Minutes of August 9, 2005 of the Town of Rochester Zoning Board of Appeals, held at the Town Hall, Accord, NY.
Meeting was called to order at 7:30 PM by Chairperson, Marijane Knudsen.
Present: Absent:
Beatrice Haugen-De Puy
Elizabeth Kawalchuk Stanley Hudson
Marijane Knudsen, Chairperson
James Kingston
Robert Godwin, Alternate-sat in audience as there was a full board
Also present was the Liaison to the ZBA, Councilman Gray.
Pledge to the Flag.
ACTION ON MINUTES
Mr. Hudson motioned to approve the minutes of the July 12, 2005 meeting seconded by Mrs. Kawalchuk. No discussion.
Vote: Godwin, Alt. – (present in audience) Kawalchuk – Yes
Hudson – Yes Knudsen – Yes
Haugen De Puy- Yes Kingston – Yes
PUBLIC HEARING
BRENDA BUSH AND RONALD DARNLEY– Use Variance for Beauty Salon in R-1 District, Route 209,Tax Map # 69.3-3-28.113
At 7:35 PM, Chairperson Knudsen explained that Ms. Bush and Mr. Darnley were present for their Public Hearing in regards to their application for a Use Variance to construct and operate a Beauty Salon in an R-1 District where such a business is not permitted per the Town’s Zoning Regs. This application had received a favorable advisory from the Planning Board and two letters have been submitted for the Public Hearing by bounding land owners. The Chairperson explained the Public Hearing process to the applicants and the public.
Ms. Bush was present with Mr. Darnley and stated that this property was located on Route 209 next to Florence Rivenberg’s property. It is just south of the existing beauty salon that she rents and operates on Route 209 known as “Country Clippers”. It is a vacant lot.
T/ ROCHESTER -2- August 9, 2005
ZBA MINUTES
PUBLIC HEARING
BRENDA BUSH AND RONALD DARNLEY (cont’d) – Use Variance for Beauty Salon in R-1 District
Mr. Darnley added they would be constructing a new building to house the business. It would be 36’ x 40’ with adequate parking and nicely landscaped. Ms. Bush has outgrown her current location because it is so small and the parking is extremely inadequate.
Ms. Bush added that it tends to be a financial hardship too as she rents the building she is currently occupying for her business. She doesn’t seem to be getting anywhere because of that.
Chairperson Knudsen stated that when the applicants came for their Pre-Application Presentation it was explained to them that the reason for the variance was because the property was in an R-1 zone, which is residential, and the use being applied for is not permitted in that district. So, based on the fact that the applicants could not realize a reasonable return as operating the property in question as anything but commercial, they needed to prove their hardship to the ZBA. They also needed to demonstrate the reason why the hardship was unique. She believed that at the last meeting the applicants stated that this was along one of the only strips along Route 209 in the Town that wasn’t zoned Business and the applicant thought that was spot zoning. The other thing the applicant needed to do was to show the ZBA that this application wouldn’t alter the essential character of the neighborhood and that it wasn’t self created. These were the things the Board advised the applicants of at the last meeting. The Chairperson was in receipt of the Short Environmental Assessment Form (EAF) that was submitted by the applicants along with the Use Variance Application and a letter stating the hardships faced by the applicant.
In the applicant’s letter she stated that this was the only strip of land from Lucas Avenue to Gene’s Tire on Route 209 that was not zoned Business. This would not alter the essential character of the neighborhood as in close proximity to the property in question there was a restaurant, a tire service, a fuel company, a pet food store, an automotive repair garage, and the shop that Ms. Bush currently rents are all within about 1 mile of this parcel.
Ms. Bush also stated that they could place things on the property in question that were much worse than a beauty salon and that would have a mush worse impact without getting a variance. They could put a slaughterhouse on the property. She read the Schedule of Zoning Uses to see what could be permitted on the property and besides being able to put a slaughter house on the property she could put a sawmill on the land, but not a beauty salon. The applicants have not pursued Board of Health Approval or any other approvals that they would need, because they wanted to see if they would get the variance first.
The Chairperson questioned if the applicants felt that the hardship was that there were various businesses in this area and it seemed like spot zoning.
The applicants agreed, there hardship was unique because in that small strip of land, that was one of the only sections of Route 209 that wasn’t zoned business and in the same area there were all of the mentioned businesses.
Mr. Hudson stated that Gene’s Tire and the Pet Food store were all in a commercial zone.
T/ ROCHESTER -3- August 9, 2005
ZBA MINUTES
PUBLIC HEARING
BRENDA BUSH AND RONALD DARNLEY(cont’d)– Use Variance for Beauty Salon in R-1 District
The applicant agreed. She was aware that those businesses were in the commercial district, and that is why she felt she had a hardship, because she was on Route 209 in the only area that wasn’t zoned Business, and they weren’t even a mile away from all of these other businesses.
Mr. Hudson stated that the business district ran from Lucas Avenue up to Gene’s Tire.
Mr. Darnley questioned if the Board had checked to see if that property had ever applied for a commercial use. At the last meeting one of the Board members had mentioned that.
The Chairperson stated that she was the member who had mentioned Florence Rivenberg wanting to open a gift shop at one point.
Mrs. Kawalchuk noted that Mrs. Rivenberg had yard sales in that barn every Sunday.
Mrs. Bush felt that this was kind of a simple application.
The Chairperson contradicted the applicant and explained that this application was far from simple. A Variance, alters the law, so the Board has to look at the minimum qualifications and vary the law as minimally as possible if the applicant meets the criteria. This is because if they let everyone vary from the law, the Town wouldn’t have zoning. A Use Variance is more difficult than an Area Variance. It’s not impossible, but it is much more difficult to accomplish.
Before the Chairperson opened the hearing to the public, she read letter dated August 5, 2005 by Florence Gray Rivenberg into the record. The letter, which was from the former owner of the parcel and now neighboring parcel, was in great support of Brenda Bush and Ronald Darnley as they sacrifice for their community by staying in our Town where many people move or take their business to a place where they can make much more money. She also felt that the salon employed a few people, so this was good for local employment.
There was also a fax received dated August 9, 2005 from the executrix of Betty Gray’s Estate, Delores Lewis. She mentioned that her property bordered the south of the applicant’s property. She was concerned with water run off in result from any construction on the applicant’s property. She wanted it to be investigated if there were any wetlands on the property in question as if there were, the property should be protected from any construction. She wanted it read in the record that she opposed the application until she could be guaranteed protection on the said issues. She would have attended the meeting, but she lives in Vermont. A copy of this letter was sent by Ms. Lewis to the New York State Department of Environmental Conservation (NYS DEC).
The Chairperson also noted that there was correspondence dated July 20, 2005 from the Town of Rochester Planning Board, Melvyn I. Tapper, Chairman stating that the Board reviewed this application and rendered a favorable advisory with a vote of 7 ayes and 0 nays.
Mrs. Kawalchuk questioned if there were wetlands on this property.
T/ ROCHESTER -4- August 9, 2005
ZBA MINUTES
PUBLIC HEARING
BRENDA BUSH AND RONALD DARNLEY(cont’d)– Use Variance for Beauty Salon in R-1 District
Ms. Bush said that she checked with the Town’s Building Department prior to purchasing it and they said that there were no wetlands. She noted that the property was a little wet and they were aware that they would have to bring in fill before they built. She can’t imagine that their proposal would create an amount of run off that would affect the neighboring parcel.
Mr. Darnley questioned if the person concerned with wetlands and runoff was a resident of this Town?
Chairperson Knudsen replied that it doesn’t really matter, they owned the property, so they had a right. Anyone had a right to comment. You don’t just have to be a resident to voice concerns. Everything is taken into consideration. This person of the public is concerned about the protection of wetlands and water run off and that they are opposing this application until they can be guaranteed the above issues.
Mr. Darnley was sure that they would abide by any laws and anything that would need to be done in reference to run off or water. Everything would be done by the book.
The Chairperson stated that this is something that would be a part of the conditions of approval, if this application were approved. The Board conditions that all laws and rules and regulations be followed in regards to the parcel. There are a lot of times when the property is improved upon where it affects neighbors. There was one time that someone was complaining about the run off from a roof. These are some things that people may not think of, but they can become issues. She questioned if this property flooded in the flood of April 2005?
The applicants stated that it did not.
Ms. Bush submitted a letter from a neighboring property owner dated July 18, 2005, Geoffrey and Heather Hazzard of HB Hummiston Funeral Home. They felt that the applicants should have the right to do what ever they saw fit to do with their property.
Ms. Bush noted that the Hazzard’s owned property behind their parcel and they had a 50’ right-of-way to it. The right-of-way is not on their property, it runs along side of it.
Because the Board did not have any further questions at this time, the Chairperson opened the hearing to the public.
T/ ROCHESTER -5- August 9, 2005
ZBA MINUTES
PUBLIC HEARING
BRENDA BUSH AND RONALD DARNLEY(cont’d)– Use Variance for Beauty Salon in R-1 District
Chairperson Knudsen acknowledged Hilda Gray of 34 Mill Street, Kerhonkson to speak. Mrs. Gray noted that she owned land in proximity to the parcel in question. She was concerned with the diverting of the drainage of the proposed beauty salon. It was her understanding that this parcel is residentially zoned and not commercial. Are we now just going to pick and choose what is commercial and what is residential in the Town of Rochester? She owns land below Earl and Betty Gray’s property which also connects to the back of this parcel. When her father owned this property, there was a ditch running the full length of the property and this area was always wet. There is a culvert above Earl and Betty’s land that brings water into this area from Route 209 and also from the area across Route 209 and there is another culvert at the edge of the property across from Airport Road. This drains the whole area. She felt that any disturbance to any area at the upper end would greatly impact Earl and Betty Gray’s land and also her land.
The Chairperson questioned who owned the culvert.
Mrs. Hilda Gray indicated that New York State owned the culvert. The culvert goes under Route 209 and drains into the property in question.
Chairperson Knudsen questioned Mrs. Gray to explain her definition of wetlands on this property. Was she referring to NYS DEC delineated wetlands or was the parcel simply wet?
Mrs. Gray noted that the land was wet. She didn’t know if the land was designated as wetlands by the NYS DEC. She was born and raised in that home on Route 209, so she recalls the parcel being wet since she can remember. When questioned how the property faired after the flood in April 2005, she responded that the road was not closed due to water build up, but in past years the road has been shut down. It did not flood in the flood of April 2005.
Mrs. Kawalchuk felt if there was a NY State culvert involved, the State would come and fix any drainage problems. The proper authorities should be notified to remedy the problem.
Mrs. Gray reiterated that there was one culvert above the parcel in question (going toward Kingston) and one culvert past Airport Road, but on Route 209.
Francis Gray, 160 Cherrytown Road, Kerhonkson, was recognized next to speak. He knew the property because he was also born in the Gray house next to the parcel in question. He noted that the first culvert that is just below the Gray property line(Florence Rivenberg’s home), drains much of Route 209. It is a hilly area coming down through there. There is a lot of rain and run off from Route 209 that goes onto the property in question. When Mr. Gray’s father was alive and resided in the Gray’s home that is now occupied by Florence Rivenberg, he kept a ditch open all the way out to the main ditch that went the full length of the property that connected to the other culvert which was in the area of Airport Road.
Mrs. Haugen De-Puy questioned Mr. Gray that if he were looking at a topographical map, would he say that one side of Route 209 was higher than the other and therefore it drains in the direction of the property in question?
T/ ROCHESTER -6- August 9, 2005
ZBA MINUTES
PUBLIC HEARING
BRENDA BUSH AND RONALD DARNLEY(cont’d)– Use Variance for Beauty Salon in R-1 District
Mr. Gray responded that the water runs across Route 209 in that culvert toward Airport Road. During the April 2005 flood, that whole area was wet. It didn’t go over the road, but the parcel in question was totally loaded with water. He believed that it was really a swamp. He is not certain if it is designated as a NYS DEC Wetland, but for as long as he could remember that land was like a swamp, always wet.
Mrs. Kawalchuk believed that a lot of property gets wet from rain and drainage patterns.
Chairperson Knudsen questioned if FEMA had inspected the property during the flood of April 2005?
Mr. Gray noted that they had not as there was no damage other than the extra water.
The Chairperson noted that the drainage would be something to pursue with the Highway Superintendent of the State, because of the fact that if there is anything to do with water, the County, State, and Town received FEMA money from the April 2005 flood and this poor drainage situation could get corrected.
Mr. Gray responded that his father had tried for years to get the State to fix the problem, but they never did.
The Chairperson informed Mr. Gray that there were new people now, and they just had to stay on top of it.
Mr. Gray continued and felt that this situation of potentially granting a Use Variance for this parcel was really spot zoning. He felt that it is illegal to do. All of the businesses that were mentioned by the applicant, with the exception of the Friends and Family Restaurant, were already in commercial zones. The restaurant was there prior to zoning, so they weren’t designated, they were okay to remain in a residential area.
Mrs. Haugen De-Puy felt that she may have a misconception of spot zoning. She felt that if the one spot wasn’t designated commercial—that was spot zoning when everything else around it is zoned commercial.
Mr. Gray noted that this parcel was about a mile away from the nearest commercial zone. You couldn’t get to the parcel in question from the commercial zone without passing several residential parcels. The new tire store is the last commercial parcel on Route 209.
Mrs. Kawalchuk questioned if there were any other houses beyond the parcel in question coming toward Kerhonkson.
Mr. Hudson noted that there were several homes between the parcel in question and the beginning of the commercial zone going towards Kerhonkson. The Zoning Map shows a residential district, R-1, from Lucas Avenue all the way to Gene’s Tire.
Mrs. Haugen De-Puy questioned about the Airport property and the oil company.
Mr. Hudson noted that that parcel was commercial/ residential. He believed that the oil company came before this Board and had received a Use Variance to operate the business.
T/ ROCHESTER -7- August 9, 2005
ZBA MINUTES
PUBLIC HEARING
BRENDA BUSH AND RONALD DARNLEY(cont’d)– Use Variance for Beauty Salon in R-1 District
Michael Baden, 110 Woodland Ridge, Kerhonkson, was next to speak. He questioned what were the next steps should the Use Variance be granted?
The Chairperson noted that the applicants are asking the ZBA to vary residential to commercial for that use. The Planning Board would have to review the application and the applicants would have to follow all of the rules under the various involved agencies should the ZBA grant the variance. If the ZBA does not grant the variance, the applicants have the option of going to Supreme Court. There are always conditions on approvals and the applicants have to be in compliance with those conditions if they want building permits.
Mr. Baden questioned if the Planning Board’s Favorable Advisory was approval for the site plan? Or if the applicants would need to go back to the Planning Board for a more formal Site Plan Approval?
The Chairperson noted that they looked at the request for the Use Variance and they said that it was favorable. The Planners of this Town felt that this was a favorable request. It doesn’t mean that the ZBA has to listen to the Planning Board, this was just that Board’s opinion.
Mrs. Kawalchuk felt that because Hummiston’s Funeral Home owned adjoining land to this parcel that one day this was going to end up a Business District anyway.
Hilda Gray was recognized again to speak and contributed that the reason Hummiston’s owned adjoining land was because that too was once part of her parents land and they broke a piece off and traded the land for the prices of their funerals.
Mrs. Bush questioned if they didn’t get this Use Variance, they could just build a house and have a home occupancy? The same impacts would be created once the land was improved upon, one way or the other.
The Chairperson noted that the ZBA wasn’t saying that they agreed with every law in the Town, but this was what they had to work with. The applicants have a piece of property and the concerns they were stating were very valid, but the ZBA have to follow the standards in which to grant or deny a variance. This could be a home occupation if that was the path the applicants wanted to choose. They were up front, they came in and they told the ZBA what they really wanted to do. Now, it is the ZBA’s job, based on the information presented they have to weigh it and make a decision.
Mr. Darnley noted that they were applying simply to try and better the community to try and put a building up that represents the community. As far as water run off, again he stated that they would comply with what ever regulations were out there to follow. Mrs. Bush has totally outgrown the building she is currently in. The parking is just inadequate. He has a fear because of the parking situation that someone will pull out of there and have a car accident. People even back out onto Route 209. Where they want to put the salon in conjunction to where the salon is currently operated is down further. It’s on a straighter area and there is a better sight distance for ingress and egress. The parking that they would have at the new location would ensure people’s safety and they would never have to back out onto Route 209.
T/ ROCHESTER -8- August 9, 2005
ZBA MINUTES
PUBLIC HEARING
BRENDA BUSH AND RONALD DARNLEY(cont’d)– Use Variance for Beauty Salon in R-1 District
The Chairperson noted that parking would be something that would be addressed by the Planning Board under Site Plan Approval if the Variance was granted.
Mrs. Bush noted that they were just trying to make a living.
At 8:15 PM, Mrs. Haugen De-Puy motioned to close the Public Hearing as there were no more public comments. Seconded by Mrs. Kawalchuk. No discussion.
Vote: Godwin, Alt. – (present in audience) Kawalchuk – Yes
Hudson – Yes Knudsen – Yes
Haugen De Puy- Yes Kingston – Yes
Mrs. Haugen- De Puy motioned for the Zoning Board of Appeals of the Town of Rochester to be Lead Agency under SEQRA and that this Application be typed as an Unlisted Action with a Negative Declaration and that this Application would have no significant impact to the environment. Seconded by Mr. Kingston. No discussion.
Vote: Godwin, Alt. – (present in audience) Kawalchuk – Yes
Hudson – Yes Knudsen – Yes
Haugen De Puy- Yes Kingston – Yes
The Chairperson noted that the Board had 45 days to render a decision. She questioned if the Board was ready to discuss a decision.
Mr. Hudson wanted to check on some things first in regards to the drainage.
Chairperson Knudsen explained that the Public Hearing was closed now, so at this point if there was any additional information the Board would have to re-open the Public Hearing.
Mr. Hudson stated that he didn’t need to check on anything. He already had his answer.
Mrs. Kawalchuk motioned to grant the requested Use Variance for Brenda Bush and Ronald Darnley to construct and operate a Beauty Salon in an R-1 District with the conditions that they meet all the requirements and abide by all applicable laws. Mrs. Haugen De-Puy seconded the motion.
Discussion on Motion:
Mr. Kingston was very concerned with the impact of the fill and storm water run off.
Mr. Hudson was concerned with spot zoning.
T/ ROCHESTER -9- August 9, 2005
ZBA MINUTES
PUBLIC HEARING
BRENDA BUSH AND RONALD DARNLEY(cont’d)– Use Variance for Beauty Salon in R-1 District
The Chairperson noted that the applicants have testified that there have been other spots zoned commercial then not zoned commercial. They stated that they are in close proximity to other businesses being a restaurant, a tire service, a fuel company, a pet food store, an automotive repair garage, and the shop that Ms. Bush currently rents are all within about 1 mile of this parcel. They stated that there hardship is because there have been different zones established along Route 209 there were some places that were commercial and some places weren’t. With regard to whether or not the variance would alter the essence of the neighborhood, they again stated the different businesses in such a close proximity.
Mr. Kingston noted that because of what would seem to be a need for a large amount of fill, it is going to raise the area and would act as a buffer and the land seems to be a sponge for water from Route 209. If the parcel is filled and the water is not diverted properly there is going to be a problem.
Mrs. Kawalchuk noted that this is where the County Planning Board and the NYS DOT would come in. They would advise the applicants on what to do.
Mr. Hudson noted that the applicants would need NYS DOT approval, County Planning Board review, and the NYS DEC would have to regulate the storm water run off and management.
Mrs. Haugen- De Puy contributed that the Ulster County Health Dept. won’t give approval if the land doesn’t perc well.
Mr. Kingston continued that there needs to be some sort of a study done to make sure that the storm water run off is properly handled.
Chairperson Knudsen reiterated Mrs. Kawalchuk’s motion to clarify for the Board that the motion was to grant a Use Variance to the applicant to construct and operate a beauty salon in an R-1 District with the conditions of NYS DEC storm water approval, NYS DOT approval and County Planning Board approval regarding curb cuts, Ulster County Health Dept. and management of water run off.
Mrs. Haugen-De Puy noted that on the plus side if this were granted that the applicants would have a better sight line, it would be safer.
Mr. Kingston agreed, and noted that he was in favor of the project, he was just concerned with the drainage.
Mrs. Kawalchuk agreed that the drainage issues really needed to be addressed.
The Chairperson was surprised that with the flood that it didn’t have any problems if there were so many drainage issues.
T/ ROCHESTER -10- August 9, 2005
ZBA MINUTES
PUBLIC HEARING
BRENDA BUSH AND RONALD DARNLEY(cont’d)– Use Variance for Beauty Salon in R-1 District
Mrs. Kawalchuk noted that if the State comes in and does what they should do, she felt this issue could be resolved.
The Chairperson noted that the drainage issues would be the same if they built a house.
Because there was no further discussion from the Board, the members voted on the original motion made by Mrs. Kawalchuk and seconded by Mrs. Haugen De-Puy.
Vote: Godwin, Alt. – (present in audience) Kawalchuk – Yes
Hudson – Yes Knudsen – Yes
Haugen De Puy- Yes Kingston – Yes
the use variance was approved
Mr. Hudson stated that he wasn’t comfortable with his vote and would like to abstain from the motion.
He requested that the Board revote on the motion.
Mrs. Kawalchuk rescinded her motion being “to grant the requested Use Variance for Brenda Bush and Ronald Darnley to construct and operate a Beauty Salon in an R-1 District with the conditions that they meet all the requirements and abide by all applicable laws.”The rescinding of the motion was seconded by Mrs. Haugen-De Puy.
Vote: Godwin, Alt. – (present in audience) Kawalchuk – Yes
Hudson – Yes Knudsen – Yes
Haugen De Puy- Yes Kingston – Yes
Mrs. Kawalchuk motioned to grant the requested Use Variance for Brenda Bush and Ronald Darnley to construct and operate a Beauty Salon in an R-1 District with the conditions that they meet all the requirements and abide by all applicable laws. Mrs. Haugen De-Puy seconded the motion.
Vote: Godwin, Alt. – (present in audience) Kawalchuk – Yes
Hudson – Abstain Knudsen – Yes
Haugen De Puy- Yes Kingston – Yes
the use variance remained approved
T/ ROCHESTER -11- August 9, 2005
ZBA MINUTES
OTHER MATTERS
The Chairperson wanted to memo the Town Board stating that the Zoning Board of Appeals has met all of their training requirements for the year.
Mr. Hudson Attended 4 trainings
Mr. Kingston Attended 4 trainings
Chairperson Knudsen Attended 4 trainings
Mrs. Haugen-De Puy had 4 trainings
Mrs. Kawalchuk has 3 trainings
Mr. Godwin has 3 trainings
The Chairperson informed the Liaison to the ZBA, Francis Gray, that the ZBA has met all of their requirements for trainings for the year.
Mrs. Kawalchuk motioned to adjourn the meeting, seconded by Mr. Kingston. No discussion.
Vote: Godwin, Alt. – (present in audience) Kawalchuk – Yes
Hudson – Yes Knudsen – Yes
Haugen De Puy- Yes Kingston – Yes
As there was nothing further to discuss, at 8:25PM Chairperson Knudsen Adjourned the Meeting.
Respectfully submitted,
Rebecca Paddock Stange
Secretary