Minutes of November 14, 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 Vice Chairperson, Beatrice Haugen De Puy.
Present: Absent:
Beatrice Haugen-De Puy, Vice Chair Marijane Knudsen, Chairperson
James Kingston Elizabeth Kawalchuk
Robert Godwin, Alternate Stanley Hudson
Pledge to the Flag.
Mrs. Haugen De Puy introduced the Board to the public and explained that Chairperson, Marijane Knudsen, was unable to attend this meeting, therefore, as Vice Chairperson, she would Chair the Meeting.
ACTION ON MINUTES
Mr. Hudson motioned to approve the minutes of the October 10, 2006 meeting seconded by Mr. Kingston.
Vote: Godwin, Alt. – Yes Kawalchuk – Absent
Hudson – Yes Knudsen – Absent
Haugen De Puy – Yes Kingston – Yes
CONTINUED PUBLIC HEARING
CHARLES & SANDRA RANDALL- +/-15’ Area Variance for insufficient lot width, 1971 Berme Road, Tax Map #76.4-2-28.230, R-1 & ‘F’ District
Mr. Randall was present on behalf of his application along with Attorney, Melvin Higgins.
Vice Chair Haugen De Puy requested Mr. Higgins and Mr. Randall to come to the table and recap the situation.
Mr. Higgins stated that Mr. Randall purchased a parcel of land on Berme Road with the intentions of building the home of his dreams and separating the structure that was there and selling it off and utilizing the proceeds for the purpose of selling the home of his dreams. He purchased the land and started construction. He inquired as to the subdividing of the property and was informed that the property did not need approval for subdivision if it was only dividing the existing lot. What he did not know (and Mr. Higgins understood that the ignorance of the law was no excuse) but he did not know the 160’ lot width requirement. He caused a surveyor to survey the land. Board members have told Mr. Randall that his surveyor should have known this requirement. He did not. When it was brought to his attention that he would need to split the land, he filed it and then he was informed
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CONTINUED PUBLIC HEARING
CHARLES & SANDRA RANDALL(cont’d)- +/-15’ Area Variance for insufficient lot width, 1971 Berme Road, Tax Map #76.4-2-28.230, R-1 & ‘F’ District
that there was a shortage of +/-27’ on the proposal that he submitted. One lot was about 170’ and the other lot was +/-144’. Mr. Higgins understood that the Board inquired if Mr. Randall could change the line. Mr. Randall has filed a new maps that indicates that the line has moved and there is a separation of 40’ of the partially built new home and the revised boundary. There is still a short fall of the 160’. It is now about 13’ on the other lot.
Mrs. Haugen De Puy clarified that it was +/-15’.
Mr. Higgins continued that Mr. Randall came here for purposes of making an application for a variance and there was some opposition. The opposition was primarily that the Zoning Ordinance called for 160’ and the objection was that if this was permitted, it could have an impact of all of the properties of the Town and have an impact on the integrity of the Zoning Classification. He could appreciate this, however, Mr. Randall proposes to provide 2 taxable lots and he has moved the line, so the shortfall isn’t as great as it was before. The distance from the edge of the lot to the foundation of the new home is within compliance at 40’. He has not been able to finish the construction of this home and if he’s not able to do the things that he is complicated doing. It will delay it substantially. He proposes that the Board give him the opportunity to divide the property. He genuinely did not know that there was a 160’ requirement. If the integrity of the argument is to do so would attack the integrity of the Ordinance, Mr. Higgins respectfully submitted that this would be a viable argument if there were no variances at all in the Town. His suspicion is that not all lots in this Zoning are necessarily 160’ across. There are probably pre-existing lots that have a diminished required amount and he would suspect that there have been variances granted for this particular Zoning Designation before.
Mr. Higgins continued that his client has no desire to diminish the quality life in this area or diminish the value of the property of his land or of the contiguous land owners. He is having a difficult time conceptualizing how granting the variance would negatively impact the surrounding owners to the extent that it would be a forceful argument preventing him from doing that which he wishes to do. He understands and appreciates that the Zoning Ordinance is put in place to maintain order in the community and to control building and to try and have some semblance. His client isn’t trying to attack the plan. He is trying to improve his life and improve the community. He offers as a result of this, not 1, but 2 taxable properties, both of which will increase in value. The new home will be significantly greater value than what is there now. If he is not permitted to do this, he will struggle and ultimately achieve the result which is to build his new home. But then he effectively has a redundant house next to him and that will either require him to sublease it or do something else and that may in turn impact the Zoning Ordinance. If the thrust of the argument is that to permit this variance would work a substantial and irreparable injustice to the community and to the surrounding neighbors, he would respectfully submit that other than a statement that it will, he doesn’t know that there is any documentary evidence that would support that argument. He does know that if this requested variance is not granted, there will be a significant negative impact on Mr. Randall. There will be a significant negative impact on his ability to complete his structure and there will be a significant negative impact on the condition to the structure that is there. So, if you weigh the equities, he would respectfully submit that the requested variance is not so outrageous as would undermine the plan for Zoning for this community. It would enhance property values in the community. He would again submit, but he does not have the documentation with him, but he’s sure the ZBA has the records whether or not there are grandfathered lots and whether or not the ZBA has granted variances for this particular Zoning District in the past. If the ZBA has, then the argument that this would undermine the
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ZBA MINUTES November 14, 2006
CONTINUED PUBLIC HEARING
CHARLES & SANDRA RANDALL(cont’d)- +/-15’ Area Variance for insufficient lot width, 1971 Berme Road, Tax Map #76.4-2-28.230, R-1 & ‘F’ District
Zoning scheme, appears not to be valid. And he would think that the economic hardship that would be perpetrated on Mr. Randall by a strict adherence to the Zoning Ordinance would be unnecessarily harsh under the circumstances. He could understand if Mr. Randall wanted to reduce it from 160’ to 75’, but 15’ is a relatively insubstantial distance. In the rural community that is the Town of Rochester, Mr. Higgins didn’t think that 15’ is that great of a variance that it would be in the Town’s interest to prohibit Mr. Randall from doing the things that he needs to do to accomplish his goals and try to improve his home and the value of the community.
Mr. Higgins respectfully asked the Board to consider that if they have granted variances before in this classification, that such a variance now would not undermine zoning in this area.
Mr. Kingston wanted to clarify when Mr. Randall applied for his building permit?
Mr. Randall noted that it was 2003. The house was delivered in April of 2003. He wasn’t sure of what month he applied for the building permit. The contractor filed the application.
Mr. Kingston noted that he built his house in the mid 80’s and he applied for his building permit right-of-way and the building inspector at that time made the rules and set backs very clear to him. He had to have the house sited to comply with those requirements before he could begin construction. He was just curious if he applied for the building permit in April of 2003 when the construction started.
Mr. Randall noted that the house was delivered in April of 2003.
Mr. Hudson noted that in his file, there was a building permit granted for August 13, 2003. So in other words, Mr. Randall started the house before the permit was issued?
Mr. Randall noted that the original building permit was issued to his contractor.
Mr. Hudson interrupted to state that there were 2 building permits in the file. One dated August 13, 2003 expires August 13, 2004. There is another one issued August 13, 2003 and also expired August 13, 2004. They were good for a year, but Mr. Randall stated that he started this building before the actual permit was issued.
Mr. Randall wasn’t certain of this. April was a time frame that was in his mind because this is the month that they closed on the property. So he said April, but he doesn’t recall the actual date. The contractor had filed one of the applications in his name and the reason there is a second, was because they had to clarify that Mr. Randall was the owner, so the second permit is a correction and is in Mr. Randall’s name, not Mr. Broadhead of Broadhead construction. Mr. Randall didn’t know at the time that they were put in Mr. Broadhead’s name and that is why the second one was issued. So, he wasn’t certain the date. If that is the date on the permit, then that is when they started. They did not start the house prior to the issuance of a building permit.
Mrs. Haugen De Puy noted that when the permit was issued for the original house, the plan that Mr. Randall submitted (as indicated in the records) was a plan for a house and a garage.
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ZBA MINUTES November 14, 2006
CONTINUED PUBLIC HEARING
CHARLES & SANDRA RANDALL(cont’d)- +/-15’ Area Variance for insufficient lot width, 1971 Berme Road, Tax Map #76.4-2-28.230, R-1 & ‘F’ District
Mr. Randall agreed that this was what was initially applied for in 2003.
Mrs. Haugen De Puy continued that initially in 2003 when he submitted his plan to the Building Dept., he did not at any point submit a plan for 2 houses, was this correct?
Mr. Randall noted that initially he didn’t propose a separation.
Mrs. Haugen De Puy noted that her point was that when Mr. Randall was granted this building permit and Mr. Randall was going to put the first structure on this property, the drawing that was submitted to Mr. Dymond, CEO, in order to get this building permit, showed a house and a garage, did it not?
Mr. Godwin questioned if this drawing was submitted to the building dept. to get the permit?
Mr. Randall noted that the garage shown on the plan is the original structure which is a 2 bedroom apartment on top of a garage. It’s a house that people live in. Its described here as a garage, but its really a home.
Mrs. Haugen De Puy noted that someone turned this particular information into the Building Dept.. This is what is on record.
Mr. Randall noted that the original house is clearly misrepresented as a garage. You can see that there is a septic that comes from this structure. This is where the previous owner lived. Its mislabeled. This is a dwelling.
Mrs. Haugen De Puy noted that she was concerned at what she was seeing on paper versus what was being said at this meeting didn’t coincide. She was referring to the initial plan that was set that was based on the initial building permit.
Mr. Randall noted that what was described as a garage is a facility to live in. His builder filled out the forms. He clearly misrepresented the structure on the plan.
Mrs. Haugen De Puy noted that if you took the sketch which was submitted to the Building Dept. in 2003 and overlay it on the 2006 survey map of the property in question, it is obviously the same piece of property where he was now trying to separate. What she was saying was that the initial Building Permit was based on the 2003 sketch, not on the 2006 survey map. Was there an active Building Permit on record?
Mr. Randall would have to check with the contractor.
Mr. Godwin questioned if Mr. Broadhead was still the contractor?
He was.
Mr. Godwin continued to question if Mr. Broadhead had given the Town any Workman’s Compensation Certificates and Liability Insurance.
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ZBA MINUTES November 14, 2006
CONTINUED PUBLIC HEARING
CHARLES & SANDRA RANDALL(cont’d)- +/-15’ Area Variance for insufficient lot width, 1971 Berme Road, Tax Map #76.4-2-28.230, R-1 & ‘F’ District
As far as Mr. Randall knew, Mr. Broadhead was fully insured. To his knowledge he has presented the Town with everything needed.
Mr. Godwin noted that it doesn’t mean anything if he said he was. He needed documentation. He may have presented himself as the owner.
Mr. Randall acknowledged this and stated that he found out that Mr. Broadhead had listed himself as the owner originally and when Mr. Randall found out, the Building Permit was re-issued in Mr. Randall’s name.
Mr. Godwin felt that Mr. Broadhead may have made some other problems for Mr. Randall. The Building Dept. shouldn’t have given a permit if there were no stamped plans of some sort. You are also required to have an engineer’s statement that the energy code is met. Mr. Dymond isn’t around for the Board to ask him these questions. This may be something that needs to be addressed if Mr. Randall is going to continue construction. He didn’t believe that the documentation was right.
Mr. Randall stated that as far as he knew, the contractor that he hired (Mr. Broadhead) was going to take care of everything that was required. The only problem that Mr. Randall was aware of was that Mr. Broadhead filled out the application as the owner. This was clarified once Mr. Randall found out. As far as he knew, everything was satisfied.
Mrs. Haugen De Puy knew that at the October meeting, Mr. Randall was instructed to check his paper work as Mr. Randall was not sure if the Building Permit was still active. To Mrs. Haugen Depuy, one of the things in her mind that would need to be satisfied would be to answer if there was an active Building Permit. And since a Certificate of Occupancy cannot be obtained without septic approval, that can’t go forward.
Mr. Higgins interrupted that noted that it would appear that Mr. Randall was relying on the representation of his builder and it would also appear that based on the information that was submitted based upon what Mr. Godwin stated, was insufficient to issue a Permit. How a Building Permit got issued, initially to the builder, and subsequently corrected to Mr. Randall, is a mystery that he is not at a position to advise the Board about. But it would appear that he made the application and the Building Permit was granted.
Mrs. Haugen De Puy stated—Initially. Building Permits do expire. They are given in a time frame as what looks to be a year.
Mr. Higgins stated that it appears that Mr. Randall was detrimentally relying on the representation of his builder.
Mrs. Haugen De Puy questioned that once he found out that the initial Building Permit was in error, didn’t a red flag go up and say that something wasn’t right? Now Mr. Randall is here and unfortunately he wants to do this, but he is still in the grasp that he doesn’t have all of his paper work.
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ZBA MINUTES November 14, 2006
CONTINUED PUBLIC HEARING
CHARLES & SANDRA RANDALL(cont’d)- +/-15’ Area Variance for insufficient lot width, 1971 Berme Road, Tax Map #76.4-2-28.230, R-1 & ‘F’ District
Mr. Higgins stated that the problem was that a Building Permit was issued improperly because sufficient documentation wasn’t supplied for the issuance of a Building Permit.
Mrs. Haugen De Puy couldn’t agree with that statement, not being in the Code Enforcement Office.
The Secretary noted that the house plans were not asked to be retrieved as part of the file. She was sure that they were in the office, she just wasn’t aware that the house plans would be needed to review an area variance for lot width.
Mr. Higgins wasn’t denying that Mr. Randall could have been more observant. He did know that Mr. Randall was standing here being as clear and as honest as could be. He does not have the material that the Board is asking for that Mr. Higgins is aware of, and if it is something that needs to be rectified, they will do everything they can to rectify it. The truth is however that by indifference, by commission or omission, Mr. Randall has gotten this far down the road and now he is stuck between a rock and a hard place. And with respect, it would appear that he’s had some assistance in getting here because all requirements weren’t required of him or his builder before.
Mrs. Haugen De Puy noted that unfortunately things change when something starts in 2003 and progresses to 2006. Requirements change, laws change. However, it seems that during this time frame, Mr. Randall needs to upgrade his paper work and understand better of what is required.
Mr. Higgins questioned if the Board was suggesting that they adjourn this matter and go back to square one and be sure that the paper work is correct and come back.
Mrs. Haugen De Puy noted that this would be up to the whole Board.
Mr. Higgins didn’t think that Mr. Randall was trying to “pull the wool over anyone’s eyes here”.
Mrs. Haugen De Puy wanted the paper work trail to be addressed and clarified. Maybe this would set aside some fears of the bounding owners. She didn’t know if this was accurate.
Mr. Randall questioned if there was a possibility that the house plans were in the Building Dept. Office and just not at this meeting?
The Secretary reiterated that the only thing she did not copy from the file were the full set of house plans as they were not requested. They were undoubtedly in the office and she would get them if they were needed.
Mrs. Haugen De Puy questioned the Board how they felt about all that has gone on so far at this meeting? Did they feel that they should get the building plans and additional information and continue the Public Hearing?
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ZBA MINUTES November 14, 2006
CONTINUED PUBLIC HEARING
CHARLES & SANDRA RANDALL(cont’d)- +/-15’ Area Variance for insufficient lot width, 1971 Berme Road, Tax Map #76.4-2-28.230, R-1 & ‘F’ District
Mr. Hudson felt that the Public Hearing should be continued so that Mr. Randall could update his Building Permit and make sure the proper documents were submitted. He also felt that Mr. Randall should go back to his building and discuss all of these issues. He’s part of the reason that Mr. Randall was at this meeting.
Mr. Kingston questioned if Mr. Broadhead didn’t need workman’s compensation insurance because his status was that as an individual or he didn’t have any employees. Does he work alone?
Mr. Randall believed that he did work alone. He’s sure he hired someone to help him, but he is on his own.
Mr. Kingston noted that if he hired people to help him he would need the insurance, no?
Mr. Higgins stated not necessarily. They could be individual contractors themselves. Mr. Higgins does not know Mr. Broadhead and he wasn’t speaking for him.
Mr. Randall noted that as an example he had hired an electrician to do the electrical work.
Mr. Kingston was talking about helpers, that haul the materials.
Mr. Randall noted that this is not a stick built home. It’s a modular and it was supposed to take 4 to 6 months. This is where the first time he came to the Board him and his wife are in shock because its been 3 ½ years.
Mr. Kingston stated that he was looking at the plan and application that he submitted for his original building permit and it says that the house with a separate system would be turned into a garage. This is what the Permit was based on. It wasn’t predicated on a parcel that would end up with 2 homes.
Mr. Higgins noted that he had a young man that rented space from him and he worked for a roofer who was an independent contractor and the roofer didn’t want to pay comp insurance. This is the reality that happens.
Mr. Godwin noted that if this is a modular, then the question of house plans could be solved because they usually submit a set of stamped plans to the State. The Secretary would check with the Building Dept. if these plans were filed in the Town Office as well.
Mr. Randall noted that he recently met with the Building Inspector to see what he would need to get the Certificate of Occupancy. Mr. Randall didn’t foresee an issue with the house plans, because this is what the Building Permit was predicated on. They were told that certain benefits would come from having a modular. The frustration is that there really isn’t a whole lot to get this house done. Mr. Randall is not knowledgeable about building, but he met with Mr. Davis, CEO, to see what would need to be done to get the C/O.
Mrs. Haugen De Puy gave Mr. Randall the list of things he would need.
1. and updated building permit
2. Septic Approval for the Modular
3. an updated list from the Code Enforcement Office of what would need to be done to get the C/O
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ZBA MINUTES November 14, 2006
CONTINUED PUBLIC HEARING
CHARLES & SANDRA RANDALL(cont’d)- +/-15’ Area Variance for insufficient lot width, 1971 Berme Road, Tax Map #76.4-2-28.230, R-1 & ‘F’ District
Mr. Godwin stated that they couldn’t do the subdivision until they had the C/O.
Mrs. Haugen De Puy questioned at what point it was decided to split the property and why?
Mr. Hudson believed it was stated when Mr. Randall first came before the ZBA that the first house he built was going to be for Mr. Randall and then he decided to divide the property and sell the house for resale.
Mr. Randall wanted to clarify. The idea was to build a house—the new structure—for him and his family to live in. As part of this, the contractor was allowed to live in the original structure with the apartment and garage. They had a construction loan that has gone to a regular mortgage now and with the house not being completed, its getting more and more difficult to do this. There is no way they can move in without it being completed.
Mr. Higgins believed that the decision to subdivide the property was in this past year. Mr. Randall had come to see him to see what would need to be done to split the property. Mr. Higgins wasn’t sure that if you were only dividing a lot into 2 parcels, that anything would need to be done except inquire with the Town whether or not subdivision approval would be required. He believed that he went to the Town toward the late spring, early summer. This was his first contact with Mr. Randall.
Mr. Randall agreed with this statement. He had questioned Mr. Higgins if he did indeed need to go through formal subdivision approval and he was told, no he didn’t. Based on this information, he contracted this surveyor to do it. Financially it was getting unbearable and one of the ways to lift that burden would be to do the separation and sell.
That is what Mrs. Haugen De Puy was trying to figure out. From 2003 to 2006, what took so long for completion? She wasn’t aware of a permit that runs for 3 years.
Mr. Higgins noted that Mr. Randall may have been detrimentally relying on the representation of his contractor.
Mrs. Haugen De Puy didn’t know how the rest of the Board felt, but if she were waiting to get into a house, she wouldn’t be waiting 3 years, she would be jumping up and down.
Mr. Higgins noted that Mr. Randall had come into see him, he advised him that he had run into issues. The truth is that he never raised the issue of the contractor before, but Mr. Higgins thinks Mr. Randall is being jerked around. He thinks he got desperate and said he had to pay off this loan and deal with it and he was hoping he’d be able to do that and this is when he approached the issue of the subdivision. He’s got a half completed house and apparently a contractor who wasn’t completely forth coming with him. He understood this was Mr. Randall’s problem and not the Board’s.
Mr. Kingston was curious if he applied for another building permit, given the existing perameters, what the outcome of that request would be.
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ZBA MINUTES November 14, 2006
CONTINUED PUBLIC HEARING
CHARLES & SANDRA RANDALL(cont’d)- +/-15’ Area Variance for insufficient lot width, 1971 Berme Road, Tax Map #76.4-2-28.230, R-1 & ‘F’ District
Mr. Godwin noted that he would issue the permit if he had a stamped document. There’s nothing wrong with having 2 houses on one lot.
Mr. Kingston understood that, but there are Zoning Requirements.
Mr. Godwin didn’t believe there would be a way to do this subdivision without the Variance. Permits can certainly be pulled to get the house inspected and the c/o which may solve some problems and allow the Board to proceed with either saying yes you can have a variance, or no you can’t. He didn’t believe the Board could give an answer either way without the house having a c/o.
Mr. Higgins stated that since a building permit has been granted on what appears to be fairly sketchy information, and his concern is supposed to be how does he get one now? He got to be where he is, partly with the issuance with the Building Permit. He wasn’t blaming the Town, he was simply saying there is a lot of things that took place here that in retrospect could have been done in a better a better fashion. He’s not saying that Mr. Randall is without fault, he should have been more diligent, but he is saying that apparently this building permit was issued.
Mr. Kingston believed from reading the Building Dept. file on Mr. Randall that the permit was issued in good faith based on the intended uses of the property. This sketch and application was what prompted the issuance of the Permit. The decision to subdivide without finding out all of the requirements of subdivision and having a surveyor come out and do this. The Board brought the question forward of if the surveyor had any information of what would be required. Apparently not, or if he did, he didn’t say anything about it. Certainly the property owner has every responsibility to find out what the subdivision requirements are going to be prior to subdividing. Certainly the road frontage requirements and setback requirements should be known. When a property owner moves forward to subdivide, they have to be aware of what the parameters are. Obviously Mr. Randall didn’t do that.
PUBLIC COMMENT
Mrs. Haugen De Puy recognized Michael Callan of 1970 Berme Road to speak. Mr. Callan had looked at the application in the ZBA office on this day. It appears that the application made to the Building Dept. was issued under the pretense that one house would ultimately remain on that parcel. After the construction was completed the 24’ x 24’ building used as an apartment and garage would become just a garage. That seemed reasonable and fair and he wasn’t here to defend Mr. Dymond (former CEO who issued the permit in 2003), but this is probably what he based his decision on. So, why are we to accept at this time 2 houses where only 1 was ever intended? Was the original intent to deceive the Building Dept.? Because right now, Mr. Randall wants to sell 2 houses and Mr. Callan thinks this is outrageous. He recommended that the ZBA vote ‘no’.
Delilah Praete of 1930 Berme Road respectfully had several problems with what was being presented by Mr. Randall and his attorney. The house has been unfinished for 3 years. As neighbors they have been wondering what has been going on and things were represented as Mr. Callan has stated. What was troubling was that things were done and now Mr. Randall is just asking for it to be allowed to go ahead. It sets a precident for not
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CONTINUED PUBLIC HEARING
CHARLES & SANDRA RANDALL(cont’d)- +/-15’ Area Variance for insufficient lot width, 1971 Berme Road, Tax Map #76.4-2-28.230, R-1 & ‘F’ District
following the guidelines and then getting approval after the fact. She wanted to mention that Mr. Broadhead, the contractor—his reputation was being sullied here tonight. He was a very nice guy. She wasn’t sure that Mr. Broadhead was misrepresenting anything. He was the contractor. He had been living in the dwelling above the garage for the entire 3 years. He still lives there. She was wondering if the story was changing because Mr. Randall wants permission to go ahead with the plans, plans that were not approved in the first place. She just wanted to make mention of this. As neighbors they are concerned to have 2 families living on this land. Part of the reason they purchased their land and built there house there was because of the nature and environment on the road. They liked the fact that there were this many houses spaced out in a particular way. They enjoy the quiet.
Mrs. Haugen De Puy offered that this is a 3 acre parcel and this is 1 acre Zoning, so realistically Mr. Randall has the right to put 3 dwellings on this parcel.
Mr. Godwin noted that it is also permissible to have 2 residences on 1 lot.
Mr. Higgins noted that the statement was made that this was originally done to deceive. Mr. Randall noted that he didn’t make the initial application and Mrs. Praete has indicated about the integrity of the lot size. The lot is substantial. The issue here was 15’. With respect to the application and with intent to deceive, he wasn’t sure if this was readily apparent from the documents that were filed. It is true that Mr. Broadhead is being sullied, but not by ‘us’. It is clear and was clear that there was an apartment over the garage. He doesn’t believe it said that the garage wouldn’t be used for apartment purposes afterward, but it would be a contiguous garage and he doesn’t know if that would make any difference as Mr. Godwin pointed out, it doesn’t matter whether it is 1 family or 3 families living there as long as it meets the requirements of the Zoning Ordinance. It does not appear that there is a prohibition against more than 2 buildings on that property that can be occupied by human beings, so he didn’t know that the assertion that there is an intent to deceive is reasonable, factual, or supportable, but it certainly has nothing to do with Mr. Randall’s initial application. There is a leap of logic here that Mr. Higgins did not agree with. With respect to the issue with how many people can be on the property, if Mr. Randall didn’t want to subdivide, he could have just as many people as he has now or more. So, that isn’t a valid argument either. It ultimately devolves around 15’.
Mr. Callan read a letter from Greg Cruikshank. Mr. Cruikshank felt that something was wrong and that the parcel was too small to accommodate. This variance should have been requested 3 years ago-not now. He respectfully requested that the variance be denied.
Mrs. Haugen De Puy reiterated that in this Town, we are 1 acre Zoned. She urged the public to keep that in mind.
Mrs. Praete understood that, but what was troubling is that Mr. Randall used the expression before, “good faith”. Something appears not to be in good faith by the fact that Mr. Broadhead has been living on this property for 3 years and then to hear Mr. Randall say that he is shocked to discover these things. Is Mr. Broadhead living there for free? Does he get a rent check each month? The point is that to suddenly be surprised by this person that he has been in a relationship with. There is something wrong.
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ZBA MINUTES November 14, 2006
CONTINUED PUBLIC HEARING
CHARLES & SANDRA RANDALL(cont’d)- +/-15’ Area Variance for insufficient lot width, 1971 Berme Road, Tax Map #76.4-2-28.230, R-1 & ‘F’ District
Mr. Higgins agreed that there was something wrong. The application apparently was deficient when it was originally submitted—or there are questions about its adequacy. Nonetheless the Building Permit was granted. The Building Permit has lapsed. There is a lot of inference being tossed around that Mr. Randall has attempted to deceive a lot of people. Mr. Randall is guilty of relying upon the representations that were made to him by Mr. Broadhead and other people. He is guilty of a lack of diligence in pursuing the issues of the requirements of the Zoning Laws. That does not rise to the level of a concerted plan to deceive the Town or the contiguous neighbors. Nor does it rise to the level of the grand scheme to evade everything. They are here. They are telling the Board what their situation is. The argument of the number of people on the property appears not to be fruitful, so we then get back to the issue of the 15’.
Mrs. Haugen De Puy thanked everyone for their input.
Mr. Hudson motioned to continue the Public Hearing. Mr. Kingston seconded the motion. No discussion.
Vote: Godwin, Alt. – Yes Kawalchuk – Absent
Hudson – Yes Knudsen – Absent
Haugen De Puy – Yes Kingston – Yes
Mr. Higgins would be away on December 12, 2006 the date of the next meeting.
Mrs. Haugen De Puy advised Mr. Higgins to discuss this with his client and let the Secretary know if they would be able to attend the meeting or if they would need it postponed to January.
PRE-APPLICATION PRESENTATION
WILLIAM JANSEN– +/-15’ Area Variance for side yard setback for garage, 4 Rondout Lane, Tax Map#77.1-4-1, R-1 District
Mr. Jansen was present on behalf of his application.
Mrs. Haugen De Puy explained that this was an informal meeting for Mr. Jansen where the ZBA would tell him what they were looking for and tell him what he needed to do. She understood that this was an Area Variance for a side yard setback for a garage on Rondout Lane which is in the Mountain View Stables Subdivision.
Mr. Jansen explained that in 2004 he purchased the property and applied for a Building Permit in 2005 and built a modular home that consisted of 8 boxes and was one of the reasons why he put the driveway where he put it because the other side of the property was too steep. The property is +/-4.6 acres. He finished the house in 2006 and got the C/O. The original application didn’t show a garage. Now he is exploring the possibility of building a garage at the end of his driveway and he would need a 15’ variance. Mr. Jansen had pictures at the meeting to show general location. Looking at the house on the left side is a nice flat area that is ideal for a driveway. On the right side is hilly and not adequate. It’s the ideal place for the driveway, and unfortunately because of the shape of the lot, the back is long and narrow. It goes 600’ back to the Rondout River.
Mrs. Haugen De Puy noted that this information would need to be re-explained that the Public Hearing.
T/ ROCHESTER PAGE 12
ZBA MINUTES November 14, 2006
PRE-APPLICATION PRESENTATION
WILLIAM JANSEN (cont’d)– +/-15’ Area Variance for side yard setback for garage, 4 Rondout Lane, Map#77.1-4-1, R-1 District
Mr. Godwin asked if Mr. Jansen would consider attaching this garage to his house?
Mr. Jansen noted that it wouldn’t work with the way the house was configured. He has spoken to neighbors. Most lots in that area are about 5 acres. On the deed they all agreed never to subdivide the property even though its over 1 acre.
Mrs. Haugen De Puy explained that the ZBA is given the power to change or vary the law and that is what they would be doing. In order to make this determination the ZBA has to consider the benefit to the applicant as it is weighed against he safety and detriment and welfare of the neighborhood.
Mr. Jansen noted that he understood. He was simply exploring the possibility and could live without a garage.
Mrs. Haugen De Puy continued to explain how the ZBA had to make their decision. They had to see if this could be achieved by another method. Like Mr. Godwin asked—could it be attached to the house. The reason that Mrs. Haugen De Puy is posing all these things to Mr. Jansen is because the ZBA has to build a record on which to base their decision. So in order to establish that this is the only place to put this garage, Mr. Jansen has to establish a record to show why these other things are not feasible, whether its not economically feasible, the lay of the land… All of this has to be part of the record. Not having a complete record can give you heart ache and heart break.
Mr. Jansen understood that he would need to meet with the Planning Board for their Advisory Opinion before his Public Hearing could be set. Mr. Jansen knew that when he built his house that if he wanted to build a garage in the future that he would need to get a variance. The lay of the land wouldn’t have permitted it any other way.
OTHER MATTERS
Mr. Hudson motioned to recommend to the Town Board to re-appoint Mrs. Knudsen as Chairperson, Mrs. Haugen De Puy for Vice Chair and Rebecca Paddock Stange for Secretary for the 2007 year. Seconded by Mr. Godwin.
Vote:
Godwin, Alt. – Yes Kawalchuk – Absent
Hudson – Yes Knudsen – Absent
Haugen De Puy – Yes Kingston – Yes
Mr. Hudson motioned to recommend to the Town Board that Mr. Kingston be reappointed for another term as a member and that a letter of such be drafted to the Town Board. Mr. Godwin seconded the motion.
Vote:
Godwin, Alt. – Yes Kawalchuk – Absent
Hudson – Yes Knudsen – Absent
Haugen De Puy – Yes Kingston – Yes
T/ ROCHESTER PAGE 13
ZBA MINUTES November 14, 2006
OTHER MATTERS (cont’d)
Mr. Godwin wanted to discuss something about the Building Dept. It has been the practice that you didn’t have to do anything. In any other jurisdiction that he worked in, he couldn’t do what he does here. He can walk in and pull a permit and say that he is a contractor for someone that he doesn’t even know. He knows contractors that went recently to get permits without workman’s compensation insurance. Maybe someone should write a letter and tell the Building Dept. to start paying attention. The State is going to come along or there is going to be an accident and they’ll look back and say that the Town never asked for the insurance. He knows its inconvenient, and it costs money to get it and to pay whoever is working for them. Mr. Godwin has it and he only has 1 employee.
Mrs. Haugen De Puy didn’t know if it was up to the Board. If Mr. Godwin wanted to do this on his own he was free to do so.
Mr. Hudson motioned to adjourn the meeting. Seconded by Mr. Kingston. All members present in favor.
As there was no further business to discuss, Vice Chairperson Haugen De Puy adjourned the meeting at 9:00 PM.
Respectfully submitted,
Rebecca Paddock Stange, Secretary