Minutes of June 12, 2007 of the Town of Rochester Zoning Board of Appeals, held at the Town Hall, Accord, NY.
Meeting was called to order at 7:00 PM by Chairperson, Marijane Knudsen.
Present: Beatrice Haugen-De Puy, Vice Chair Absent:
James Kingston Jennifer McKenzie, Alternate Stanley Hudson Marijane Knudsen, Chairperson
Elizabeth Kawalchuk
Pledge to the Flag.
ACTION ON MINUTES
Mrs. Haugen De Puy motioned to approve the minutes of the May 8, 2007 meeting. Seconded by Mr. Kingston
Vote: McKenzie, Alt. – Yes Kawalchuk – Yes
Hudson – Yes Knudsen – Yes
Haugen De Puy – Yes Kingston – Yes
PRELIMINARY DISCUSSION
ROSALIE SENDALBACH– Appeal of CEO determination in letter dated May 11, 2007, 43 Indian Road, Kerhonkson, Tax Map# 60.3-1-28.2, ‘A’ Zone
Mrs. Sendalbach was present on behalf of her application.
Chairperson Knudsen noted that the Board has received the packet of information from Mrs. Sendalbach and the Building Dept. file. There was also a letter from the Planning Board Chairman of this date.
Mrs. Sendalbach noted that they had wanted to subdivide their 2 acres into 1 acre lots for her father in law.
Mrs. Kawalchuk questioned how many acres they had?
Mrs. Sendalbach responded 2.
“Chairperson Knudsen read Chairman Fornal’s letter dated June 12, 2007 as follows:
As Rosalie Sendelbach’s case contains quite a bit of information I thought I would attempt to consolidate and condense the pertinent information relevant to this appeal.
As you know, our subdivision code requires Planning Board approval for any division of land that meets any/all of the following criteria:
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PRELIMINARY DISCUSSION
ROSALIE SENDALBACH (cont’d)– Appeal of CEO determination in letter dated May 11, 2007
Subdividing previously subdivided property
If there are less than four lots to be created
If the lots to be created are less than 5 acres per
If the lots to be created are located on a private road
Ms. Sendelbach’s lot (that she proposed to subdivide) was created without Planning Board approval. It was a further subdivision of a previous subdivision, there were less than four lots created, the acreage per lot was less than five acres each and the lots were created off a private road (Indian Road).
Therefore, Ms. Sendelbach’s lot is essentially illegally created. Further, the private road does not have a 50′ Right-Of-Way to closest public road (Schroon Hill Road). Ms. Sendalbach stated that she would be unable to get every resident along Indian Road to grant a 50′ Right-Of-Way.
The Planning Board turned down her previous request for subdivision based upon the fact that she needed a 50′ Right-Of-Way from subject property proposed for subdivision to extend the full length of Indian Road. In addition, she would have been required to submit a Road Maintenance Agreement (acceptable to the Town Attorney) covering the entire length of Indian Road. Seeing as the applicant was unable to fulfill these requirements, her request for subdivision was denied.
Steven L. Fornal
Planning Board Chairman
Town of Rochester”
Chairperson Knudsen noted that according to Mr. Fornal, the lot was illegally created and the lot doesn’t have a 50’ right-of-way to the closest public road.
Mrs. Sendalbach noted that she had never attended a Planning Board (PB) meeting.
The Secretary noted that Mrs. Sendalbach had a meeting, but she did not attend. The Board reviewed her application then.
Chairperson Knudsen noted that another thing was that the PB told the applicant that she would need to get an additional 25’ from her neighbors to have a 50’ right-of-way. A Road Maintenance Agreement would have also had to have been filed. After the Board denied this, Mrs. Sendalbach submitted a Zoning Permit that was denied by the Code Enforcement Officer.
Mrs. Sendalbach stated that she had never submitted a Zoning Permit.
The Secretary noted that she did. This was what was not addressed by the Code Enforcement Office and the reason she was at this meeting.
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PRELIMINARY DISCUSSION
ROSALIE SENDALBACH (cont’d)– Appeal of CEO determination in letter dated May 11, 2007
Chairperson Knudsen noted that this was a pre-application presentation and it was very informal. They wanted to make sure that everyone was doing the right thing. As it stands right now, Mrs. Sendalbach applied to the Code Enforcement Office by submitting the Zoning Permit Application.
The Secretary helped clarify the situation. The Code Enforcement Office told Mrs. Sendalbach that she had the right to appeal because the Code Enforcement Office refused to address her latest application because none of the circumstances in which the subdivision was denied had changed. The Code Enforcement Officer had nothing new to review.
The Chairperson noted that because she applied for the Zoning Permit, this gave Mrs. Sendalbach the right to appeal the Code Enforcement Officer’s decision.
Mrs. Sendalbach stated that she was never told in 2004 that she was allowed to appeal the PB’s decision to deny the application. She had no idea that she could appeal.
Chairperson Knudsen stated that she couldn’t have appealed the PB’s decision with the ZBA—this would have had to have gone to the Supreme Court. She was able to come to the ZBA today because she is appealing the Code Enforcement Officer’s determination not to review her Zoning Permit Application based on the May 11, 2007 letter from the Code Enforcement Office to Mrs. Sendalbach where they refused to review the application.
Mrs. Sendalbach noted that her lot was legally divided because she has a map that was signed by the code officer at the time. She showed her lot on the map and the signature of the Planning Board Chairman, William Carrol.
The Secretary was familiar with the situation and explained that the applicant’s lot was only shown as a bounding owner on this map and was not part of this filed subdivision map.
Mrs. Sendalbach stated that you are legally allowed to subdivide out, under the code, 3 lots out, which was also confirmed by Ulster County in Kingston. They said that this was the regulation that you could divide out and if there was a signature and it was approved and the lot is legally on the map, that this was a legal subdivision.
The Secretary noted that Indian Road was once called Montauredes Road and this was a pre-existing right-of-way that Nicholas Lalli had owned a bunch of land on. He split up some parcels and Mrs. Sendalbach’s lot was part of that land at one time, but was not part of this subdivision that she is claiming it is. The applicant’s property is clearly identified as a bounding parcel and not one of the lots that received Planning Board Approval.
Mrs. Sendalbach noted that the Town Attorney, Mary Lou Christiana, Esq., had also said that you could subdivide up to 3 lots out of a subdivision. She again argued with the Secretary that her lot was part of the subdivision by John Nicholas Lalli and signed by Willaim Carrol 7/8/92.
Mrs. Haugen De Puy noted that this didn’t appear to be part of the subdivision. It was clearly a bounding parcel.
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PRELIMINARY DISCUSSION
ROSALIE SENDALBACH (cont’d)– Appeal of CEO determination in letter dated May 11, 2007
The Secretary noted that she researched this and found out that the Applicant’s parcel was once a part of the lands that were subdivided by John Nicholas Lalli and somewhere along the lines it just popped up out of no where, thus making it an illegally created lot, as it would have required PB approval as it is on a private road.
Mrs. Sendalbach argued again that by law you were able to subdivide up to 3 or 4 parcels. She had the head surveyor in the Kingston Office, Bert Winne, review the map and he said that by their code they were correct and disputed Mr. Fornal’s statement that it was an illegal lot and further said it was absolutely incorrect. That these lots were subdivided, there was a Planning Board Subdivision.
Chairperson Knudsen acknowledged that this map did get final approval in 1992 and William Carrol was the Chairman, however her lot was not a part of this map. It just happened to be listed on the map.
Mrs. Sendalbach argued that it was on the map that was signed and by law you are allowed in a subdivision to split out 3 lots.
Mrs. Haugen De Puy questioned who gave Mrs. Sendalbach a copy of this map?
Mrs. Sendalbach had obtained a copy from the Ulster County Clerk’s Office. Mr. Fornal told her that they didn’t have a copy of this map in the office.
The Secretary corrected Mrs. Sendalbach and noted that she had the same map as the applicant and also brought it to the meeting. It is on file in the PB office.
Mrs. Sendalbach continued to argue about the legality of her lot and whether. She continued to falsely state that the laws say that you can split up to 3 lots out of a subdivision.
Mrs. Haugen De Puy wanted to see a letter from Mr. Winne stating everything that Mrs. Sendalbach has said.
The Chairperson noted that basically what is happening here is that the applicant is trying to appeal the 2004 decision. She felt that the Board would have to get legal interpretation as she really felt that there has been time limit expiration. Usually there is a 30 day window for an appeal.
Mrs. Sendalbach stated that no one ever told her that said that she could appeal the 2004 decision. There was so much confusion when she first went to submit the application. She spoke with Mary Lou Christiana, Esq. who was the Town Attorney at the time. She was also scheduled for several different meetings that had changed a number of times. She came here to present her case, but couldn’t come to the alternative meeting, but was never told from anyone on the Board that she could appeal this decision and this is why she didn’t do it in a timely matter. She just gave up. When she originally bought the property she brought the title the deed and her 2004 2 lot subdivision map to Doug Dymond’s Office and they said that she was absolutely within code if she later on wanted to subdivide.
Mrs. Haugen De Puy asked if she had gotten a letter from Mr. Dymond stating that?
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PRELIMINARY DISCUSSION
ROSALIE SENDALBACH (cont’d)– Appeal of CEO determination in letter dated May 11, 2007
Mrs. Sendalbach did not. She also contacted the title company when Mr. Fornal stated that this was part of an illegal lot. She told Mr. Fornal that before he made that statement she would really appreciate if he could check with the Attorney and clarify it and send her something from the Attorney’s office which he never did. And when she spoke with Mr. Winne and when she spoke with an Attorney in Ulster County and when she went to the Real Property Office they said it was impossible to state that something is an illegal lot when there is something signed by the Planning Board and its within their code. A title search company would have found that out. So she had filed the application because Doug Dymond said that they wouldn’t have a problem. They bought the property in 1999 and when they went in 2004 to subdivide it, the said, now you can’t do it because her road wasn’t up to code and she’d have to get an Area Variance because they thought it was a liability to the Town.
Chairperson Knudsen noted that there was a letter on the record dated July 21, 2004 that states that an Area Variance would not apply. This was based on Mary Lou Christiana, Esq. advice at the time. Therefore, the denial from the PB would have to go to the Supreme Court, because it is not something the ZBA could hear.
Mrs. Sendalbach noted that she had asked for a Variance under the subdivision regulations. Schroon Road and Schwabbie Turnpike are both Town Maintained Roads and they are in the same condition or if not worse that Indian Road.
Mrs. Haugen De Puy noted that they are Town Road though and have always been.
Mrs. Sendalbach’s rebuttal to that is that if her road is a liability—Schroon Hill Road is a substandard right-of-way as well where trees fall constantly, it has a less of a width of a right-of-way than Indian Road and there’s a thousand times more traffic.
Chairperson Knudsen noted that they weren’t here to discuss the road, they were here to discuss her situation. At this point she was here to request an appeal on the denial of Mr. Davis, Code Enforcement Officer’s determination to deny her request based on the 2004 Denial from the PB. She filed an appeal to that. What the ZBA needs to do is check with the Town Attorney to see if the statute of limitations has been exceeded.
Mrs. Sendalbach stated once again that she would have appealed it if anyone would have notified her that she could.
Chairperson Knudsen stated that it isn’t the Town’s obligation to notify her. It is the applicant’s obligation to know the rules and the law. Whether she was told or not, is not this Board’s situation. The ZBA has to look at her request for an appeal which she is requesting now. She is requesting an appeal because Mr. Davis, CEO denied her request based on a 2004 PB Denial. That’s the only thing they can hear.
Mrs. Sendalbach noted that she spoke with Mr. Davis to clarify this.
Mrs. Knudsen also has spoken to Mr. Davis and she has spoken to Mr. Fornal. What Mrs. Sendalbach is at this meeting for is an appeal for the fact that Mr. Davis Mr. Davis, CEO denied her request based on a 2004 PB Denial. That’s something the Board can hear. Based upon the untimeliness of this, she wasn’t sure if the Board
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PRELIMINARY DISCUSSION
ROSALIE SENDALBACH (cont’d)– Appeal of CEO determination in letter dated May 11, 2007
could entertain this appeal. She wanted to contact the Town Attorney and see if based upon the 2004 denial, if it was an appeal they could hear or not. If it’s an appeal that they can hear, they would schedule it for the July meeting. If its not they will give her a letter from the Town Attorney stating the reasons. At that time she can then go to Supreme Court. That is her remedy. The Board would be in touch within the next week or so.
PRE-APPLICATION PRESENTATION
RUSSEL SCHWALL– 28’ Area Variance, 109 Stillerberg Strada, Kerhonkson, Tax Map# 67-3-3, ‘A’ Zone
Mr. Schwall was present on behalf of his application. He explained that he lives on Stillerberg Strada in the Quiet Mountain Estates Subdivision. He was requesting a 28’ area variance to construct his garage. Although he has 8 acres, it is very steep.
The Secretary brought the original subdivision map which showed the topography that confirmed its steep slope.
Mr. Schwall wanted to put the garage beside the house as it was the most logical location. Due to the locations of the well and septic and the steep grade of the property, the only place to put the garage was where Mr. Schwall was requesting or in front of his house.
Chairperson Knudsen noted that it was illegal to put the garage in the front of the house, so that too was not an option.
Mr. Schwall brought photos to display his hardship. He also brought a letter from his most immediate bounding owner that would be affected, Matthew Koehler stating that he had no objection to this location.
The Chairperson recited that balancing test the ZBA would need to review to determine if they could grant this variance. She advised the applicant of his next steps of having to go to the PB for an advisory request and a Public Hearing with the ZBA in July.
PRE-APPLICATION PRESENTATION
SOLLY AVI’-NOM- 17’ Area Variance, 8 Sieber Road, Kerhonkson, Tax Map# 59.7-2-3, ‘A’ Zone
Mr. Lockwood, Architect was present on behalf of Mr. Avi’-Nom’s Application. Mr. Lockwood explained that his client had problems with his house sinking into the ground due to poor construction. In doing this they wanted to expand the master bedroom and kitchen and expand the circulation.
Chairperson Knudsen noted that Mr. Avi-Nom had come before the Board in 2005 for an area variance for the rear of the house and it was quite a lengthy application process. She recalled that there were problems with the road and neighbors.
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PRE-APPLICATION PRESENTATION
SOLLY AVI’-NOM (cont’d)- 17’ Area Variance, 8 Sieber Road, Kerhonkson, Tax Map# 59.7-2-3, ‘A’ Zone
Mr. Hudson and Mrs. Haugen De Puy had driven up to the site back in the winter of 2005 and the road was in such poor shape and it wasn’t plowed after it snowed that they slid off of the road with a 4 wheel drive vehicle.
The Chairperson suggested that Mr. Lockwood review the applicant’s previous file in the ZBA Office. Mr. Avi-Nom had gotten an approval, but he didn’t do any construction.
Mr. Lockwood noted that the other architect that was employed by Mr. Avi-Nom at that time didn’t give a very good layout. This way being applied for now will be better.
Chairperson Knudsen noted that they would research a possible expiration of Mr. Avi-Nom’s 2005 Area Variance. She noted that many of the members had problems finding or getting to this location to see the site.
Mr. Lockwood noted that it was a pretty isolated area.
The Chairperson noted that there were neighbors that were not very agreeable at the time.
Mrs. Haugen De Puy recalled the poor shape of the road noting that if the ZBA grants the variance, it opens the Town up for liability.
Mr. Lockwood felt that the previous area variance that was granted was much more difficult than the one they are applying for now. He didn’t feel this would be a big impact.
The Board agreed that Mr. Avi-Nom gave a difficult time to the Board in regards to getting a Road Maintenance Agreement.
The Chairperson read from the 2005 decision specifically the “Facts Established at the Public Hearing”:
1. . Mr. Avi-Nom is the applicant and owner of the parcel in question. He authorized his architect, Richard Miller, to act as his representative. Both Mr. Miller and Mr. Avi-Nom were present at the first public hearing.
2. Parcel in question consists of approximately once acre located in the ‘A’ zoning district. Applicant is the owner of two parcels on Sieber Road. One parcel consists of +/-1.365 acres and the other +/-.637 acres. Applicant indicated he has no interest in developing the smaller parcel. The area variance request is on the +/-1.365 acre parcel with the existing 1 story house. The existing house has been partially erected on stilts. Applicant considered some of the suggestions made by the Town of Rochester Zoning Board and changes were made to the original application.
3. Applicant is requesting to erect an addition to his house. He stated the existing dwelling is 25’ from the road and the new addition would be no closer to the road than the existing portion of the house. A 25’ area variance is being requested.
4. Mr. Miller testified he had verbal conversations with Mr. Wayne Kelder, Highway Superintendent. He stated Mr. Kelder indicated he did not have jurisdiction of this road as the road is not a Town Road.
5. Mr. Miller testified as to the placement of the existing gas tanks, and well of which both occupy the north side of the house and there are also buried connections. He further indicated that the location of the foundation and basement of the new addition should not be near the well. He testified that there will not be a need to replace the existing roof. He also stated the layout of the room and plumbing for the kitchen and baths to the septic is such that the proposed addition allows for the plumbing pitch to the septic.
6. Mr. Miller further testified that this land slopes and combined with the terrain of this property, excavation would be excessive and costly. Photos of the property were displayed for the Board to view.
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PRE-APPLICATION PRESENTATION
SOLLY AVI’-NOM (cont’d)- 17’ Area Variance, 8 Sieber Road, Kerhonkson, Tax Map# 59.7-2-3, ‘A’ Zone
7. Concerns were raised by Members of the Town of Rochester Zoning Board of Appeals regarding the condition of this private road. ZBA Members made at least two unsuccessful trips to this road and were denied access due to the conditions.
8. Ms. Betty Greenwald, 66 Sawkill Road, Kingston, testified that she was the realtor when the house was sold and there was a full septic and engineer’s report.
9. Mr. Edward Hodel, 15 Sieber Road, Kerhonkson, NY testified stating he was the third resident on this private road and that he has resided on the road for the past two years. He stated he felt this addition will create an undesirable change in the area and felt that this property could no longer be secluded. He indicated that once he felt there is not enough tree coverage and he could see the applicant’s existing deck. When asked if he were interested in a road maintenance agreement, he stated “no”.
10. A favorable advisory dated May 25, 2005 was received from the Planning Board.
She noted that Mr. Avi-Nom isn’t in compliance with his initial Area Variance. She then explained the criteria by which the Board reviews area variances. She noted that they would need to attend the June 19, 2007 Planning Board Meeting for an Advisory Request and back in front of the ZBA for a July Public Hearing.
Mr. Hudson recalled that Mr. Avi-Nom was hard to get a hold of and very demanding.
Mrs. Kawalchuk motioned to adjourn seconded by Mr. Kingston. No discussion. All members in favor.
As there was no further business to discuss, Chairperson Knudsen adjourned the meeting at 7:50 PM.
Respectfully submitted,
Rebecca Paddock Stange, Secretary