Minutes of October 10, 2006 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:
Marijane Knudsen, Chairperson Elizabeth Kawalchuk
Robert Godwin, Alternate Beatrice Haugen-De Puy, Vice Chair Stanley Hudson James Kingston
Pledge to the Flag.
ACTION ON MINUTES
Mr. Hudson motioned to approve the minutes of the September 12, 2006 meeting seconded by Mr. Godwin.
Vote: Godwin, Alt. – Yes Kawalchuk – Absent
Hudson – Yes Knudsen – Yes
Haugen De Puy – Absent Kingston – Absent
The Chairperson started out by advising the public that Mountain View Stables wasn’t on the Agenda this evening and if anyone was here for that, they were welcome to stay for the meeting, but it wouldn’t be discussed.
PUBLIC HEARING
CHARLES & SANDRA RANDALL- +/-28’ Area Variance for insufficient lot width, Berme Road, Tax Map #76.4-2-28.230, R-1 & ‘F’ District
Mr. Randall was present on behalf of his application.
Chairperson Knudsen recapped what had happened at last months Pre-application presentation regarding this project. She explained that Mr. Randall needed an Area Variance because he had insufficient lot width. The Town Code requires 160’ of width at some point in the property. Gerald Brandt surveyed this parcel and split it into 2 pieces, but 1 parcel had +/-173’ of width and the other parcel only had +/-132’ in width.
Mr. Randall had also met with the Planning Board at their September 19, 2006 meeting for an advisory opinion. At the Public Hearing, the applicant needs to present his case to the Board to prove their hardship. This is also the time for the public to give their input when asked.
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ZBA MINUTES October 10, 2006
PRE-APPLICATION PRESENTATION
CHARLES & SANDRA RANDALL(cont’d)- +/-28’ Area Variance for insufficient lot width
Mr. Randall understood and explained that he purchased the property of 1971 Berme Road in 2003. M & T bank wanted evidence from the Town that the separation that he had done by a surveyor was okay with the
Town. He had the work done and went to the County and filed the maps and then went to the Town to get the okay. It was at that point and time that he found out at the Building Dept. that everything was okay until they saw that there was an inadequate lot width on one of the parcels. It was supposed to be 160’ and it was +/-132. The total frontage is between +/-304 and +/-305. He didn’t know that there were lot width requirements until after the property had been separated and filed with the County. At that time he was told that he could file for a Variance and he proceeded and attended the 2 meetings that he was directed to attend. He went to the Planning Board and they gave him a favorable advisory to get the variance and that was why he was here tonight; to continue the process. Again, he had no idea until he came to the Building Dept. that what he had done wasn’t according to the Zoning Ordinance.
Mr. Hudson questioned if there were 2 houses on the 2 pieces of property (a house on each)?
Mr. Randall answered, yes.
Chairperson Knudsen questioned if Mr. Randall had contacted his surveyor Gerald Brandt to explain the situation to him and get an explanation of why he did what he did?
Mr. Randall answered, yes, that he had. He didn’t get a letter from him, but did get a new map that changed the lay of the line so that it wasn’t as much of a variance being requested. Now he was proposing the new width for the parcel with the insufficient width to be +/-144’ as opposed to +/-132’. So, he is showing the Board that he can minimize the size of the variance to now be +/-16’ rather than +/-28’.
The Chairperson wanted to know if Mr. Brandt acknowledged if he was aware of the rules and regulations of the Town. Did he check prior to doing the split?
Mr. Randall noted that Mr. Brandt indicated to him that he did not know that this was a requirement. Mr. Randall told Mr. Brandt that the ZBA felt that he should have been aware of those requirements prior to splitting the property. The lot widths prior to this new map were +/-173.67 and +/-131.2’ and now they were +/-160’ and +/-144.87’.
The Chairperson noticed that the house on the +/-160’ lot was pretty close to the boundary line now. Did Mr. Randall know if it still met the 40’ setback?
Mr. Randall believed that they still met those requirements.
It looked very close. Mr. Godwin measured the distance and noted that it was close enough that the dimensions should have been placed on the map to verify those setbacks.
Chairperson Knudsen questioned if Mr. Randall had approached his neighbors to see if they would sell him some property so that he could meet the lot width requirements.
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ZBA MINUTES October 10, 2006
PRE-APPLICATION PRESENTATION
CHARLES & SANDRA RANDALL(cont’d)- +/-28’ Area Variance for insufficient lot width
Mr. Randall did not approach the neighbors because it did not come up at the Planning Board meeting on September 19, 2006.
The Chairperson explained that the ZBA was the Board that had the authority to alter the law, and they had originally requested for Mr. Randall to approach his neighbors. The Planning Board gives their opinion and it is taken by the ZBA, but the ZBA is the deciding factor and needs as much information on which to base their decision.
Mr. Hudson questioned if that was a stone wall to the right of the +/-144’ parcel?
Mr. Randall noted that it was.
Chairperson Knudsen questioned if there was a Certificate of Occupancy (C/O) for the house?
Mr. Randall noted that Jerry Davis, CEO needed to come back and inspect the house. He doesn’t have final Health Dept. approval yet.
Chairperson Knudsen opened the hearing to the public.
Michael Callan of 1970 Berme Road was recognized to speak. He felt that the value of his property was going to be lowered because of this situation. The property is not big enough for 2 houses. Mr. Callan moved here in 2001. He bought his property in 1999 and placed his driveway and his house so that he could minimize his view of the existing homes in the area. He trusted the facts that the adjacent lot widths couldn’t accommodate additional homes that he would just integrate his house site and driveway into the existing configuration. Granted that everyone wants a little seclusion and that is what he wanted. He couldn’t have guessed that someone would place a house where it would not belong. He asks the question: did Mr. Randall create his own problem? He moved to this area to raise his family and resents that what appears to be a speculator building a house obviously against the rules and then asking this Board to ratify his actions by granting a variance. He encouraged the Board to vote ‘no’.
The Chairperson explained that one of the criteria of an Area Variance is to look and see whether or not this was a self created situation. It’s not the only criteria that are looked at by the Board. But that is one. Could the Applicant have done it another way? Can he do it another way? Did he act in good faith by having a licensed surveyor, taking all the building permits, following the Code and then finding out later? There are different things to look at, but whether or not it was self created is definitely one of them.
Mr. Callan questioned at what point and time did a person become responsible to realize that his lot wasn’t big enough to sustain another house? After it’s built? That seems foolish and outrages.
The Chairperson understood what Mr. Callan was saying and it was part of the record. She can’t give an answer. All she could do was say that in this case it appears that Mr. Randall hired professionals. And with regards to his house, there were permits.
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ZBA MINUTES October 10, 2006
PRE-APPLICATION PRESENTATION
CHARLES & SANDRA RANDALL(cont’d)- +/-28’ Area Variance for insufficient lot width
Mr. Callan noted that the professional was hired after the house was built.
The Chairperson thought that this survey was done prior to the house being built.
Mr. Callan questioned if that were the case, how was it possible for Mr. Randall to build a house on a lot that wasn’t big enough?
The Chairperson didn’t know.
Next to speak was bounding owner, Greg Cuickshank of 1959 Berme Road. He and his wife have resided at the property for 12 years. Every thing that he wants to do on his property, he goes and gets a building permit. They look and see where it’s going to be placed on his property and they look and see if it’s acceptable before he gets a permit. One of these houses is existing. The house that has been under construction for 3 years is the one they are having the problem with. He doesn’t understand how a building permit was issued in the first place if the requirements weren’t met? He had a letter from another neighbor who couldn’t make it because of health reasons who lives on the other side of Mr. Randall. Her name is Delilah Jakob-Praete. He submitted it to the Board for the record. He also had a statement that he would like to make. Originally he was led to believe that the family who owned the property was building a new house for them to live in. He asked them the questions of what was going on and this is what he was told. He had no objection to this concept of someone building a house for their family to live in and then no longer using the other house as a dwelling. This is what he was told from the contractors. Just today he finds out that someone wanted to split the property, but does not have enough frontage. If originally the idea was to put 2 homes on this parcel, he was sure the Building Dept. would have not issued a building permit, knowing that the proper requirements could not have been met. A request for a variance would have been done 3 or 4 years ago, well before construction started. He fears that we’ve all been misled. He doubts that anyone in this room would have liked to have an extra house built on their adjoining neighbor’s property on a lot too small to accommodate it. He pays Town taxes in part so that things like this don’t happen. The solution to this problem should not be rewarding a mistake made 3 or more years ago. The adjoining properties for this parcel are the Callans situated on +/-35 acres, Carole Banks who lives on +/-7 acres, the Praete’s live on +/-5 acres and Mr. Cruickshank who lives on +/-5 acres . Allowing 2 homes to be occupied on lots too small in this neighborhood on lots too small by Town Standards is unacceptable. He respectfully requested that the ZBA deny this requested variance.
The Secretary wanted to clarify a point made earlier. It was stated that this property was split prior to the building permit being issued for the 2nd house. The house started to be built in 2003 and this property split was done in March of 2006. The Building Dept. was not aware of the split until Mr. Randall came to their office in September to get the letter for his bank saying that this complied with Town Regs.
The Chairperson questioned Mr. Randall on this.
Mr. Randall noted that the whole property was surveyed in 2003 by Mr. Brandt and then they got the building permit in 2003 for the 2nd house. He would need to check his paperwork, but he was pretty sure his permit for that house was still active.
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ZBA MINUTES October 10, 2006
PRE-APPLICATION PRESENTATION
CHARLES & SANDRA RANDALL(cont’d)- +/-28’ Area Variance for insufficient lot width
The Chairperson questioned who the contractor was?
Mr. Randall answered, Broadhead Construction.
The Chairperson read letter dated 10/10/06 from Delilah Jacob-Praete. Mrs. Praete also did not agree to the idea of having 2 families living on 2 separate pieces of property created from this land. She was also confused by the names of the owners of this property. These are not the names of the people who are living on this property at this time. She was not comfortable with this fact and felt that there is some kind of misrepresentation regarding this piece of land that the original plan for use.
The Chairperson asked Mr. Randall for clarification as to who was living on the property?
Mr. Randall noted that his contractors were renting the original structure. Mr. Randall resides in Milan, NY. The contractor has been renting the house since 2003. The new house was being built with the intent for Mr. Randall and his family to move into it and sell their current residence.
The Chairperson further clarified that when Mr. Randall went to get the building permit that this lot was 1 parcel?
Mr. Randall verified this. It was based on 1 parcel.
Chairperson Knudsen questioned what Mr. Randall explained to the Building Dept. were his intentions? This property is +/-3.7 acres, so there could have been 3 residences on this parcel.
Mr. Randall noted that the intention at that time was for him and his family to move into the house onto the property once it was finished. The intention now is to separate it to sell a portion of it because of the length of time it has taken to build and other issues associated with it.
The Chairperson suggested to the Board that they should request the original building permit to see what setbacks were presented at that time and also for Mr. Randall to get a written communication of explanation from Mr. Brandt to explain how he arrived at doing this. The Chairperson questioned if the Secretary was aware with how the Building Dept. handled multiple dwellings on 1 parcel?
The Secretary wasn’t sure what happened in this particular case, but was aware that this type of request happened often. They always tell applicants to place the houses in such a way that they would meet any required setbacks should they ever decide to separate the parcel and houses.
The Chairperson noted that this wouldn’t have conformed either way.
The Secretary also believed it depended on what Mr. Randall originally applied for and what the Building Dept. based their decision on.
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ZBA MINUTES October 10, 2006
PRE-APPLICATION PRESENTATION
CHARLES & SANDRA RANDALL(cont’d)- +/-28’ Area Variance for insufficient lot width
The Chairperson instructed the Secretary to pull Mr. Randall’s building file to see how this developed. Did Mr. Randall get an extension for this? She was not aware of a 3 year building permit. She believed that at the time the Building Dept. told Mr. Randall to conform in case they split this lot. We are actually 1 house per acre, so Mr. Randall is allowed the 2 houses, but he should have conformed to the zoning requirements. She told Mr. Randall that it was important to get some sort of letter from his surveyor and even his contractor. These people usually know that code. Especially a contractor. They should know the client’s plan and conform to the Code, because they don’t want the grief of having to come before a Board. She also reminded him to have his surveyor show the setbacks of the house to the property. They also suggested that he speak to his neighbors to see if anyone would allow him to purchase land so he could conform.
Mr. Cruikshank noted that he and Mrs. Praete had both spoken to Mr. Broadhead and he led them both to believe that he was the owner of the building and was building a house for himself to move into and then would no longer use the original structure as a dwelling. They assumed it would be used as a garage.
Mr. Callan added that he expected his Town Government to be on top of this. He wanted to give everyone the benefit of the doubt. Internally in his own family, when he saw this happening he had some issues, but believed that the owner was new to the area and trying to make a go of it.
Mr. Cruickshank added that Mr. Callan was helping him at his property to take a tree out and they both had noted that it didn’t look like there was enough room for Mr. Randall’s house. Now, they are only lay people. Somewhere in the Building Dept., somebody was duped to believe there was enough road frontage. Again, he had Mr. Greene (a previous Building Inspector) and Mr. Dymond (previous Code Enforcement Officer) stop a cement truck on Berme Road as it was trying to back into his driveway. They placed their Town truck between his driveway and the cement truck so that the truck didn’t enter the driveway because they said that he didn’t have a building permit. He didn’t need a permit to put a sidewalk in . He explained that to them and they said, “okay”. And they were about to leave and Mr. Cruikshank said, “oh no, don’t leave, I could use some help with the wheel barrow.” And they still left.
Chairperson Knudsen clarified that the ZBA wasn’t here to discuss Town Government. They were here to take testimony, look at the record and then based upon the criteria for an Area Variance, make a decision. That is what they are trying to do here.
Mr. Randall wanted to clarify the things he would need for the next meeting. An explanation from the surveyor of why he did what he did along with clarification of the setbacks between the house and the property line.
The Chairperson also invited Mr. Randall to bring his contractor to the next meeting to answer some questions that Mr. Randall can’t. The ZBA wants to figure out how this all happened. She also noted that he needed to verify in writing, his neighbor’s answers on whether or not they would sell the property needed to conform to the Zoning Regs.
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ZBA MINUTES October 10, 2006
PRE-APPLICATION PRESENTATION
CHARLES & SANDRA RANDALL(cont’d)- +/-28’ Area Variance for insufficient lot width
Mr. Hudson motioned to continue the Public Hearing until the November meeting. Seconded by Mr. Godwin.
Vote: Godwin, Alt. – Yes Kawalchuk – Absent
Hudson – Yes Knudsen – Yes
Haugen De Puy – Absent Kingston – Absent
OTHER MATTERS
The Chairperson noted that Mr. Kingston’s term as ZBA member is up on December 31, 2006. She instructed the Secretary to contact Mr. Kingston and give him this information to see if he is interested in re-applying for the position.
Mr. Hudson motioned to adjourn the meeting. Seconded by Mr. Godwin. All members present in favor.
As there was no further business to discuss, Chairperson Knudsen adjourned the meeting at 8:30 PM.
Respectfully submitted,
Rebecca Paddock Stange, Secretary