fizzle out in five or six years as my kids get bigger and things change," Stanton said.

The vote recommending disapproval was 6-0.

There's a very simple reason Rochester-based Conifer wants to build a middle-income apartment complex in Batavia now, John F. Caruso told the town's planning board Tuesday night.

"Batavia's hot," said the president of Passero Associates Engineering Architecture.

"It's hot," he said, "because of your smart growth plans, your STAMP Project, yogurt plants, lots of job growth. I'm happy we're the first to get in, but there will be more. Mark my words, this is a very good area."

Caruso made his remarks during a public hearing for Big Tree Glen, a 136-unit complex proposed for West Main Street Road that Conifer wants to build in three phases.

The Genesee County Planning Board disapproved the plan Thursday night, which means in order for the town's planning board to give it the nod, the vote will need to be a majority-plus-one.

Tuesday night, developers gave their presentation to the town's planning board and local residents -- including several in opposition -- shared their thoughts on the project.

The board won't take action on the proposal until its next meeting Sept. 30.

Caruso and Andrew Crossed, a VP with Conifer Realty, gave a very detailed presentation about the proposed complex, which Crossed called a "flagship design" for Conifer. The same basic concept has been built in several other New York communities, as well as in other states.

The project would be built in three phases with the first phase containing 56 units.

There would be one bedroom, two bedroom and three bedroom apartments, with monthly rents of $592, $717 and $900.

The market for the apartments are households with annual incomes of $25,000 to $45,000.

There would be no HUD, Section 8 or other rent subsidized apartments. Tenants would go through a thorough screening process, including a background check, income verification and reference check and would be required to sign leases that would clearly spell out residential expectations.

There would be two employees of Conifer on site full-time -- a residential manager and a residential maintenance supervisor.

"What we build, we own," Crossed said. "What we own, we manage."

All infrastructure -- roads, water and sewer -- would be owned and maintained by Conifer, meaning no expense for the town.

The property would generate about $75,000 local property tax.

While Conifer will apply for a state grant to help finance construction of each phase, it's a competitive process and Conifer goes into the project knowing they may not win. Either way, Conifer is not seeking any local tax abatements though the Genesee County Economic Development Center.

The complex would include a clubhouse, which would contain the manager's office, community kitchen, fitness center and laundry.

Each unit would have its own storage unit.

"You won't see storage on patios like you do in some places," Caruso said.

Caruso said Conifer uses quality construction material and the design offers a variety of features and colors to add variety and avoid a cookie-cutter appearance.

The final plan will include a bus loop for school buses and possibly local mass transit.

There will be a total of 53 percent green space surrounding the apartments.

"We usually don't skimp on landscaping," Caruso said. "Landscaping really shows the project well when the project is constructed."

One local landlord who attended the meeting said afterward he supports the project.

"Batavia needs this," he said. "I get people in my office every day looking for something like this and it just doesn't exist."

The residents who live near the proposed development area were less pleased with the project.

The main objection from the six or so opponents was the increased potential for flooding and a belief that Route 5 already has too much traffic on it.

Larry Regal, who lives on the south side of West Main, next to the Tonawanda Creek, said there is a small drainage area that connects to the creek and when the water rises on the Tonawanda, the north side where the project is located floods.

He wonders where that water will go if the development is built and whether that will make his property more susceptible to flooding.

Other speakers shared that concern.

They also complained that it can be hard now to pull out onto Route 5 safely with the current traffic volume.

Caruso had said during his presentation that traffic studies show the two-lane road has a lot of available capacity for traffic.

The town has recently installed new sewer lines along Route 5 with the idea of attracting development to the area.

The area is zoned commercial and a variance would be required for apartments, but Caruso said apartments with no more than 80 cars per hour at peak times would generate less Route 5 traffic than just about any possible commercial development in the same location.

Frank and Jamie Stanton want to host truck mud bog races and truck mud tug-of-wars on their seven-acre property in Bethany.

County Planning Board members said they think it's a great idea.

"It sounds like a lot of fun," one board member said.

But the Stantons need to write up a more detailed plan to get a special use permit.

"It's not just to protect the town, but to protect you," said Board Member Lucine Kauffman.

A site use plan should detail all of the activities and uses, so if some future neighbor complains, code enforcement can just pull the plan and tell whether the use was approved or not.

That includes amplified, recorded music, which is part of Stanton's plan.

While the board recommended disapproval of the special use permit, board members emphatically urged Frank Stanton to return with a detailed plan.

For this application, Stanton's plan consisted of a single sheet of a handwritten description of what he plans to do.

Stanton said no more than 300 people turn up to the events, in no more than 50 vehicles, and activities start around 11 a.m. and end at dark.

"They have to," Stanton said. "Mud trucks don't have lights."

There will be two events per month from April through October.

Stanton will also need DEC permits for water drainage.

The property is located at 9832 Bethany Center Road.

Judge Rorbert C. Noonan wants more information before he decides whether to dismiss one or both of the lawsuits against Frost Ridge Campground in Le Roy.

In a written decision this afternoon, Noonan held off making a decision on the motion to dismiss the suits as well as on the motion to lift the temporary injunction against amplified music at Frost Ridge.

He's ordered a hearing as soon as possible on the assertion by attorney David Roach that the statute of limitations has expired for challenging the Zoning Board of Appeal's determination in the Fall of 2013.

"While Frost Ridge and the ZBA submitted that such minutes were filed with the Town Clerk 'within a matter of days' after the October 22, 2013 meeting," Noonan wrote, "the Town Clerk submits that she 'cannot pinpoint the date (the clerk of the ZBA) delivered the minutes of the Sept. 25, 2013 meeting to her," and that they are customarily filed only 'sporadically.' Therefore, on the existing record, Frost Ridge and the ZBA have failed to carry their burden of proof on the issue."

The ZBA clerk is currently involved with medical issues, Roach told Noonan during today's hearing, and is therefore unavailable to provide an affidavit on when she filed the minutes.

She is expected to be available in a week, he said.

Frost Ridge is fighting twin lawsuits: One filed by the Cleere and Collins families, who own adjoining property, and one filed by the Town of Le Roy asserting Frost Ridge not only is barred by the zoning ordinance from hosting amplified music concerts, but has grown beyond what was grandfathered in when the current zoning ordinance was adopted.

Under NYS law, any party challenging the ZBA's determination would have 30 days from the time the decision is filed to legally seek to overturn the decision. If it can be proved by the defendants that minutes were filed with the Town Clerk in the Fall of 2013, that would be much more than 30 days and could therefore provide grounds for the lawsuit by Cleere/Collins to be dismissed.

What happens with the Town of Le Roy's lawsuit against Frost Ridge is a little more complicated.

"Nor will the Town's action be dismissed for failure to join the ZBA as a defendant," Noonan wrote. "Although the ZBA may wish to intervene in this case, it is not a necessary party to the Town's action to enforce its zoning laws; and, it is questionable whether the Town is collaterally estopped by the ZBA's determination."

Noonan's ruling seems to back the assertion by the defense that the ZBA made a valid determination that land use at Frost Ridge in 2013 was a legal, preexisting, nonconforming use.

"Thus," he writes, "contrary to the Town's contention, the minutes of the meeting permitting the noncomforming use are sufficient for a proper determination."

No date for a follow-up hearing has been released yet.

Concerns about adequate parking and emergency vehicle access led the Genesee County Planning Board on Thursday night to recommend against approval for a senior housing apartment complex off Route 5 in the Town of Batavia.

The board's vote is not binding, but it does require the Town of Batavia Planning Board to vote with a +1 margin to approve the project.

The site for the project is 3833 W. Main Street Road, Batavia. It is 33.4 acres and would contain 110 apartment units that would be marketed to middle-income residents age 55 and older.

There's currently no senior housing in the area designed for middle-income residents, said Ben Gustafson, a civil engineer with Hunt Engineers/Architects/Surveyors, and representing the developer, Calamar.

The project calls for 1.5 parking spaces per unit, which is a variance from the town's 2-per unit ordinance. 

Gustafson explained that two per unit is excessive by modern planning standards, the county's own planning goals and what Calamar's studies of its own 15 similar complexes shows is necessary.

In some Calamar locations, the local ordinance requires only one parking space, but even there, because of Calamar's own experience, they put in 1.5.

"What we're proposing is in keeping with sustainable development throughout this country by not providing more parking than is required," Gustafson said. "Our studies show we need far less than two spaces per unit."

Multiple board members expressed concern about 1.5 parking spaces, even so.

"The 1.5 parking per unit is unrealistic," said Mel Wentland, board chairman. "For 55 and older, both members of the family usually have cars. You're under-populating parking spaces. There should be two per unit. There are also people coming to visit, nurses aides, various kinds of help. I don't think the parking (the plan) provides is adequate to meet all the needs of such a community."

Gustafson said it's common for residents in these communities to not even have cars, but if the parking proved inadequate, there's plenty of space on the property that could later be converted to parking if needed.

Another issue is the single driveway for the complex off Route 5.

The main concern of the board is access for emergency vehicles -- what if traffic is tying up the driveway, or there's an accident in front of it?

According to Gustafson, there are fewer than 30 cars an hour that will pass through the driveway, far less than similar-sized units serving younger families. The traffic impact will be minimal and the wide driveway will provide ample room for emergency vehicles.

Board Member Lucine Kauffman said no one on the board is arguing against the need for the project, but that these issues should be addressed before it's approved for development.

Local landlord Terry Platt has brought an Article 78 action against the City of Batavia over a planning committee's denial of his application to open a rooming home on East Main Street, and the Erie County judge presiding over the case indicated in court today he leans in favor of Platt's side of the case.

When Larry O'Connor, representing the city's insurance company, told Judge John Curran that he thought the case was straightforward, Curran responded, "I think it is straightforward and you're running up hill."

O'Connor said he got that feeling after listening to Curran pepper Platt's attorney, Michael Perley, with questions about how the case should be decided.

Platt sought approval from the city in May for a rooming house at 316 E. Main St. and several neighbors came to a meeting of the Batavia Planning and Development Committee and objected to the plan.

The committee voted to deny Platt the necessary approval for the project.

In the Article 78 action, Platt's attorney argues that the proposed use is both allowed by existing zoning, fits the mixed use nature of the neighborhood and could not be denied on any legal basis.

O'Connor said the committee had the authority to deny the application based on the city's Comprehensive Master Plan.

That, however, raises what Perley characterized as a "fatal defect" in the city's case -- there's no proof on the record that the city ever formally approved its master plan.

O'Connor did not provide proof of plan approval prior to arguments in the case and Curran said the record is now closed. O'Connor said, however, he could provide proof of an approval. (Outside of court, O'Connor said Curran could "take judicial notice" of the approval, even if it's not part of the record).

Perley said the city couldn't produce a copy of the master plan when Platt issued a FOIL request for the document earlier this year.

A copy was found and it is now part of the case.

City Manager Jason Molino confirmed later in the day that the City Council did ratify the master plan Feb. 25, 1997. Molino could not comment further on the case.

According to the discussion in the Erie County courtroom of Curran today, Curran must weight the role of the master plan in the committee's decision, whether the master plan gives the committee the authority to reject Platt's application, and whether he should take the extreme step of overturning the decision of a group of community volunteers over a zoning issue.

Curran spent a lot of time asking the attorneys questions about how they propose he decide the case.

"The property is properly zoned?" Curran asked.

"Correct," said Perley.

"There's no defect in the application?"

"Correct."

"There's no request for a variance?"

"There's no need for a variance."

"There's no request for a change in zoning?"

"No."

"There's is no need for a special-use permit?"

"No."

"Both you and Mr. O'Connor have experience in municipal law," Curran said. "You and I both know a lot of municipal law. If I run a (report) for special-use permit legal cases to come up with standards or if I run it for variances to come up with a standard, we know what I'll find. What do I run for this one?"

"The standard you apply is whether or not this decision was arbitrary and capricious," Perley said. "How does the committee deny an application that is proper for the property before it without misapplying the zoning law?"

O'Connor argued that the denial was consistent with the master plan, and Curran honed in on the section that says the permitted uses of buildings on that section of East Main Street (zoned C1, which is mixed use) includes professional offices, small restaurants and other small businesses, but says nothing about single-family residences, so how can the city argue that it wants to preserve the historic nature of the single-family residences?

The master plan as a whole is about preserving and enhancing current single-family residences, O'Connor told Curran.

"This is an area of single-family homes along with limited commercial use," O'Connor said. "The city wants to preserve the integrity and character of that area."

Then Curran laid out his underlying frustration: Neither attorney had filed a memorandum of law.

Such memorandums are often filed by attorneys to provide a judge with their views of how the law and prior legal precedents apply to a particular case.

Perley said he wrote such a memorandum and was surprised it hadn't been filed with the case. Since O'Connor hadn't received such a memo, he hadn't written a response.

Curran agreed to give both attorneys time to file such memos and continued the case to Jan. 30.

The options before Curran include: upholding the committee's decision; overturning the decision and permitting Platt to open the rooming house; or overturning the committee's ruling but ordering the committee to reconsider its decision.

A local businessman is planning a housing development on 100 acres of vacant farm land just off Route 5 and Seven Springs Road in the Town of Batavia, and the town's planning board has scheduled a public hearing on the subdivision application.

Peter Zeliff, an executive EIF Renewable Energy Holdings and a Batavia resident, has filed the application to convert the farmland into 76 lots for 120 single family and town home units.

The public hearing is set for 7:30 p.m., April 16 at Batavia's Town Hall, 3833 W. Main Street Road.

The location of the proposed development is north of Route 5, across from the Genesee Valley Agri-Business Park.

Zeliff is best known locally as an aviation buff, so much so that he built a large house near the west end of the Genesee County Airport runway. He owns small planes and a helicopter.

Among his charitable work is the annual WNY Aviation Camp for youngsters throughout the region.

He's also a member of the Genesee County Economic Development Center Board of Directors. CORRECTION: Zeliff is a member of the Genesee Gateway local Development Corporation, which is affiliated with GCEDC.

The owner of the parcel is listed as Oakwood Hills, LLC. It's currently assessed at $128,200.

Pete McQuillen is pushing forward once again with his plans to build a senior living community off Robbins Road in Le Roy, and if Thursday's Genesee County Planning Board meeting is any indication, he's going to face renewed opposition.

The board voted unanimously to recommend approval of a zoning change to allow the project to move forward.

McQuillen spoke to the board, and so did David Boyce, a Filmore Street resident who joined his neighbor, Town Supervisor Stephen Barbeau, in a lawsuit against the Village and the Town of Le Roy.

The lawsuit eventually led to the village concluding some of its procedures in approving the project were not in compliance with state law, which has left McQuillen with no choice but to start the approval process over.

Boyce said emphatically he is favor of the project, but then listed a series of complaints, that if completely addressed would completely nullify McQuillen's current plans.

Chief among Boyce's complaints is that in targeting 55-and-older residents, Robbins Nest Drive doesn't comply with the village master plan.

Boyce said the master plan calls for housing for the 30 to 55 age group, which is a primary source of spending.

He also said the project density is out of compliance with the master plan.

Jim Duval, county planning director, said staff has concluded the project does comply with the master plan.

Robbins Nest Drive must still go through several more steps of approval, including approval of a final plan, before McQuillen can proceed with construction.

Also, in another matter, the planning board recommended that the City of Batavia not approve a sign variance for Gold Rush at 4152 W. Main St., Batavia.

Owner Jim Vo put up several large promotional signs in windows in a belief that they complied with city ordinance. City code inspectors later told him the signs were out of compliance, even though they are similar in content and size to signs that had been allowed for a previous tenant.

Besides advertising his business, the signs are also important privacy screens for customers while they are in his store, he said.

However, Vo said he wants to be a good business neighbor and if he can't get approval for his signs, he'll find a way to comply with the code and meet his customers' expectations for privacy.

The developers of a proposed housing development off Stringham Drive have been given an 11-page document by the Town of Batavia Planning Board and asked to respond within 60 days to issues and questions the board still has about the project.

The "scoping document" is an essential part of the environmental review process and the project, known as the Gardner Estate Subdivision, cannot go forward without passing the environmental review.

"Scoping involves looking at what they need to do to meet (the environmental review guidelines)," Board Chairwoman Kathy Jasinski said.

The scoping document asks for information on such things as the purpose and need of the project, type of ownership and compliance with current zoning as well as impacts on traffic and water.

Gardner Estates is being proposed by Rochester-based Nathaniel Development Corp.

Originally, the company was proposing apartment complexes, then, when that met with resistance from the community and the board, Nathaniel proposed condominiums. After that proposal was rejected, they developed a plan for single-family homes, which is under review now.

From the start, Nathaniel has seemed intent on building low-income housing in the area, which neighboring residents oppose and doesn't necessarily fit into the town's master plan.

The town needs more middle-income housing, and the Stringham Drive area was intended to provide parcels to accomodate that type of growth -- especially if the Genesee Valley Agri-Business Park proves successful.

However, Jasinski noted that Nathaniel has been willing to mold its plans all along to address board concerns, so Nathaniel might very well turn in a satisfactory scoping document.

If the developer meets the requirements of the environmental review process, there will be little the board can do to block the project.

"We have to abide by rules of zoning," Board Member Paul McCullough said.  "We can’t look at it and say 'In my heart of hearts, we don’t want X.' If it doesn't say that in the book of rules, tough. We have to abide by the rules."

It's back to the drawing board for the parcel subdivision of the proposed Genesee Valley Agri-Business Park.

Because the first confirmed tenant for the park -- Bogata, Colombia-based Alpina Products -- has set its sights on a different plot of land than originally thought, the subdivision boundaries need to be reset.

Tuesday night, the Town of Batavia Planning Board set 7:30 p.m., June 21, as the time and date for a public hearing on the revised boundaries.

Members of the Genesee County Economic Development Center will also make a presentation about the project to the board that night.

Zoning Enforcement Officer Bruce Gerould also told the board that the revised parcel plan will include a two-acre plot right on Route 5 for an office complex for an advertising agency.

Because the agency specializes in marketing for agricultural businesses, it apparently fits the requirements of the agri-business park, Gerould said.

A special use permit and site plan were approved for a proposed Holiday Inn Express on Tuesday night by the Town of Batavia Planning Board and a spokesman for the hotel owner said the only step remaining is to secure a building permit.

However, an attorney for a group of hotel owners who oppose the project say the fight isn't over.

Attorney Thomas Warth said the conditional use permit may not be valid because for approval, a project on this particular piece of property must be compatible with an industrial park, not overly increase traffic on local roads and not be on a road ill-suited to retail operations.

“It fails on all those counts," Warth said.

But with the approval in hand, Buffalo attorney Corey Auerbach said his client is ready to apply for a building permit and start construction in June.

There had also been objections raised about the lack of a left-turn lane on Route 98, but Kenmore-based architect Mark Tiedemann said the turn lane is not required.

"We have a credible expert who says it’s not a requirement and doesn’t need to be mitigated at this time," Tiedemann said. "There was a traffic report done in 2007 that said no turn lane was required and there's been nothing added (to the complex) since then."

Warth said the site plan is also open to challenge because it shouldn't have been approved without a variance for parking.

"I think this planning board approval is invalid until they address the parking issue," Warth said.

As for next steps, Warth said he would rather not take the matter to court, but instead try to talk the matter through to a suitable resolution.

"Right now their approval is very vulnerable if it were to go to a court action, but I’d rather save the time and money and address it by having them do the right thing at the board level," Warth said.

The Holiday Inn Expres, being developed by Michael Patel, would add 80 rooms to the current hotel stock and the other owners say they already have too many vacancies.

Tiedemann said he's been involved with previous hotel projects in the area and each time one comes up, the occupancy rate is about the same as it is now, and after each new hotel is built, it doesn't go down. He also noted that in the past two years, two hotels have changed hands.

"I know all of the Patels and they don't invest in things that lose money," he said.

After a heated meeting got confrontational, the Town of Batavia Planning Board agreed to table consideration of a proposed housing development until the next meeting on March 15. At issue, is whether to reopen the environmental review for "Gardner Estates."

Board members already approved the State Environmental Quality Review Act (SEQR), declaring the development would not negatively impact the surrounding area.

But, after a few discrepancies and minor changes to the project arose, Planning Board Chair Kathleen Jasinski invited the applicant, Frank Andolino, president of Nathanial Development, to come to the meeting to clarify a few points.

Instead, Andolino sent his attorney, James Bonsignore, of Fix Spindelman Brovitz & Goldman.

"I'm very disappointed," said Jasinski to Bonsignore as he sat down before the board.

"Not disappointed that you're here, but that he (Andolino) isn't."

It was clear throughout the meeting that most board members had an uneasy sense about the proposed Gardner Estates project. The newest proposal from the applicant is to build single-family homes off Clinton Street Road. Previous proposals included plans for apartments and/or duplex housing.

Board members basically told Bonsignore that they felt a little swindled when it came to two issues. (A) Planning for a cul-de-sac versus a road to connect with Clinton Street Road, and (B) the developer's funding sources.

Board members want to see what the state Department of Transportation has to say about the road options, so Tuesday evening focused on funding.

Most members of the board agree that they have asked many times in the past if the developer planned to use conventional or public funds. The latter would only be granted if low-income housing were part of the plans, hence their concern about the source of funding.

At past meetings, they were led to believe that public funds would not be used to finance the project.

"Whether or not this project is publicly funded has absolutely nothing to do with whether or not this application meets the zoning requirements for the division of land," Bonsignore said.

He acknowledged the question had been asked repeatedly but would not characterize the answers given. He claimed that at all times the question was "improper," and answers were "for informational purposes only."

A board member pointed out that they weren't called "improper" at the time and the replies indicated the project would use conventional funding.

Bonsignore told them "You can't reopen SEQR because you having second thoughts or you're regretting the determination...We said we intend to pursue conventional funding but we absolutely did not exclude the possibility of public funding.

"We never misrepresented anything. This is not a trial, and if this is how we are going to be questioned I am going to leave."

One board member cited two problems he had with public funds being used to build Gardner Estates. Chiefly, there's already an overload of public housing in the area. Secondly, the funds should not be "wasted" on building public housing in a community that already has plenty of it.

When the board agreed to table the issue, polite apologies were exchanged but there seemed to be a lingering distrust of the mysterious developer (who no one on the board has ever met or spoken with) and his intentions.

Board Member Lou Paganello said he has repeatedly tried to get information about the company and has come up with nothing but a Web site.

"I wasn't given any information about the company at all -- not just for the financing but for the reputable company that supposedly it is," Paganello said. "When you're talking about a project that concerns a town, you would think that you could come up with some information or a call or a letter and nothing happened. Nothing at all."

Local hoteliers are so opposed to a planned Holiday Inn Express -- just north of the Thruway, off Route 98 in the Town of Batavia -- that they've hired a lawyer to make their case to local officials.

Thomas J. Warth (pictured), of Hiscock & Barclay out of Rochester, tried to make the case against the new hotel before the Town of Batavia Zoning Board on Tuesday night. But after a spirited discussion, the board voted unanimously to grant the new hotel permission to exceed local height requirements by 10  19 feet.

With local occupancy rates averaging 45 to 50 percent, hotel owners say there is no need to build another 40, let alone maybe 80, rooms (the final plans have not been presented yet).

The $3.25-million project, located at 8360 Commerce Drive, next to an existing Hampton Inn, will make use of a banquet facility already constructed at the location and include an indoor pool, fitness area, lobby and meeting space.

The developers are seeking tax incentives from the Genesee Economic Development Center. The proposed site is part of a previously prepared industrial park, so the developer will save on construction costs by going into a "shovel ready" complex.

The government-backed cost savings, combined with variances to current zoning laws, are giving the new competition too much help, local hotel operators complain.

"Why can't they live with a 40-foot height if we can survive with a 40-foot height?" asked Vibhu Joshi, owner of Days Inn and Super 8. "The new hotel is getting all kinds of goodies and all kinds of variances. I can see maybe a use variance, but why a height variance?"

Hotel owners are concerned that the height variance will allow the developer to put in even more rooms, though it wasn't clear from the application whether the additional 19 feet was for another story on the building (making it four instead of three) or if the extra height was just needed for elevator shafts.

"The additional rooms in this marketplace will have a significant impact on everybody else," said Richard Lewis, acting manager of the Travel Lodge, which recently underwent significant renovation.

Zoning Board Chairman Gary Diegelman mentioned a couple of times during the meeting that economic issues are not part of the zoning approval process. He said the owners will need to raise those concerns with the planning board, which will have final say on the variances.

Warth argued that even economic issues aside, the developer -- who was not represented at the meeting -- has not made a case for why the height variance is needed.

Diegelman said, "point taken," but added later, "I don't see any (neighboring) businesses here objecting to the height variance."

The project will go before the planning board at a future meeting, but that agenda has not been announced yet.

A Darien resident who wants to open a small business for auto repairs and sell a few cars at 606 Broadway got a little push back from the Genesee County Planning Board.

On Thursday, the board disapproved the proposed business because it apparently does not have a complete site plan according to code.

However, a representative of owner Mark Bernen said the site plan was completed exactly according to instructions from the Town of Darien Planning Board.

"We went back and forth and back and forth with the Town of Darien Planning Board," said Joyce Stevens. "He did everything on plans exactly like they said."

Planning Director Jim Duval said that the county's vote is advisory and the town board has the capacity to override the vote.

In another matter, Andrew Schmieder received approval to construct a new small house at 3438 Railroad Ave., Alexander.

Schmieder purchased the property at the county auction with the intent to restore the existing home, but it was too badly damaged by flooding and had to be torn down.

He said his mother will live in the new house.