Minutes of January 9, 2007 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: Beatrice Haugen-De Puy, Vice Chair
James Kingston
Jennifer McKenzie, Alternate Stanley Hudson
Elizabeth Kawalchuk
Marijane Knudsen, Chairperson
Pledge to the Flag.
Chairperson Knudsen introduced the Board to the public noting that Mr. Kingston was just re-appointed for another term as a member. She also welcomed Jennifer McKenzie who was in the audience. Ms. McKenzie is the Board’s new alternate and when a member is absent she is requested to sit in on the application. There is a full Board tonight, so she was not requested to participate.
ACTION ON MINUTES
Mrs. Haugen De Puy motioned to approve the minutes of the November 14, 2006 meeting with the amendment to reflect the October 10, 2006 minutes were approved. Seconded by Mr. Kingston.
Vote: McKenzie, Alt. – Not required to participate Kawalchuk – Yes
Hudson – Yes Knudsen – Yes
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.
Chairperson Knudsen noted that she was absent at the November meeting, so she requested that the Vice Chairperson get the Board and public up to date on the application.
Vice Chair Haugen De Puy requested Mr. Higgins and Mr. Randall to come to the table and recap the situation.
Mr. Higgins stated that the last time they were here they were seeking a variance to allow Mr. Randall to divide his parcel into 2 lots. 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
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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
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
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 map 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 15’ on the other lot. At the previous meeting the Board requested that the building permit be updated and renewed which the applicant has done. The Board also indicated that they would look better upon this application if the building of the unfinished home had gotten underway again. Mr. Higgins was unaware at the last meeting of the nature of the relationship between Mr. Randall and the builder Mr. Brodhead. They had entered into a partnership agreement to get some work done. In the last 2 months Mr. Randall has tried everything that he could to get the matter moving and to proceed with the completion of the construction of the one house to compete it. Neither Mr. Higgins nor Mr. Randall can tell the Board that this work would be completed anytime soon. The reason for this is that Mr. Brodhead is unwilling to proceed and Mr. Randall has entered a situation as to where he cannot complete this without the builder. The applicant can either ask for the Board’s indulgence and a continuance or the applicant can be conditioned that he will proceed with the matter once he has resolved his issues with his builder or the applicant can withdraw the application and proceed with the matters that he has to with the builder and ultimately he’ll have to put the property on the market if he can’t resolve the issue. These are the options the applicant has. They weren’t going to tell the Board that they were going to commence the completion of this structure in the next 2 weeks. It is simply economically and realistically impossible for the applicant to do this.
Chairperson Knudsen questioned when the applicant felt that he was going to resolve the issue with the builder?
Mr. Higgins noted that he could not give the applicant a definitive time as they would have to take the builder to court.
The Chairperson suggested giving a 2 month extension.
Mr. Higgins felt this was acceptable, however he couldn’t see this being resolved in 2 months. He felt that would be widely optimistic. He would be willing to give the Board a progress report, but he would not be willing to tell the Board that the matter would be resolved.
Mr. Kingston questioned if the property was currently on the market?
Mr. Higgins answered that no, it was not. He had discussed this as an option with his client. Mr. Randall has indicated that he is actively contemplating it. Mr. Higgins has indicated that it might be the way to go.
Mr. Kingston noted that he drove by the property before this meeting and saw a for sale sign on the front lawn.
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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
Mr. Higgins noted that if that is the case it has nothing to do with his client and he doesn’t know what is for sale.
Mr. Randall noted that this is his sign.
Mr. Higgins apologized for misspeaking.
Mr. Randall continued to note that he was pursing the matter and maybe getting a realtor.
Mr. Higgins noted that pursuing it by putting a sign out front that says “for sale by owner” is clearly not going to produce the kind of results that the Board or the applicant wants.
The Chairperson noted that in reviewing the minutes from the last meeting one of the things that Mrs. Haugen De Puy had asked Mr. Randall to submit was the updated building permit.
Mr. Higgins verified that the renewed building permit has been obtained. They did not obtain final septic approval for the modular. The only thing they did was get the updated building permit. They have continuing difficulties with the builder.
The Chairperson noted that they could entertain a motion for an extension to see what progress is made by the applicant in March?
Some Board members didn’t think this would be enough time.
The Chairperson noted that they could have the applicant come back in April and that would give them 2 full months to work on resolving what issues they have.
Mr. Higgins agreed that this was a good way to proceed. This was the most efficient way to proceed.
Mr. Kingston was concerned that what was applied was a variance for lot width and if Mr. Randall doesn’t proceed and resolve this problem, this will be presented to the Board again. He doesn’t know if it is resolving the issue by postponing it. He doesn’t see what will be gained.
The Chairperson agreed that if Mr. Randall sold the property in the interim and the buyer isn’t aware of the problem if they don’t research the property in the Town offices, she agreed that this could present a problem.
Mr. Kingston questioned if this was considered under disclosure?
Mr. Higgins noted that the yes, there does. The way it is intended to be marketed would be for a family arrangement to occupy the 2 dwellings. They know they don’t have the variance, so it would be ludicrous to sell it as 2 lots. Mr. Higgins would not tell people that they did have the variance when they do 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
Mr. Kingston questioned if Mr. Randall was told that he did not need subdivision approval for subdividing an existing lot—who informed Mr. Randall that he didn’t need this approval? And why wasn’t the information given to Mr. Randall at this time?
Mr. Randall explained that he had actually called himself to ask about subdivision and he was told that because of the size of the lot that he didn’t need formal subdivision approval from the Planning Board. This was the reason that he went and got it surveyed. It wasn’t until he went to the until Mr. Randall had come into the Building Dept. back in the Fall to get a letter for his bank to say that this division of his property was legal. He wasn’t aware until then that it wasn’t because he didn’t have the required lot width.
Mr. Kingston questioned if this was before or after he was issued the building permit?
Mr. Randall noted that this was way after. He purchased the property in 2003 and found the problem with splitting it in 2006.
Mr. Kingston noted that when applying for a building permit to start construction that the applicant had to submit a plot plan. At that time on the plot plan, did Mr. Randall indicate that it was being subdivided?
Mr. Randall noted that he did not because those weren’t the intentions at that time. Again, Mr. Randall admitted that he was an idiot and there was no excuse because he trusted his builder. He didn’t even review the application before it was submitted. After one of these meetings and the Board pulled out the building permit and the request to update it, the Board was looking for Mr. Randall to justify what he did. He sat there and recalled that he hadn’t participated in the process like he should have. That is no excuse, and now he is in a big mess because of it.
Mr. Kingston asked for a point of verification. When Mr. Randall applied for the building permit initially and showed the building permit to show 2 buildings on one lot, did they intimate in any way that he was related by blood or marriage to Mr. Brodhead, the builder?
Mr. Randall noted that he wasn’t related at all. It wasn’t family. His only relationship with Mr. Brodhead was through church. Mr. Randall came to the idea of subdividing because the modular wasn’t getting finished and he thought this might be a way to try and salvage it.
Mr. Kingston couldn’t imagine in his mind that how was anyone going to build 2 buildings on land with shared ownership without being related?
Mr. Randall noted that he and his wife owned the property. He didn’t share the property with the builder. They were in business together where Mr. Randall bought a backhoe and a truck and the business was where they were going to acquire properties and build homes. This first one was going to be a home for Mr. Randall and his family, maybe they would live in it for 2 years and continue.
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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
Mr. Kingston noted that from the road the original home was on the right and the new home was on the left. The new home was for speculation?
Mr. Randall noted that they were going to live in it for a minimum of 2 years.
Mr. Kingston still couldn’t see how apparent shared ownership of a piece of land.
Mr. Higgins noted that he did not imply or indicate that he and the builder were sharing the land, because they were not. Mr. Brodhead wanted to get further involved in construction. He made an investment with Mr. Randall to build the new home. Mr. Brodhead had no interest in the home or the property. The man was paid to construct the home and the materials and equipment were purchased by Mr. Randall. Mr. Randall found out that Mr. Brodhead was using the equipment for other jobs and was not completing the modular while Mr. Randall was getting nothing out of it. Mr. Randall realized that he had been ‘had’. When he came to see Mr. Higgins over a year ago and told him his problem. Mr. Higgins suggested calling the Town to see if he could subdivide.
Mrs. Kawalchuk questioned if he was going to market this as 1 parcel.
The applicant agreed.
The Chairperson noted that Mr. Brandt (the surveyor) had filed the map and deed with the County. Mr. Higgins should check as this could also cause a problem.
Mr. Higgins would check this out. Mr. Randall is a man of good will who got involved in a circumstance where in hind sight he shouldn’t have. He was a little lax in the way he did his business with someone who was presumably a friend of his. As a result of it he is now facing dire financial problems. This is a man that is retired who can no longer be retired.
Because this was a Public Hearing the Chairperson opened it up for Public comment.
Greg Cruickshank, who was a bounding owner was recognized to speak. He stated that Mr. Brodhead told him that he was the property owner. He would like the Board to get a hold of Mr. Brodhead because he called all 3 of the neighboring families that were in attendance at this meeting and told them a different story within the last month. He could tell the Board what Mr. Brodhead told him.
The Chairperson noted that this was heresy. He could share it if he wanted, but it was heresy.
Mr. Cruickshank noted that Mr. Brodhead told him that the original plan was to get the variance in the beginning and Mr. Randall wanted to wait until they got under construction.
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ZBA MINUTES January 9, 2007
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
Chairperson Knudsen could say that the Public Hearing is advertised in the newspaper, on the Town Hall door, and on the internet. Mr. Brodhead could have come. If this hearing is continued, he is welcome to come and submit his own information.
Mr. Cruickshank didn’t think Mr. Brodhead would come because of what has been going on. Mr. Cruickshank wanted to voice his opinion that he was opposed to this. If the Board looked at the February 4, 2005 application it shows one driveway for 2 houses. The original plan was to turn the original house into a garage for storage and live in the one house. And on the survey map done by Gerald Brandt in 2006, you now see 2 driveways.
Michael Callan was recognized to speak. He lived at 1970 Berme Road and voiced his opposition to the variance previously and wanted to continue to do this. He sees nothing that leads him to believe that the Board should vote positively for this.
Michael Praete of 1985 Berme Road agreed with his neighbors that it was inappropriate to grant the variance.
Steven L. Fornal, Chairman of the Planning Board was recognized to speak.
Chairperson Knudsen informed the Public that when an application comes to the ZBA they have to send it to the PB for an advisory opinion. The Planning Board has the option of rendering a favorable or unfavorable opinion. They didn’t get to this part in the application process yet, but she believed that the Planning Board did render an unfavorable opinion (note- Chairperson Knudsen corrected herself later in the meeting. The PB rendered a favorable decision.
Mr. Fornal continued and thought that maybe a variance was the wrong way to go. There is misinformation. This application is not about road frontage. It’s about lot width and as it’s defined in the Town Code, this is taken in 2 ways. It can be taken from the middle of the property or the road frontage. It would seem to him that a very simple solution to this would be a lot line adjustment in which the center line simply comes down to the midway point and jots around to give the necessary 160’ lot width requirement. This would not require a variance from the ZBA. The new Code probably won’t have that kind of ‘wiggle room’ however the way the code is written now it is not road frontage, it is lot width as described as the middle or the road. This would be a way to break up the 2 parcels. On the ground there would be no change. This would require the proper survey and deed revisions.
Mrs. Kawalchuk questioned if Mr. Fornal had brought this up to the Planning Board previously?
Mr. Fornal and the Secretary noted that he had brought this up.
The Chairperson noted that they have spoken with the applicant and his attorney. Was the Board willing at this point to make a motion to give an extension to the applicant?
The way Mrs. Kawalchuk saw it he would have to sell it as 1 parcel.
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ZBA MINUTES January 9, 2007
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
Mrs. Haugen De Puy motioned to extend a 2 full month extension to get his matters in order. Motioned seconded by Chairperson Knudsen.
Discussion:
Mrs. Kawalchuk wasn’t sure if an extension was going to help him.
The Chairperson noted that this puts it in limbo for the applicant to get his affairs in order. Even if the Board closed the Public Hearing and awaited the decision making period of 62 days, it’s kind of the same amount of time.
Mr. Kingston doesn’t see what the benefit of an extension would be. Mr. Randall is between a rock and a hard place. There are for sale signs currently on the property, so obviously he has the intention of selling it so it becomes worth more money. He didn’t see how this was beneficial.
Vote: McKenzie, Alt. – Not required to participate Kawalchuk – No
Hudson – Yes Knudsen – Yes
Haugen De Puy – Yes Kingston – No
The Chairperson noted that they would see Mr. Randall back in April for his Public Hearing.
Mr. Fornal questioned if the Board would re-check the Planning Board’s advisory on this application. He recalled that they had given him a favorable advisory.
The Secretary checked the file and Mr. Fornal was correct. The Planning Board did give this application a favorable advisory.
Chairperson Knudsen apologized, she had read another applicant’s Advisory response. She clarified this for the record. Mr. Randall received a favorable advisory from the Planning Board.
Members of the public wanted to know what would happen in this application next.
Chairperson Knudsen told the public that the PB has issued a favorable advisory for the variance. At the April Meeting they would continue this Public Hearing. Eventually the Public Hearing would be closed. The Board will do a SEQRA Determination, which is part of the State Environmental Quality Review Act to determine if anything harmful will happen to the environment as a result of this application. Then they would make a decision. This Board in the past has always done their homework and are prepared to make a decision at the close of the Public Hearing (in most cases). The applicant can withdraw his application if he chooses. If the applicant doesn’t show the Board had the option of closing the Public Hearing and denying the application.
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ZBA MINUTES January 9, 2007
PUBLIC HEARING
WILLIAM JANSEN – +/-15’ Area Variance for side yard setback for garage, 4 Rondout Lane, Map#77.1-4-1, R-1 District
Mr. Jansen was present on behalf of his application.
As the Chairperson had previously stated, she was not present for the last meeting. She noted that Mr. Jansen did a Pre-application presentation in November at which time the applicant was informed that it was an informal meeting and that Mr. Jansen would be coming to this meeting for his Public Hearing. At this time Mr. Jansen needed to explain to the Board what he was planning to do. She also believed that at the November meeting he was looking for an area variance and the criteria and application process had been explained to him. So, he was aware of the criteria he needed to meet in regards to this variance, was that correct?
Mr. Jansen was not clear on what the Chairperson was saying.
Chairperson Knudsen clarified, when Mr. Jansen appeared before the Board in November, the Board told him different things that he needed to do. They told him that he would need to re-explain what he had already told the Board at the November meeting for the record. They asked if he would consider attaching the garage to the house. They also explained in making the decision the Board had to look at the benefit of the applicant weighed against the safety and welfare of the neighborhood, whether it was self created, those kinds of things.
Mr. Jansen understood. Mr. Jansen noted that his property is located at 4 Rondout Lane which is on the corner of Rondout Lane and Lucas Avenue. His driveway is located on Rondout Lane, which is a private road. He purposely located his driveway in the location to utilize the private road entrance and he was building a modular unit with 8 boxes and the alternative location on the other side of the structure would have been nearly impossible to bring the boxes up and he would have to have a temporary driveway where the permanent driveway is anyway. If he located the structure further away from the side setback in question it would be difficult and unacceptable to him as to the proper location for the garage. So, he was here to apply for a variance to locate the garage at the end of the driveway next to the house. He didn’t attend to attach the garage to the house and he would go through the process to see if this variance was acceptable and if it wasn’t he would locate the garage in another location. There was plenty of room, this was only his first choice.
The Chairperson explained that one of the things about a variance is that it does vary the law. And the most important thing that the ZBA takes into consideration that if there are other alternatives that can be done, this is what has to be done. A variance is when everything else doesn’t work, then you come to the Board. Mr. Jansen just explained to the Board that there are other alternatives and this was simply his favorite.
Mr. Jansen verbally withdrew his application and left.
Mr. Kingston motioned to close the Public Hearing seconded by Mr. Hudson. No discussion.
Vote: McKenzie, Alt. – Not required to participate Kawalchuk – Yes
Hudson – Yes Knudsen – Yes
Haugen De Puy – Yes Kingston – Yes
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ZBA MINUTES January 9, 2007
PUBLIC HEARING
WILLIAM JANSEN – +/-15’ Area Variance for side yard setback for garage, 4 Rondout Lane, Map#77.1-4-1, R-1 District
The Chairperson announced that the Public Hearing was closed and the application was withdrawn.
She then instructed the Secretary to send a letter to confirm that the application is withdrawn.
As Mr. Kingston was now retired and no longer needed an extra half hour to get to the meetings, the Chairperson motioned to change the meeting time to 7:00PM. Seconded by Mrs. Kawalchuk.
Vote: McKenzie, Alt. – Not required to participate Kawalchuk – Yes
Hudson – Yes Knudsen – Yes
Haugen De Puy – Yes Kingston – Yes
Mrs. Kawalchuk motioned to adjourn. Seconded by Mrs. Haugen De Puy. No discussion. All members present in favor.
As there was no further business to discuss, Chairperson Knudsen adjourned the meeting at 8:15 PM.
Respectfully submitted,
Rebecca Paddock Stange, Secretary