ZBA Minutes – September 2019

(845) 626-2434

MINUTES of the September 19th, 2019 Town of Rochester Zoning Board of Appeals, held at the Accord Fire House, Accord, NY.

Chairman Mallery called the meeting to order at 7:00PM.

Chairman Mallery recited the Pledge to the Flag.

Cliff Mallery, Chair
Steven Fornal, Vice Chair
Charles Fischer
Bruce Psaras
Erin Enouen

ALSO PRESENT: Mary Lou Christiana, Attorney for the Town. William Barringer, Alternate. Brianna Tetro, Secretary.

2019-06AV- Tardibuono, Martha
Area Variance
205 Rock Hill Rd./ SBL: 77.2-4-39.100/R-2 district
Proposed Use: 8’ Fence, road side for privacy
-Area Variance required: 140-13H(2): Any fencing shall not exceed a height of four feet when located in front yard setback.

Ms. Martha Tardibuono and Ms. Nancy Tardibuono were present on behalf of the application.

Nancy Tardibuono explained they wanted to put up a 6ft fence.

Martha Tardibuno stated she had put an 8 ft fence on her zoning classification application because of the road level. The fence would still be 6 ft but it would be 8ft with the rise of the road.

Nancy Tardibuono said from May until September there are tons of cars and people that cut across their property due to the bungalow colony nearby their home. She stated cars even drive off the road and onto their property quite often.

Martha Tardibuono said they had spent about $5,000.00 in landscaping to plant trees in order to give their property more privacy and to deter people from walking onto it as well as keeping cars off the property as well. She stated that some of the trees took but most of them died as their property gets a lot of water.

Chair Mallery asked if they had a fence up at the moment.

Martha Tardibuono said they did not but they had agricultural fencing up at the end of the property where they had growth.

Chair Mallery asked if the fence was for the perimeter of the property.

Nancy Tardibuono said no, that it wasn’t for the entire property, just the top part.

Chair Mallery said he had seen aerial pictures of the house and it looked fairly isolated.

Martha Tardibuono stated the house was isolated but the property itself wasn’t isolated from the road.

The Board discussed the application.

Mr. Psaras asked what the speed limit of the road was.

Nancy Tardibuono said she believed it was 30 mph.

Martha Tardibuono stated Wayne Kelder, former Highway Superintendent had provided her with a large amount of gravel to put around the corner so it would slow cars down, but when it rains people hit the curve too fast and skid off onto their property.

Nancy Tardibuono explained they needed the fence for safety, security, and privacy as the headlights from the cars on the road often shone into their house.

Chair Mallery asked why would a 4 ft fence not work for those concerns, specifically the privacy factor.

Martha Tardibuono said people would still be able to look into their home from the road with a fence at that height.

Nancy Tardibuono stated a 6ft fence would garner more privacy for themselves and would not be imposing on anyone else’s view while driving down the road.

Mr. Fornal asked why they couldn’t have the fence closer to their home.

Nancy Tardibuono said having the fence closer to the house would not block the car lights from getting into the home and it would still not provide the security they wanted, the wanted to enclose the property not the house.

Martha Tardibuono noted it was hard to understand for anyone that did not live on the road.

Nancy Tardibuono added they would rather have greenery in their front yard, not a fence.

Chair Mallery read for the record, #144-66 (C)- Area Variances:
(1) The Zoning Board of Appeals shall have the power, upon an appeal from a decision or determination of the administrative officials charged with the enforcement of this chapter, to grant area variances as defined herein.
(2) In making its determination, the Zoning Board of Appeals shall take into consideration the benefit to the applicant if the variance is granted, as weighed against the detriment to the health, safety and welfare of the neighborhood or community by such grant. In making such determination the Board of Appeals shall also consider:
(a) Whether an undesirable change will be produced in the character of the neighborhood or a detriment to nearby properties will be created by the granting of the area variance;
(b) Whether the benefit sought by the applicant can be achieved by some method, feasible for the applicant to pursue, other than an area variance;
(c) Whether the requested area variance is substantial;
(d) Whether the proposed variance will have an adverse effect or impact on the physical or environmental conditions in the neighborhood or district; and
(e) Whether the alleged difficulty was self-created, which consideration shall be relevant to the decision of the Zoning Board of Appeals, but shall not necessarily preclude the granting of the area variance.
He stated that #2b seemed applicable to the applicants’ situation, such as putting up a 4 ft.fence, and #2c as well because asking for a 2 ft increase of what was in the code was substantial, not unusual, but substantial. He said the real question in his mind was if they really needed a 6 ft fence when a 4 ft fence could accomplish what they needed.

Martha Tardibuono stated that they would have done a 4 ft fence but it was just not feasible and that was why they had tried to plant the trees and put gravel down but there was just too much water and all the trees died.

Ms. Enouen asked if where the fence would be, what was the distance, as she was concerned the fence would obstruct views for oncoming traffic.

Nancy Tardibuono stated it would not, and they had been told by the Code Enforcement Officer and the Highway Department the fence needed to come in 12 feet.

Attorney Christiana suggested a letter to the highway or the constabulary for their comments could address the concerns of the traffic for the record. She asked if the fence was going to go with the contour of the property.

Nancy Tardibuono said it would and it would be no higher than 6 ft.

Chair Mallery clarified from the top of the fence to the ground will be no more than 6 ft.

Nancy Tardibuono stated that was correct.

Mr. Fornal asked where the fence was going to start and the distance of where they wanted to run the fence.

Nancy Tardibuono said it would be 120 ft.

Attorney Christiana said the Board would need that in writing and if they were using a particular company, perhaps they could provide a diagram of the fence for the Board to look at. She told the Board they should reach out to the Highway Department with their concern about the fence obstruction of any views for motorist.

Mr. Fornal made the motion to have the Chair write a letter to the Town of Rochester Highway Department requesting they visit the property to see about sight distance, how far off the edge of the road the fence would have to be and traffic safety and comment if there were any issues with those items. Mr. Fischer seconded the motion.
All in Favor. Motion Carried.
5 ayes, 0 nays, 0 absent, 0 abstentions.

Mr. Fornal asked if they had any additional items to submit, as in a diagram of the fence, etc, to have it in by October 3rd so the Board members had a chance to look everything over.

Mr. Fornal made the motion to set the application for public hearing at the October 17th, 2019 regular meeting. Ms. Enouen seconded the motion.
All in Favor. Motion Carried.
5 ayes, 0 nays, 0 absent, 0 abstentions.

2019-07AV- Tansosch, Stephen
Area Variance
173 Airport Rd./ SBL: 69.3-1-15/ AR-3 District
Proposed use: 2 lot subdivision. 3 acre with an existing house and small sheds, old large barn to be removed and new barn put on remaining 14 acres.
-Area Variance required: For “new barn” as side yard setbacks are 40’ in an AR3 district.

Mr. Stephen Tansosch was present on behalf of the application.

Mr. Tansosch explained to the Board that he wanted to subdivide this property in order to get a reverse mortagage and was essentially wanted the lot lines to be smooth and in order to achieve that he needed an area variance.

The Board discussed a number of other options that Mr. Tansosch could do without having to seek a variance.

Mr. Tansosch stated he didn’t think making the property line straight would hurt anyone but that he understood what the Board had stated and he would redraw the property lines and not have to seek a variance and in doing so withdrew his application.

Appeal of Zoning Determination
30 Loosestrife Lane, Wayward Ranch
-Code Enforcement Officer’s interpretation/determination of Animal Sanctuary as stated in a letter to the Planning Board Chairperson dated June 3rd, 2019.

Ms. Enouen recused herself at 7:41pm. Mr. Bill Barringer, alternate, was seated on the Board in her place.

Mr. Allan Rappleyea and Mr. Anthony Ullman were present on behalf of the application.

Chair Mallery explained at the previous month’s meeting the Board had given both Mr. Rappleyea and Mr. Ullman a chance to review the letter submitted by the attorney for Wayward Ranch dated July 18th, 2019 and that Mr. Rappleyea had wanted a chance to respond to that letter and he had done so in writing and Chair Mallery asked if there was anything further he wished to add.

Mr. Rappleyea stated he did have thing he wanted to add as there had been a letter he had received that day from Wayward Ranch’s attorney, Ms. Polidoro, and he asked that the Board hear them out on a couple of points. He stated he primarily wanted to address the arguments brought up in Ms. Polidoro’s July 18th letter where she had stated the application was untimely and he wanted the Board to critically think about that because he felt all the points Ms. Polidoro had brought up in that regard were untrue because the letter from the Planning Board Chair dated May 24th, 2019 stated that they were requesting the CEO’s “opinion and/or clarification on the definitions of a number of things” and she had identified 4 items. Mr. Rappleyea stated if those 4 items had already been addressed by the CEO, then the Planning Board Chair would not have written the letter that she wrote and by the same token the CEO would not have written the letter that he wrote, he stated the CEO responded on June 3rd, 2019 and addressed the 4 points the Planning Board Chair had asked about and if they looked at the first 2 points he deferred to the Town’s attorney. He said if the CEO had already written that stuff then why did he write the letter that he did, he said the CEO did not say the items had been addressed in February 2019 when the initial determination was made, it was not referred to. He stated the exchange of the two letters undermined all the arguements made by the property owner. He said they could all be in agreement that everyone would have preferred that CEO had provided a direct and less vague determination, and it was a determination. He stated the ZBA did have jurisdiction to make a determination in the zoning law under #140-66:
“The Zoning Board of Appeals may reverse or affirm, wholly or partly, or may modify the order, requirement, decision, interpretation or determination as in its opinion ought to have been made in the matter by the administrative official(s) charged with the enforcement of this chapter and to that end shall have all powers of the administrative official(s) from whose order, requirement, decision, interpretation or determination the appeal is taken.”
He stated if the CEO did not answer the questions, and that was in essence Ms. Polidoro’s arguments, the lack of answering in and of itself was a determination. He asked the Board to think about what would happen if they dismissed the appeal, the Planning Board had already asked the questions and they needed to be addressed and had not been addressed. He stated Ms. Polidoro’s argument of there was nothing new to address was correct, the was nothing new to address because they had not been addressed in the first place. He said her argument that the application was not timely was incorrect as it was very timely from the date of June 3rd, even though Ms. Polidoro said it all dated back to February when there had been the initial determination and Mr. Rappleyea said if that was true, why did the two letters exist? He said what they were asking the Board with the appeal was 1) It would be a mistake to dismiss the appeal because they thought the issue had been decided earlier, they weren’t and if they could read those two letters and determine those items had already been addressed, then they could see things he could not see. He said adoption was not permitted and they wanted the ZBA to make that determination. 2) They were asking the Board to tell the Planning Board what a structural educational visitor program meant and the same with what was meant by similar domesticated animals and 3) In relation to kennels and why were these questions not addressed and they needed to be answered by the ZBA not the Planning Board or the Town’s attorney.

Mr. Ullman added on Ms. Polidoro’s timely-ness issue it seemed to be that with the original determination from February, that if the CEO did not say certain things weren’t allowed, then it meant it was permitted because the issue of adoption wasn’t raised in the initial application but that wasn’t the case and he gave the example that everyone could agree that testing on animals was not permitted at an animal sanctuary and that could not be construed as an impliecent authorization for them to do animal testing so the argument at the end did not make sense.

Chair Mallery said that Mr. Ullman had said adoption was not allowed in regards to an animal sanctuary, but he did not see that anywhere in the code.

Mr. Ullman said if one looked at what was allowed for an animal sanctuary, it not encompass that didn’t allow adoption what it said was it was a facility as a place of refuge and care for an animal’s lifetime or rehabilitate them and release them into their natural habitat, which would only be in the case of wildlife as there was no such thing as a natural habitat for a domesticated animal.

Chair Mallery and Mr. Barringer both questioned that there were not natural habitats for domesticated animals?

Chair Mallery said in #140-40 talked about 3 types of animals there were domesticated, farm animals, and wild animals, so if the sanctuary got an abandoned, neglected, abused dog or cat and they nursed it back to health, do they release it to the wild?

Mr. Ullman answered they had to keep it for its lifetime.

Chair Mallery asked why?

Mr. Ullman said because that was the only thing to do.

Chair Mallery asked wouldn’t the natural habitat in that situation be a home?

Mr. Rappleyea said that was what they were asking the Board to do, to make that determination.

Chair Mallery said they had made a statement that adoptions were not permitted and he was looking at everything and it seemed the natural habitat of a domesticated animal was a home and placing the animal in a new home would fit in with the stature.

Attorney Christiana noted that if they were going to have these types of arguments it would be if the Board decided to hear the appeal and these would be the items at public hearing that would be addressed.

Mr. Rappleyea stated he did want to answer that it was prohibited by exclusion and it was very clearly described what can happen in an animal sanctuary, and it does not describe adoption, and it was a comprehensive definition.

Mr. Ullman said natural meant nature bound in code.

Mr. Rappleyea said if the ZBA did dismiss the application then what would the Planning Board do? Do they say to Wayward Ranch there can be adoptions? What would the authority be for that? The Planning Board would then be interpreting the code and he did not think that was the Planning Board job he thought the Planning Board knew that.

Mr. Fornal stated then the Planning Board should send a letter to the ZBA.

Attorney Christiana said they may still do that and she just wanted to point out something that was not clear in the manner the letters were written, the Planning Board did not make the request to have the letter sent to the CEO, the Chairperson did that on her own accord, and Attorney Christiana knew it said “we” and “the Planning Board” but that was the Chairperson on her own, and she did not know if it was going to matter in the long run, but she wanted the record to be clear, because no matter what she would guess the ZBA was going to get an appeal.

Chair Mallery asked if there was anything else they wished to add.

Mr. Rappleyea said he wanted to respond to a Board member’s questions and that he wanted to understand it. He said he wanted to know the difference between the Planning Board writing to the CEO and then an appeal being taken versuses the Planning Board writing to the ZBA?

Mr. Fornal said the ZBA had the authority and the CEO did not and Mr. Rappleyea said that himself.

Mr. Rappleyea asked then because the Planning Board did not write them directly and it was a resident took up the appeal, that was a reason the ZBA would not take the appeal?

Mr. Fornal said it was a consideration.

Mr. Rappleyea said he did not disagree with that but it was also a consideration to consider a land owner’s appeal of the identical issue.

Chair Mallery asked if Wayward Ranch had a response.

Ms. Eleni Calomiris and Mr. Patrick Logan, Attorney for Ms. Calomiris were present to respond. Mr. Logan said they had sent a letter in that day and he felt it was a direct response to the issues raised by Mr. Ullman and his attorney and he wanted to briefly respond to what they had heard that evening. He said the ZBA could only hear an appeal from a determination and that Mr. Ullman and his attorney were conceding that this was barely a determination, if anything, and frankly Mr. Logan did not feel it was a determination. He said he wanted to direct the Board to the CEO’s response in which he said “I received your specific questions, we offer the following comments.” Mr. Logan noted he did not say answers he said comments and if they looked at point #3 specifically, the CEO said “We would ask for specific animal species being considered in this application, and then this office will offer a determination.” Mr. Logan empahsized the point of “and thing this office will offer a determination.” He said that he felt that the CEO in the letter said that a determination may be forthcoming demonstrated that there was no determination. He stated that secondly, regarding timely-ness, if the ZBA decided what was said in the CEO’s letter to the Planning Board Chair was a determination, then he believed that there was case law which established if a CEO issued repeated determinations, so long as they do not deviate from the earlier ones, there was no new time for an appeal. He said the letter may not have specifically sited to his earlier determination of use, but it certainly did not deviate from it, and accordingly there was nothing to appeal from. Mr. Logan’s stated if the Board did decide to consider the issues raised by the appellant, that he wanted them to consider the specific questions asked of the CEO, for example, there had been a lot of talk about the substance of the issues that evening but he felt they were actually going beyond what was asked by the CEO and if they looked at question #3, the Planning Board Chair had brought up a number of issues regarding the kennel use and had asked “who defines similar domesticated animals?” Mr. Logan said she did not ask what those animals were nor did she ask the CEO to give guidance on what they could be, she had only asked who offered the definition. He said there were a number of other points brought up that evening about what would happen if the ZBA did not hear the appeal and he said the CEO had stated he may issue a determination in the future, but even if he did not, it did not change the fact that this was a threshold jurisdiction issue, and the ZBA did not have the authority to hear an appeal where there had not been a determination or new determination made.

Chair Mallery stated what the appellant was asking of the ZBA was that they wanted the Board to legislate and the Board was an appellant body, and if they had specific facts or uses that were intended for the property, then they may have been able to rule yes or no. He said he felt as though what they were asking for was an advisory opinion and that was not what the ZBA did.

Mr. Fornal made a motion:

RE: Appeal of Code Enforcement Officer’s response (SEE: CEO’s Letter dated 3 June 2019 in response to Planning Board Chair’s letter dated 24 May 2019) as pertains to the Wayward Ranch Animal Sanctuary made by Anthony Ullman as represented by Allan B. Rappleyea, Esq. (also representing 12 other residents as listed in letter attached to Variance Application #2019-05 CA dated 5 July 2019)

Whereas the appellants, by appeal to the Zoning Board of Appeals (ZBA) submitted 5 July 2019 (#2019-05 CA), are asking the Town of Rochester ZBA to make a decision as regards the content of the Town of Rochester Code Enforcement Officer’s 3 June 2019 letter; and

Whereas in the CEO’s letter to the Planning Board Chair (3 June 2019), he did not change his determination previously made in sending this matter to the Planning Board for review, and did not provide any interpretation of the zoning code; and

Whereas the attorney for Wayward Ranch Animal Sanctuary presented at the 18 July 2019 ZBA meeting and submitted a letter dated 18 July 2019, and the attorney for Ullman et. al. presented at the 15 August 2019 ZBA meeting, and

Whereas at the 15 August 2019 ZBA meeting the attorney for Ullman et.al., Allan B. Rappleyea, requested time to review an 18 July 2019 letter from Wayward Ranch Animal Sanctuary attorney, Victoria L. Polidoro, on which he had not been copied; and

Whereas the appellants agreed to extend the 62 day period for scheduling public hearing until 17 October 2019; and

Whereas the ZBA tabled further discussion until the 19 September 2019 meeting, and

Whereas the appellants’ attorney submitted a letter dated 9 September 2019; and

Whereas the attorney for Wayward Ranch Animal Sanctuary then responded with a letter dated 19 September 2019; and

Whereas the ZBA heard from both attorneys again on 19 September 2019 and reviewed all submitted material.

Therefore on this 19th day of September 2019, the Town of Rochester Zoning Board of Appeals finds that the 3 June 2019 letter from the CEO to the Planning Board did not render an appealable order, requirement or decision in that his letter to the Planning Board did not apply the zoning law or make a decision or interpretation of the zoning law, and therefore there is nothing contained in this appeal, that the ZBA has authority to review, and therefore the ZBA cannot consider the appeal.
Seconded by: Mr. Fischer

The Board discussed the motion and several items that needed to be amended.

Mr. Fornal made the motion to deny hearing the appeal. Mr. Fischer seconded the motion.
All in Favor. Motion Carried.
5 ayes, 0 nays, 0 abstentions, 1 recused.


Mr. Barringer made the motion to accept the meeting minutes from the August 15th, 2019 meeting with amendments. Mr. Psaras seconded the motion. Chair Mallery abstained.
Motion Carried.
4 ayes, 0 nays, 1 abstentions, 1 recused.

Chair Mallery made the motion to adjourn the meeting at 8:13pm. Mr. Fornal seconded the motion.
5 ayes, 0 nays, 1 absent, 0 abstentions.

Respectfully Submitted,

Brianna Tetro, Secretary