VILLAGE OF EAST AURORA BOARD OF TRUSTEES

VILLAGE OF EAST AURORA BOARD OF TRUSTEES A REGULAR MEETING OF THE VILLAGE OF EAST AURORA BOARD OF TRUSTEES WAS HELD MONDAY, DECEMBER 3, 2001 AT 8:00 PM IN THE BOARD ROOM AT EAST AURORA VILLAGE HALL. Present: Mayor John Pagliaccio Trustee Lowell Dewey Trustee David DiPietro Trustee Sara Foster Trustee Patrick McDonnell Trustee Christine Peters Trustee Robert Ruffner Also Present: Village Administrator/Clerk-Treasurer Patrick Richey Village Attorney Thomas Andruschat Representatives of the media Approximately thirty-five members of the public Mayor Pagliaccio called the meeting to order at 8:00 PM and asked everyone to stand and pledge allegiance to the flag. Trustee Sara Foster moved approval of the minutes of the November 19, 2001 regular Board of Trustees meeting as printed and presented. Trustee Robert Ruffner seconded the motion. Upon voting, the motion carried unanimously. Trustee Christine Peters stated she and other Board members had reviewed vouchers numbered 30783 through 30877 for fiscal year 2001-2002 and offered the following motion: That the Village Board of the Village of East Aurora accept and order paid Voucher numbers 30783 through 30877 for fiscal year 2001-2002 as printed and presented. Seconded by Trustee Patrick McDonnell. Upon voting, the results were as follows: Trustee Dewey Trustee DiPietro Trustee Foster Trustee McDonnell Trustee Peters Trustee Ruffner Motion carried. 1

PUBLIC HEARINGS Mayor Pagliaccio opened a public hearing at 8:05 PM to receive public comment on a proposed local law amending Chapter 69 of the Code of the Village of East Aurora to regulate noise as part of the PEACE AND GOOD ORDER section of the Code. He read provisions of the proposed local law related to prohibited acts and exemptions to those provisions. Patricia Rice Baber of 120 Blake Hill Road stated she feels that there are circumstances that warrant a noise ordinance and requests the Board to pass the law. Gregg Gonzalez of 89 Knox Road thanked the Board for proposing these changes and urged the Board to pass the law. Rolf Weberg of 107 North Grove Street stated he thinks the proposal is a great start but doesn t mention leaf blowers. Arthur Giacalone of 140 Knox Road urged the Board to pass this proposed local law. Mike Smith of 351 South Grove said he thinks cars with radios that can be heard 3-4 blocks away is excessive and said such a thing is a major offense and should be penalized. Ed Mehl of 180 Blake Hill Road said he does not believe you can legislate common courtesy. Liz McNamara of 461 Girard Avenue said she was concerned people would not be allowed to use snow blowers in the early am. Joanne Skelly-Gearhart of 48 South Willow Street said she thinks that daytime noise should be included as well. Lee Baber of 120 Blake Hill Road said noise from automobile horns would be included as well. Laura Mehl of 180 Blake Hill Road asked how the law would deal with issues between neighbors and Ed Mehl clarified with the Board that there is already a law on the books for disturbing the peace. There were no other comments so the Mayor closed the public hearing at 8:15 PM and referred the matter to the Board for consideration. Trustee Christine Peters said the noise ordinance had first been considered some time ago and the Board did not approve it at that time. She said enforcement would be needed to make it effective and that this law would back up the police. 2

Trustee Dave DiPietro said that often good will is gone from neighborly relations and that sometimes the neighbors are not responsive to one another. He said this law was necessary for that one percent of the time. Trustee Patrick McDonnell said that he has never been for a noise ordinance but he had come around because people are not kind to one another. He said it is unfortunate that government must react in this way. Trustee Lowell Dewey stated he liked the intent section of the law in that it explains the Village is intending to regulate unreasonable noise. Mayor Pagliaccio related some of the state level legislative authorization for this law. He also noted there is an existing penal law and a local law for disorderly conduct. He also said provisions of the state Vehicle and Traffic law applies to loud vehicles. Trustee David DiPietro offered the following resolution and moved its adoption: RESOLUTION NO.: 01.12.3.1 DATED: December 3, 2001 WHEREAS, Proposed Local Law Number 7-2001 to amend Chapter 69 of the Code of the Village of East Aurora has been presented to the members of the Village Board of Trustees, and WHEREAS, a Public Hearing as required by law has been held concerning Proposed Local Law Number 7-2001 on December 3, 2001, NOW THEREFORE BE IT RESOLVED that Proposed Local Law Number 7-2001 be approved and adopted as printed and presented, and BE IT FURTHER RESOLVED that this local law shall take effect immediately. Seconded by Trustee Christine Peters. Upon voting, the results were as follows: Trustee Dewey Trustee DiPietro Trustee Foster Trustee McDonnell Trustee Peters Trustee Ruffner Motion carried. BE IT ENACTED by the Board of Trustees of the Village of East Aurora, New York, as follows: 3

1. Chapter 69 of the Code of the Village of East Aurora, New York, entitled PEACE AND GOOD ORDER is amended to read as follows: NOTE: Material within brackets is eliminated. The material underlined is added to and included in the Code of the Village of East Aurora, New York CHAPTER 69 PEACE AND GOOD ORDER Section 69-1 69-11 ***** Section 96-12 NOISE A. Legislative Intent. The making and creating of disturbing, excessive, or offensive noises within the limits of the Village are a detriment to the public health, safety and welfare of the residents. Every person is entitled to an environment in which disturbing, excessive, or offensive noise is not detrimental to his or her life, health, or enjoyment of property. This law is to be construed liberally, but it is not intended to be construed so as to discourage the enjoyment by residents of normal activities. B. Prohibited Acts. No person with the intent to cause public inconvenience, annoyance or alarm, or recklessly creating a risk thereof, shall cause, suffer, allow or permit to be made unreasonable noise. For purposes of this law, unreasonable noise is any disturbing, excessive, or offensive sound that disturbs a reasonable person of normal sensitivities. The following acts are declared to be prima facie evidence of a violation of this law. The enumeration shall not be deemed exclusive. 1. Any unnecessary noise from any source between the hours of 11:00 P.M. and 7:00 A.M. the following day. 2. Noise from a dog or other pet animal that is continuous and exceeds fifteen (15) minutes. 3. Noise from a burglar alarm or other alarm system of any building or motor vehicle which is continuous and exceeds fifteen (15) minutes. 4. Noise from any sound reproduction system, operating or playing any radio, portable radio or tape player, television, tape deck or similar device that reproduces or amplifies sound in such a manner as to be heard one hundred (100) feet from its source or over any property line. 5. The erection, including excavation, demolition, alteration or repair of any building other than between 7:00 A.M. and 9:00 P.M., except in case of a public safety and emergency. 4

6. The outdoor operation of power equipment, except for properly muffled lawn mowers and snowblowers between 10:00 P.M. and 7:00 A.M. the following day. 7. The sounding of any horn or signaling device of any automobile, motorcycle or other vehicle for any unnecessary or unreasonable period of time. 8. The making of improper noise or disturbance or operating an automobile or motorcycle in such a manner as to cause excessive squealing or other excessive noise of the tires. C. Exemptions The provisions of this law shall not apply to the following: 1. The sound created by any governmental agency or by the use of public warning devices. 2. Noise from municipally or school sponsored celebrations or events. 3. Noise from individually sponsored event where a special permit for public assembly or other relevant permission has been obtained from the Village. 4. The operation or use of any organ, radio, bell, chimes or other instrument, apparatus, or device by any church, synagogue, or school licensed or chartered by the State of New York, provided such operation or use does not occur between the hours of 10:00 P.M. and 8:00 A.M. 5. The sound created by public utilities in carrying out the operation of their function. D. Penalties. Any person who violates any provision of this chapter shall be guilty of a violation and shall be subject to a fine as provided for in section 69-13. The Village may also seek injunctive relief to prevent the continued violation of this law. E. Severability. If any word, phrase, or part of this local law shall be declared unconstitutional, the same shall be severed and separated from the remainder of this local law, and said remainder shall continue in full force and effect. F. Effective Date. This law shall be come effective immediately upon filing with the Secretary of State. 5

Section 69-[12] 13. Effective Date: This local law shall become effective December 3, 2001 Mayor Pagliaccio opened a public hearing at 8:27 PM to receive public comment on an application for rezoning and development plan approval submitted by Frank Delia and Dr. Richard Ferguson for premises at 771 main Street. The hearing notice was read and the mayor noted letters had been received in opposition from Peter Pitegoff and Paul Nellis. A letter recommending approval was received from the Chamber of Commerce. The mayor also noted positive recommendations from the Planning Commission and the safety Committee along with a recommendation from Erie County. Dr. Richard Ferguson gave a presentation on his plans for the property stating he wished to turn the property into an office for his neurology practice that he said is currently the only neurology practice in East Aurora. He said the office would be open from 9:30 to 5 and he is only open two days per week in East Aurora. He said he would take the west façade of the building and make it more like its original appearance with removing the added door and restoring the original windows if possible. He said the garage would be moved backwards. Dr. Ferguson also stated that he was concerned about the future uses of the property given the conditional nature of the rezoning request. He said he would be worried about to whom he could potentially market the property. Geoff Hintz of 866 East Main Street asked for clarification on the letters received by the Board. Don Hoeh, owner of 779 East Main Street asked about the use of the property and asked how many patients would come to the office daily noting that Main Street narrows in the vicinity of 771 Min Street. Paul Nellis of 793 Main Street said he thinks the doctor s proposal is admirable but that he is proud that East Main has been revitalized. He said he is trying to preserve what is there and approval of this request would be the first step to something else happening. He asked that the Board please not approve the rezoning application. Ray Hoffman of 502 Main Street said he had questions about the proposed rezoning and what conditions would be placed on the specific use of that property. Ron Kimmel of 807 Main Street said this proposal was defeated before and that the applicant was beating a dead horse by having it come up again. Arthur Giacalone of 140 Knox Road said it was his understanding of the Village Code that it only comes back to the Village Board if the doctor did not sell the property to another doctor agreeing to utilize it under the same conditions. He also said that a professional office could be in a residential zone if it was in a home and the predominant 6

use of that property was as a home and there was a maximum of one employee. Mr. Andruschat confirmed that was true. Gary Grote of the Greater East Aurora Chamber of Commerce reiterated the Chamber s support of the project and said it would be a less intensive use than an automobile sales office. Don Hoeh asked for clarification that this application was for Dr. Ferguson and not Frank Delia and was told yes. Martha Collins of 898 Main Street said the house should be restored and kept as it is without a lot of additional parking. Trustee Peters pointed out that there would be eight spots in the back. Mrs. Collins said she was concerned people would park on Main Street. She said it is a special home and should be kept that way. Sue Becker of 460 Prospect Avenue said she was for the application. She said she would like to keep this doctor in East Aurora and that the Board should accommodate him. Ed Mehl of 180 Blake Hill Road said he thinks having a neurologist in East Aurora is a good thing. Don Hoeh said he was concerned about possible demolition of the property if the Dr. s proposal were not approved. Mr. Andruschat replied that the owner would need a permit in order to demolish the building. Linda Nellis asked if Mr. Delia could re-buy the property and was told he could with the same conditions attached to it that the doctor might receive. Ray Hoffman stated that is Dr. Ferguson has been here six years then there should be other property that he could find. Dr. Ferguson responded that he wants to stay in East Aurora and would like to contribute to the community. He said he was not sure what private person would buy this house and said he thinks it would be a great use that the community would be proud of. He said he had visited the surrounding neighbors the previous Thursday and they voiced no objection. Paul Nellis of 793 Main Street said he thought what he had heard from the doctor sounded very positive and he would withdraw his letter and his opposition. Ron Kimmel of 807 Main Street said he was glad it had nothing to do with the used car lot and he stated he would withdraw his objections and be in favor of Dr. Ferguson s proposal. Mike Smith of 351 South Grove said it did not sound like such a bad idea to him. 7

Rolf Weberg of 107 North Grove Street said he wanted to speak in favor of the proposal and said the proposed use of the property would be a nice compromise and he would welcome the doctor here. Don Kraver of 750 Oakwood Avenue said he would be in favor of the proposal as a great transitional use. Arthur Giacalone of 140 Knox Road said that he is in favor of the proposal, as it would act as a buffer. Gloria Elmer of 789 East Fillmore said she disagreed with a lot of what had been said. She presented a written letter to the Board stating she is opposed to the rezoning. She said it would be reprehensible and egregious of the Board to rezone and urged the Board to vote no. Dr. Ferguson said he would normally see eight to fifteen patients a day and said, in response to Ms. Elmer, that it is unfair to suggest he is a foreign entrepreneur when he s been in East Aurora for some years and grew up in South Wales. Don Hoeh said he owns the property with the driveway just on the east side of 771 Main Street and he would be wholeheartedly for this proposal. Martha Collins said she was still concerned about parking for the eight to fifteen patients per day. There being no further public comment, the Mayor closed the public hearing at 9:10 and referred the application to the Board. Trustee Dave DiPietro asked Dr. Ferguson if it was necessary to have eight spots. Dr. Ferguson replied yes if he gets behind in seeing his patients. Trustee DiPietro also asked Dr. Ferguson to consider donating any trees that might come down. Trustee Lowell Dewey stated he was not moved by the threat of demolition because he has not seen that this building cannot be used as a single-family house. Trustee Christine Peters said that she believes Kelver Court was the buffer between the auto dealership and the houses on Main Street and she was not in favor of rezoning another residential property here for a commercial use. Trustee Sara Foster said she had not seen a rendering of the front of the building. Dr. Ferguson replied that he would keep the front intact but might replace a portion of the copper roof. Mayor Pagliaccio said he shared the sensitivities of many of those living along East Main Street, but he recognizes that the doctor s proposal is a soft use. He noted the property would be conditionally rezoned R-C and not C-M as an extension of the auto dealership. 8

Mr. Andruschat reminded the Board that the issue before the Board is whether or not the rezoning is compatible with the surrounding property uses. He said the number of patients or employees does not have much bearing on its compatibility. Trustee Robert Ruffner offered a motion to table the application. There was no second. Trustee Patrick McDonnell offered a motion to table the application with direction to the staff to prepare positive findings. Trustee David DiPietro seconded the motion. Upon voting the results were as follows: Mayor Pagliaccio Trustee Dewey Trustee DiPietro Trustee Foster Trustee McDonnell Trustee Peters Trustee Ruffner Motion carried. At this point the Mayor briefly recessed the meeting. Upon the return to order approximately eleven members of the public were present in addition to those previously listed. SPEAKERS AND COMMUNICATIONS The Mayor then invited comment from the public on any topics either on or not on the agenda and asked people to limit their comments to no more than five minutes. Gregg Gonzalez of 89 Knox Road stated that he was concerned that the board was listening to and understanding Dr. Ferguson but not the residents of Grey Street when it came to the new Tops. He also urged the Board to hold a public hearing on Benderson plans for pedestrian access at the plaza and urged the Board to have a consultant look at this as well. Joanne Skelly-Gearhart of 48 South Willow said she would second Mr. Gonzalez s comments and that there should be a public hearing. She says she has nearly been hit several times when she has gone to the plaza. Rolf Weberg of 107 North Grove Street echoed this and said he has nearly had two accidents in the last two years at the plaza. He said he thinks the proposal is an interesting start and urges the Board to get the best ideas. Gus Arndt of 31 Knox Road stated things never seem to get changed. He said they were limited on the west end of town by traffic considerations and that traffic had not changed 9

for the good. He said he had spoken or complained several times about semi-trucks on the street and about no parking being allowed on either side of the street. He also said the traffic lights on Grey are not synchronized. He said that the Village Board and the County do not help at all and he would like a Board that listens to the people that have a problem. Geoff Hintz of 866 East Main Street said he supports having a public hearing on the pedestrian access plan for the plaza. He said that letters to Benderson directly would be ineffective and the Trustees should understand what is going on. Lee Gearhart of 48 South Willow Street said a public hearing on pedestrian crosswalk plans should be held also. Arthur Giacalone of 140 Knox Road said it was close to preposterous that the Board should not consider pedestrian access at the plaza as part of a public hearing. He said the Board would turn its back on its residents and that Trustees DiPietro, Foster and Peters had all told him in March that it was frightening in the plaza. Mr. Giacalone then stated he was representing the Carrolls Corporation in his following comments whereby he read a letter to the Board that he previously distributed. Gregg Gonzalez of 89 Knox Road stated the pedestrian signal button at Oakwood and Hamburg is not currently working. Rolf Weberg of 107 North Grove stated he is bummed by the development plan for the old Tops site at 186 Main Street. He said it s a real bummer for the Village to put that garbage here that is really not necessary. He also stated having a public hearing on the plaza parking lot still makes some sense. Gloria Elmer of 789 East Fillmore Avenue stated she had heard that the circle was being threatened as part of the Main Street reconstruction process. The mayor told her that was not the case. She also said she was in favor of a public hearing on plans to improve pedestrian traffic in the plaza. She also suggested reforming the architectural review board. Ms. Elmer also said the Board was bullied by the remark regarding possible demolition of 771 Main Street. Gus Arndt of 31 Knox Road said he brought up the issue of beer ads at the Rite Aid when it was first proposed. He said they were terrible. He also stated the worst thing ever done was the yield sign at the circle and said the Board should bring this up with the state. Trustee Christine Peters said that recent changes in the sign code would force the Rite Aid leader board to come down within a specified time frame. Trustee Lowell Dewey responded to Mr. Arndt s comments stating maybe something could be done about other trucks besides the Tops trucks on Grey Street. He also said he was concerned about two big box drug stores near one another. Trustee Dewey stated he 10

had asked for good pedestrian and traffic ingress and egress at the plaza and said by definition plazas are not pedestrian friendly. He said he could understand why the Board would not have a public hearing on pedestrian traffic in the plaza because of liability concerns about dictating what happens within private property. Trustee Patrick McDonnell stated he wanted to have a public hearing on the pedestrian traffic plan and said he wanted to motion the same. Mr. Andruschat asked him what the legal purpose of the public hearing would be. Trustee McDonnell replied that he would not mind having a public hearing because Benderson will deep-six any comments they receive otherwise. Trustee DiPietro stated he was concerned that he would not know what the public s comments would be and Trustee McDonnell said he had no problem listening to the public. Trustee Foster asked if what was before the Board constituted an amendment to a development plan. Mr. Andruschat replied that, in his opinion, it did not. Trustee McDonnell stated he believed it did. After further discussion, Trustee McDonnell stated he would move to add discussion of this item to the agenda. There were no additional speakers. STAFF REPORTS The Mayor asked if staff members were present to offer reports on any matters. Mr. Richey reported that the Village had received notification from the Erie County water Authority that water rates for bulk customers, including the Village of East Aurora, would increase by four percent effective January 1, 2002. Mr. Richey also reported that another DPW employee would be out for some time after suffering a heart attack. Finally, Mr. Richey reported that Police Chief Bill Nye was in Florida attending a course sponsored by the International Association of Police Chiefs on Managing a Small Department. He reported that Chief Nye had been selected for this all-expenses paid course based upon his submission of a potential magazine article describing his experiences in East Aurora. Mayor Pagliaccio noted the Board would congratulate chief Nye both individually and collectively. OFFICIAL CONSIDERATIONS The Mayor asked if any Board members wished to comment on any particular topic. Trustee Patrick McDonnell offered a motion adding to the agenda item 8B regarding the setting of a public hearing on proposed pedestrian traffic circulation plans for the Aurora Village Plaza. The motion was seconded by Trustee Dave DiPietro and carried unanimously. 11

Trustee David DiPietro stated the resident of 512 Ridge Avenue had expressed concerns about trees behind his property along Tannery Brook. He asked if the Village could remove them. Mr. Richey responded that the land along Tannery Brook is all private property and the Village has no easements along the Brook. He also said the Village Code makes clear the property owner s obligation to keep the brook free of trees and debris. He said the Village only entered upon private property in the event of an emergency such as severe flooding. Trustee DiPietro asked if the property owner could be liable if something happened. Mr. Andruschat replied the property owner should consult his survey to see where the trees are located and perhaps his own attorney. Mayor Pagliaccio reported the Village has received notification of the water rate increase being imposed by the Erie County Water Authority of four percent effective January 1, 2002. He also reported the Village had been notified by Univera of a 15.7% increase in health insurance premiums effective January 1, 2002. UNFINISHED BUSINESS The Planning Commission is still considering proposed developments at the corner of Olean and Oakwood and at 186 Main Street. Mayor Pagliaccio noted that a public hearing was set for December 17, 2001 at 8:00 PM upon an application for Mid-Main development plan approval submitted by Nicefero & Braun for premises at 285 Main Street. Mayor Pagliaccio noted an application for development plan approval for 39 South Grove Street is still awaiting action by the Planning Commission and Historic Preservation Commission. NEW BUSINESS Trustee Sara Foster offered a motion referring to the Planning Commission an application for a special restaurant permit submitted by the Aurora Chinatown Kitchen for premises at the Aurora Village Plaza on Grey Street. Seconded by Trustee David DiPietro and passed unanimously. Trustee Patrick McDonnell offered a motion setting a public hearing for January 7, 2002 at 8:00 PM to receive public comment on pedestrian traffic plans submitted by the Benderson Development Company for the Aurora Village Plaza. He stated the basis for the hearing would be consideration of the pedestrian plan as an amendment to the original approved development plan for the plaza. Trustee David DiPietro seconded the motion. Trustee Lowell Dewey said he would not be opposed to an informational hearing and Trustee Peters asked if holding a public hearing on this basis would be possible. Mr. Andruschat said he was advising the Board they should not take any position on this whereby Trustee McDonnell asked if the Board had not already done this in the original development plan. Mr. Andruschat replied that he could not recall anything that approved or disapproved internal circulation at the plaza. 12

Further discussion followed with Trustee Dewey stating he had designed over 40 parking lots in Amherst and nobody from the Town ever told him how to lay it out. Trustee DiPietro said he would like to give the public a chance to speak and listen stating by not doing it looks like the Board is trying to hide something and trustee McDonnell said it would look like the Board was not listening to the public. Trustee Ruffner said he was in favor of holding the hearing while Trustee Foster said she was not afraid of a long night or public input, but that there seemed to be no basis for holding the public hearing. Trustee Dewey again stated the Board should consider an informational hearing but Trustee McDonnell said he would still like a public hearing. Trustee McDonnell moved the question and demanded a roll call vote. Upon voting the results were as follows: Trustee Dewey Trustee DiPietro Trustee Foster Trustee McDonnell Trustee Peters Trustee Ruffner Mayor Pagliaccio Motion defeated. Trustee Lowell Dewey offered a motion setting aside time for an informational hearing for January 7, 2002 at 8:00 PM to listen to public comment on pedestrian traffic plans submitted by the Benderson Development Company for the Aurora Village Plaza. He stated the Village should invite Benderson to the meeting and that rules would be established for conducting the meeting. The motion was seconded by Trustee David DiPietro and passed unanimously. There being no further business Trustee David DiPietro offered the following motion: That the December 3, 2001 meeting of the Village Board of Trustees be adjourned. Seconded by Trustee Robert Ruffner. Upon voting the results were as follows: Trustee Dewey Trustee DiPietro Trustee Foster Trustee McDonnell Trustee Peters Trustee Ruffner Motion carried. 13

Meeting adjourned at 11:05 PM. Respectfully submitted, Patrick E. Richey Village Administrator 14