Zoning Board of Appeals Minutes 03/11/08

Minutes of March 11, 2008 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 Chairman, Brian Drabkin.


Present:                                                Absent:
        Brian Drabkin, Chairman                         Jennifer McKenzie, Alternate- not required to participate       
        James Kingston
        Marijane Knudsen
        Elizabeth Kawalchuk                                                             
        Beatrice Haugen-De Puy, Vice Chair


Pledge to the Flag.


Mrs. Haugen- De Puy, Vice Chair,  motioned to approve the minutes of the September 11, 2007 meeting. Seconded by Mr. Kingston. No discussion.
Vote:   McKenzie, Alt.  –       Not required to participate             Kawalchuk       –       Yes
        Drabkin, Chairman       –       Abstain                         Knudsen –       Yes     
        Haugen De Puy, VC-      Yes                                     Kingston        –          Yes


STEVEN VANDEMARK-   Area Variance for illegal lot created with a 16’ right-of-way,
Baker Town Road, Tax Map #68.4-3-29.112, R-1 District


Mr. Van Demark was present and explained that he understood that this was an illegal lot. His mother owned it and she passed away and left it to him. He wasn’t aware that this was an illegal lot and had his mother known it was an illegally created lot, she wouldn’t have done it. He doesn’t have much other access into the property. Its 1.2 acres. He’d like to sell it or do something with it. It sits idle now. He can’t buy anymore right-of-way. The people that now own the adjoining parcel are not happy that they have a 16’ right-of-way over their parcel. If he were to go through his property, which is also adjoining this parcel in question, it would be about 800’ up a hill and would have to go between his house and his garage. He then displayed a picture of his property to show his hardship.


Mr. Kingston, Board Member, questioned when this parcel was created.


Mr. Van Demark wasn’t entirely sure. He thought the paper work that he submitted to the Board said 1994. This was done by a surveyor and put together by an attorney. His mother certainly wasn’t trying to do anything illegal.


Chairman Drabkin noted that he was new to the Board, but he had the same question regarding another application that the Board was dealing with. From his understanding the ZBA can only deal with matters that come under the Zoning Code. This problem—and this Board has dealt with these problems, is under the Subdivision Regulations. In the case of the appeal of Mr. Van Wagenen that the Board is dealing with, since the Building Dept. denied the application, the ZBA can address it because it is an appeal of the Code Enforcement Officer’s determination, which is one of the types of cases that the ZBA hears. This area variance is a request to vary the Subdivision Regulations. He wasn’t sure how this should be handled and he asked for other Members’ input on this situation.


Mrs. Haugen De Puy, Vice Chair, questioned how many times it had been divided?


Mr. Van Demark stated that to his knowledge it was only divided once.


Chairman Drabkin just wanted to get clarification from the Town Attorney that this is something that could be addressed or could not.


Mrs. Haugen De Puy, Vice Chair,  motioned for a letter to be sent to Mary Lou Christiana, Esq., the Town Attorney for clarification this issue with this right-of-way and if it is applicable to the ZBA. Seconded by Mrs. Kawalchuk, Board Member. No Discussion.
Vote:   McKenzie, Alt.  –       Not required to participate             Kawalchuk       –       Yes
        Drabkin, Chairman       –       Yes                                     Knudsen –       Yes     
        Haugen De Puy, VC-      Yes                                     Kingston        –          Yes


When the Board received the answer from the Town Attorney, Chairman Drabkin instructed the Secretary, Mrs. Paddock Stange, to contact the applicant and let him know what his recourse was.
JON VAN WAGENEN–        c/o Dennis Van Wagenen, Cliff Road, 68.2-2-12,
discussion on appeal of CEO Denial for building permit based on Highway Superintendent Determination, ‘A’ District


Dennis Van Wagenen was present on behalf of his son, Jon Van Wagenen for his continued Public Hearing. Mr. Van Wagenen noted that his son was out of Town and wasn’t able to attend the meeting. He was asked to do a survey of the property owners of Cliff Road along the part that is not Town Maintained. He sent out 19 surveys and gave a range of what the cost would be for bringing the road up to Town of Rochester standards. He had a bracket where it would fall into the range of $150,000 to $250,000 assuming that it would be a special tax district and that the tax levy would be assessed to the property owner based on their assessment. The term of the bond would be 20 years at 5%. So, he set up 2 schedules. One of the $150,000 and one for the $250,000. In each letter he gave a bracket of what their share would be. He also asked for other comments or suggestions. There are 20 parcels and he sent out 19 survey forms, he had one of them sent back because it could not be delivered. The response was not as good as he would have liked it to be. He got 7 survey forms back. 3 were in favor of the special tax district and 4 were against it. If you weigh that based on their assessment, the in favor accounted for $38,3000 worth of assessment. The ones opposed was $896,000 of assessment. Basically the property owners that own land are in favor of it and the property owners who have homes are against it. Most of them were concerned with the added taxes and one of them wanted to keep it a private road. He would have liked to have gotten a response from everyone, but that didn’t happen. A few interesting things though when putting this together and he noticed that there is 2.6 million dollars worth of assessed valuation serviced by that non- Town private road, which was much more than he thought. That’s a lot of value and they are paying taxes and a good bulk of the Town tax is highway tax. He really felt that they were getting short changed from the


JON VAN WAGENEN(cont’d)–        c/o Dennis Van Wagenen, Cliff Road, 68.2-2-12,
discussion on appeal of CEO Denial for building permit based on Highway Superintendent determination, ‘A’ District


services that they are receiving. That’s just an observation. The other thing was that if the road was improved and maintained by the Town, it would definitely increase the value of the property there. And the other thing was that he was looking into the 280-a Town Law and he thought that this law also effects everyone of those property owners who already have houses because his interpretation of it is that there will be no building permits issued, and that means if they wanted to put a swimming pool in, or a garage up they wouldn’t’ be able to—anything where a building permit would be necessary. This was his interpretation.


Mr. Kingston, Board Member, noted that he took a ride up there before the February meeting that had gotten cancelled due to inclement weather. He took photos of the road and of Mr. Van Wagenen’s son’s driveaway. He noted that the road was wide open. It was basically a one lane road that went up a hill. He supposed with a little bit of agility that 2 cars could pass each other on that road. It was plowed out and he had a 2 wheel drive pick up truck. He didn’t think that after reviewing the circumstances of the road that an emergency vehicle would have that difficult of a time. He didn’t think this was the only issue at hand here. Mr. Van Wagenen pointed out through this survey that there were a lot of parcels up there in that subdivision and many of them aren’t even encroaching on this road. He believed that this Board does not have the purview in this case. He stated that this should be referred back to the Town Board and the Planning Board to determine what the Town was going to do about this subdivision. There are a lot of properties that don’t even come close to accessing this private road. He just didn’t see where the ZBA should set a precedent on this matter. It should be refereed back to a legislative branch for that consideration.


Mrs. Kawalchuk, Board Member and Chairman Drabkin agreed with what Mr. Kingston, Board Member had to say.


At this time Chairman Drabkin opened the hearing to the public.


Recognized to speak was Martha Roberge of 39 Cliff Road. Mrs. Roberge requested that this matter be referred  to the Town Board. With a letter to the ZBA of this date, she outlined the following points:
1. Suggestion from the ZBA to form a special tax district  is good and useful, obvious suggestion and would work in  many circumstance. It will not work on Cliff Road unless we have help from the Town.


2. History of Road
Cliff Road is an old Town Road, dating back to the 1800’s, with passage through to Rose Hill and to Bone Hollow Road in Marbletown. This information is found on 1879, 1904 maps from the Stone Ridge Library.
The road has been used as recently as 1950’s to get to the quarries and was plowed by Town in 1940’s~ 1950’s. Current residents began buying land in the 1960’s from several different chains of title and they are not a subdivision. Full timers own as little as 5 acres; vacant parcels are as large as 35 acres. Of approx. 20 parcels 8 parcels are full time homes, 4 are weekenders, and 8 are vacant land. Road frontage varies from 50 feet to 1200 feet
(full time residents own just 24% of road frontage-vacant land accounts for approx 47%)
All deeds refer to right of  way to the public for use of the road; and many of the deeds specifically refer to time when the Town; takes over the road and we must dedicate 50 feet. In the 1970’s they were  told when 4 full time


JON VAN WAGENEN(cont’d)–        c/o Dennis Van Wagenen, Cliff Road, 68.2-2-12,
discussion on appeal of CEO Denial for building permit based on Highway Superintendent determination, ‘A’ District


residences, the Town would plow. Not ti1 1980’s that they had  more than 4 families and nothing was done. Road maintenance agreements are voluntary ,and unenforceable, and ineffective.
3. Petitions to Town under Section- 200 Town Law 1997-99
 At this time Estimates to upgrade road were $75,000.00-$100,090.00 to be paid over 15 years
Petitions, from 80% of  full time residents, but only 45% total, road frontage (with some- weekenders/vacant land owners joining)
The Town refused to act because we did not meet 50% road frontage requirement statute
4. 2008 there was a similar scenario
– 24% road frontage owned 8 full time families ,
 – 76% road frontage is vacant land or weekend residence
– To this day the Road remains in poor quality and only 4-5 families ever work on it.
A major concern is that emergency vehicles may have trouble reaching us in snow and ice
5. I£ Town Law Section 200 cannot be met, then we need to brainstorm with the Town:
There are other ways to take over a road
“Rural low volume roads” standards Should apply
repayment by assessed valuation
Next to speak was Joe Pissani who was also a land owner on Cliff Road. He was in support of the application and felt that the ZBA should make a recommendation to the Town Board to address this issue.


Chairman Drabkin noted that the Planning Board makes recommendations to the Town Board regarding Open Development. The ZBA was solely looking into this matter in regards to the appeal by the applicant on the determination of the Code Enforcement Officer. The ZBA deals solely with Zoning and this is something that is not within the Zoning Code.


Mr. Pissani felt that proceedings should commence and somewhere in the law there has to be a cause for the Town to take the road over due to this unique situation. He wanted to the Town to know that sooner or later there would be a law suit regarding this issue and he felt it would be within the Town’s best interest to solve this problem.


Pete Disantis was recognized to speak. Mr. Disantis is a resident of Cliff Road as well. He plows the upper portion of Cliff Road, while another resident of Cliff Road, Mr. Striano, plows the lower section. He has nothing against people building on their property, but he was concerned with the safety surrounding the poor condition of the road. It is dangerous—he has had to jump out of the road many times when he is working on it because people don’t realize the narrowness of the road and drive to fast. There are some places for cars to pass, but only in certain spots. When road is covered in snow and ice it is hazardous and a big safety concern.
JON VAN WAGENEN(cont’d)–        c/o Dennis Van Wagenen, Cliff Road, 68.2-2-12,
discussion on appeal of CEO Denial for building permit based on Highway Superintendent determination, ‘A’ District


Chairman Drabkin traveled up the road with the Highway Superintendent, Wayne Kelder, and agrees that the road is not safe.


Stanley Hudson of the Accord-Kerhonkson Ambulance squad was next to speak. Mr. Hudson noted that there have been 3 emergency vehicle trips up that road since October of 2007. One time the weather was good. One time they went up in January and it was raining and there was no way they could get all the way up that road where the applicant lives. They just paid $170,000 for new equipment and with the way that road condition is now, they would not be taking their emergency vehicle up that road because it wouldn’t make it. They are low to the ground. He has nothing against the building, but that road needs to be improved.


Mrs. Haugen De Puy, Vice Chair,  motioned to close the Public Hearing. Seconded by Mr. Kingston, Board  Member. No discussion.
Vote:   McKenzie, Alt.  –       Not required to participate             Kawalchuk       –       Yes
        Drabkin, Chairman       –       Yes                                     Knudsen –       Yes     
        Haugen De Puy, VC-      Yes                                     Kingston        –          Yes


At this time Chairman Drabkin read the following correspondence dated February 11, 2008 from the Town Attorney, Mary Lou Christiana, Esq., into the record:


RE:  Van Wagenen Appeal


Dear Chairman Drabkin and Board Members:


I have reviewed the file in the above referenced matter.  It is my understanding that the applicant was denied a building permit to erect a one family structure on a parcel of property accessed via a private road, known as Cliff Road.  Currently there are several houses located on the roadway.


NYS Town Law section 280-a provides that building permits shall not be issued unless a parcel has access on a public street or a roadway or on roadway as shown on an approved subdivision plat.  Access is defined by that statute as lot frontage, directly on the roadway, of 15 feet or more.  Towns can provide that more than 15 feet of direct frontage is required.


Alternatively, the Town Board may, by resolution, establish an open development area where building permits may be issued for erection of structures to which access is given by right of way or easement.


The applicant has appealed the denial to the Zoning Board of Appeals.


Case law holds that the ZBA lacks authority to grant the owner of land locked property an exception from the State statute prohibiting issuance of a building permit unless the plot which is to be built upon directly abuts upon a public street or highway and has sufficient frontage to allow for the ingress and egress of emergency vehicles.  Indelicato v. Town of Lloyd  34 AD3d 1056 (3rd Dept., 2006).


JON VAN WAGENEN(cont’d)–        c/o Dennis Van Wagenen, Cliff Road, 68.2-2-12,
discussion on appeal of CEO Denial for building permit based on Highway Superintendent determination, ‘A’ District


In this case it appears that the applicant has a right of way to his property but has no direct access to the property, and has not received open development status from the Town Board.  The ZBA does not have the authority to grant the applicant an exception to the state statute.  In order to obtain a building permit, the applicant will need to obtain open development status from the Town Board.  It is my understanding that the applicant had applied for open development, but same was not granted by the Town Board.


Given all of the above, it is my legal opinion that, it would be improper for the ZBA to grant the applicant’s appeal.  


                                                                Very truly yours,
                                                                Mary Lou P. Christiana


Chairman Drabkin stated that this is the direction the Board should go. The Board has to make a decision whether they want to uphold the Code Enforcement Officer’s decision to deny this permit.


Mr. Kingston, Board Member, stated that based on Town Law 280-a, the Board had no recourse but to support the Code Enforcement Officer. But, he wanted to go on to say that the points brought up in the Public Hearing that these parcels on this road demand that this problem be faced by the Town.


Chairman Drabkin hoped that the people on the road get together and approach the Town.


Mr. Kingston, Board Member, felt that the ZBA should throw there weight behind this to have the Town Board to address this issue, because as he looks at the information presented, there are a lot of people who are going to be having a hard time in the future.


Chairman Drabkin didn’t think that they could do that as a Board, but they could certainly do it as individuals. That if there is a consensus among the Board that when the time comes and after the Planning Board has reviewed it and sent it to the Town Board—there is no reason they couldn’t send a letter.


Mrs. Kawalchuk, Board Member stated that it was obvious that these people were living in jeopardy and that’s no way to live.


Mrs. Haugen De Puy, Vice Chair,  stated that as a Board of the Town, it was the ZBA’s obligation to bring it to the Town Board’s to say that it is a possibility of problems in the future.


Chairman Drabkin stated that the citizens that were here who wanted to improve the road had their work cut out of them. They’ve tried before and weren’t able to do it, but hopefully they could succeed this time. In the mean time the ZBA needed to make a decision.


Mrs. Kawalchuk, Board Member didn’t think the ZBA could render a decision. She thought it was up to the Town Board to do something here.


Chairman Drabkin noted that they had to render a decision regarding the Code Enforcement Officer’s denial of the permit application by Jon Van Wagenen. He read what the Town Attorney said. Unless there was some basis to approve this that he wasn’t aware of, the ZBA had no choice but to deny it.


Mr. Kingston, Board Member, agreed.


Mrs. Kawalchuk, Board Member, agreed and noted that they would have to abide by the direction of the Town Attorney.


Mr. Kingston, Board Member, motioned to deny the variance on this property based on Town Law 280-a.
Chairman Drabkin seconded the motion, affirming the Code Enforcement Officer’s decision to deny the application.
Mrs. Haugen De Puy, Vice Chair,  still wanted the ZBA to direct a letter to the Town Board to try and help these people.


Mr. Kingston, Board Member, agreed. They had to have something to look at to help them.


Mrs. Haugen De Puy, Vice Chair,  stated that this was a case that they could use to further their efforts.


Chairman Drabkin questioned who would draft that letter?


Mrs. Haugen De Puy, Vice Chair,  stated that it would be Chairman Drabkin.


Chairman Drabkin noted that he would draft it and circulate it among the Board and when they came up with a consensus that this was the letter they all agreed on, they would forward it to the Town Board.


Mrs. Haugen De Puy, Vice Chair,  wanted to add that as a condition of the denial.


Chairman Drabkin noted that it could not be made a condition of the denial because one had nothing to do with the other. One is the Code Enforcement Officer’s decision to deny a permit and the other is something that they all agree with is that the road needs some help and the people who live on that road have to get together and organize what has to be done.


Mrs. Paddock Stange, Secretary, noted that the Board had yet to vote on the motion that was on the table.


Ms. Knudsen, Board Member, requested for the motion to be re-read.


Mrs. Paddock Stange, Secretary, read her notes that Mr. Kingston motioned to deny the variance based on 280-a and Mr. Drabkin motioned to second the motion affirming the Code Enforcement Officer’s denial of the Zoning Permit Application.


Ms. Knudsen questioned how the ZBA could be denying based on Town Law 280-a, when all the ZBA was supposed to be doing was deciding whether or not the Building Inspector was correct in his decision.


Ms. Knudsen motioned to amend the decision to exclude the reason of Town Law 280-a for a basis of the ZBA’s denial. She further stated in her motion that the ZBA deny this appeal request affirming the decision of the Code Enforcement Officer. Seconded by Mrs. Haugen De Puy, Vice Chair.
Mrs. Knudsen, Board Member, also agreed that a letter should be written to the Town Board under a separate motion expressing the fact that various ZBA minutes stated that the Town did not enforce Open Development regulations 280-a for years and that they just started enforcing it in the 1990’s—so there is some arbitrary and capricious stuff on the Cliff Road matter and that they really need to as a Board, using the ZBA as a recommendation, do something.
        McKenzie, Alt.  –       Not required to participate             Kawalchuk       –       Yes
        Drabkin, Chairman       –       Yes                                     Knudsen –       Yes     
        Haugen De Puy, VC-      Yes                                     Kingston        –          Yes


Ms. Knudsen, Board Member motioned to forward the above discussed letter to the Town Board, Planning Board, and the Highway Superintendent. Seconded by Mrs. Haugen De Puy, Vice Chair.
        McKenzie, Alt.  –       Not required to participate             Kawalchuk       –       Yes
        Drabkin, Chairman       –       Yes                                     Knudsen –       Yes     
        Haugen De Puy, VC-      Yes                                     Kingston        –          Yes


Mrs. Kawalchuk, Board Member, motioned to adjourn seconded by Mrs. Haugen De Puy, Vice Chair. No discussion. All members in favor.


As there was no further business to discuss, Chairman Drabkin adjourned the meeting at 7:45 PM. 


                                                                Respectfully submitted,


                                                                Rebecca Paddock Stange, Secretary