Minutes of August 12, 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
James Kingston Beatrice Haugen-De Puy, Vice Chair
Elizabeth Kawalchuk
Marijane Knudsen
Pledge to the Flag.
ACTION ON MINUTES
Mrs. Haugen De Puy, Vice Chair, motioned to accept the May 13, 2008 and June 24, 2008 minutes. Seconded by Mr. Kingston, Board Member. No discussion.
Vote:
McKenzie, Alt. – Absent Kawalchuk – Yes
Drabkin, Chairman – Yes Knudsen – Yes
Haugen De Puy, VC – Yes Kingston – Yes
PRE-APPLICATION PRESENTATION
DAVID FESTBERG– Area Variance for Density Control Schedule to separate 1.14 acres into two parcels, 5907 Route 44/55, Tax Map # 76.3-2-34, ‘B’ District
The applicant was not in attendance at the meeting.
Chairman Drabkin noted that he spoke with the applicant on the phone and he indicated that he may not be pursuing the variance.
PRE-APPLICATION PRESENTATION
JEROME YERKES, C/O JOHN DAWSON- Area Variance for front yard setback for solar building, 49 Baker Road, Tax Map #67-1-11, ‘A’ District
Mr. Dawson was present on behalf of the application.
Chairman Drabkin noted that he went to the site and took photos of the solar building.
Mrs. Haugen De Puy, Vice Chair, noted that she’d look at the photos, but she’d also take a drive and visit the site.
Mr. Dawson explained that he is working with Mr. Yerkes on this project and there has been some miscommunication. Mr. Dawson noted that Mr. Yerkes wanted to put solar heat in his house and Mr. Dawson was helping him do this. He has gotten tax exemptions and was waiting on some grants. Mr. Yerkes jumped the gun by starting already. Mr. Dawson used the Solar Path Finder that takes in account of the property features and trees and house location along with the path of the sun over the property and he sited where the solar panels needed to go. Mr. Yerkes wasn’t aware he had to file a building permit; he thought it went along with all the other exemptions solar buildings are granted, so Mr. Yerkes began building the structure without any permits. Mr. Dawson found out and filed for the permits, only to find that the structure is too close to the property line by 15 feet. He has since obtained letters from all of the neighbors saying that they have no objections. Mr. Yerkes has spent $18,000 in solar tubes for the project. Mr. Dawson continued that this was an honest mistake. He does a lot of work in this town and is also a licensed building inspector and would never build anything without the proper permits.
Mrs. Haugen De Puy, Vice Chair, wanted to know if the property line goes to the center of the road.
Mr. Dawson wasn’t sure how the deed read.
Mrs. Paddock-Stange, Secretary clarified that the Zoning Ordinance reads front yard setbacks from the center of the road.
Mr. Dawson understood this and noted that he is very involved in the town and goes to all the meetings to stay informed.
Mrs. Haugen De Puy, Vice Chair, still wanted to see the deeds.
Mr. Dawson noted that he went to school to learn how to install solar heat and they encourage that the solar structures be used as functional buildings, such as car ports as they are intending to do with this one.
Mrs. Haugen De Puy, Vice Chair, noted that a solar building doesn’t constitute a garage.
Mr. Dawson agreed that it wouldn’t be a garage, but the structure is high enough to park under, so it made sense to utilize the space underneath.
Mrs. Haugen De Puy, Vice Chair, requested the applicant to explain the solar building.
Mr. Dawson described the solar path finder and how it is used to site the exact location that the solar panels need to be constructed. It takes into consideration the sun and the trees and seasonal angles. It is quite a precise tool. The solar building has a steep pitch and a long back like a bill board and it’s long.
Mrs. Haugen De Puy, Vice Chair, questioned what the tubes were constructed out of?
Mr. Dawson noted that they were made out of glass and they need an off stance. When he went to school they were promoting utilizing the functional space that was created by the structure itself. That is what he recommended to Mr. Yerkes and now he parks under it. It’s a pole type building.
Chairman Drabkin noted that he had pictures on his computer that he brought to this meeting and he displayed them for the Board.
Mrs. Haugen De Puy, Vice Chair, questioned the snow load of the structure?
Mr. Dawson noted that it met code. The same for wind.
Mrs. Knudsen, Board member questioned if the solar part of it was constructed. Was this something that could be moved in order to meet the setback?
Mr. Dawson noted that this is not something that can be moved or go somewhere else because of the path of the sun and location of the trees and house. If they moved it forward the house would be in the way. He noted that he could lop off the corner of it to meet the setbacks. It would look stupid, but it would work.
Mrs. Haugen De Puy, Vice Chair, and Mrs. Knudsen, Board member thought that this sounded reasonable.
Mrs. Haugen De Puy, Vice Chair questioned if there were any other locations on the property that would meet the criteria for the solar use?
Mr. Dawson noted that it is actually a NY STATE Law that neighbors have to cut down any trees that may be obstructing the solar rays. Behind Mr. Yerkes are a hunt club and a lot of trees. It isn’t a matter of cutting one tree; it’s a matter of cutting a whole bunch.
Mrs. Kawalchuk, Board Member questioned if he could put it on the other side of the house?
Mr. Dawson noted that it wouldn’t get enough sun. He has a letter from the president of the hunting club that the current location and structure of the solar building is not a problem to them.
Mrs. Haugen De Puy, Vice Chair, questioned if Mr. Yerkes would have to cut his own trees down if he put it on the other side of the house?
Mr. Dawson noted that it would be the neighbor’s trees that would be blocking the sun and have to be cut down.
Mr. Kingston, Board Member questioned if there was anyway to cut the building down to size?
Mr. Dawson noted that it could, but the building would look silly.
Chairman Drabkin noted that the solar panels are within the setback, but the portion of the car port is the problem that is over the setback distance. He continued that Mr. Yerkes already has a garage on the property, and if he doesn’t need it, and only really needs the panels, then the structure should be modified to do so that it meets the setbacks. If he did this, one side could still be used as a car port and the other side can be used for storage. Technically a garage shouldn’t be in the front yard at all.
Mr. Dawson noted that it was never intended to be a garage or a car port. It was built this way for structural integrity and it just happens to work as a car port.
Mrs. Knudsen, Board member noted that the applicant should have known or at least checked into if it needed permits from the Town. To go for an Area Variance is to ask the Board to alter the law to the least degree. Mr. Dawson noted that he could lop off a corner and make it conform to the setback, and then there would be no need for a variance. She wasn’t speaking for the whole Board, but there are criteria that the Board needs to follow when granting a variance. She then read the following into the record:
The self-created hardship standard provides that an owner cannot use his own ignorance or actions (or that of the prior owner) as a justification for the granting of a variance.
Variance requests based upon self created hardships are quite common. . Property owners who make unwise or poorly planned development decisions may later find that a variance is necessary either to properly complete the project or to accom-modate some desired change in construc-tion. in some circumstances, owners either unknowingly or intentionally construct buildings or engage in uses that violate the zoning regulations, only to later argue that the variance is necessary to prevent the expense and waste associated with the destruction of the building or cessation of the use.
Denying variance applications that are based on self-created hardships is a sound practice. To grant such a variance would excuse or reward an owner’s lack of reason-able diligence. Not surprisingly, owners in communities that routinely grant such variances quickly learn to ask for forgive-ness after the fact.
Mr. Dawson noted that this was just an oversight. Mr. Yerkes assumed that Mr. Dawson was taking care of it and vice versa.
Mr. Drabkin noted that even if that were the case, the least Mr. Yerkes could have done was call the Building Dept. the day before to make sure he didn’t need anything, or if he did, that Mr. Dawson had already taken care of it.
Mrs. Haugen De Puy, Vice Chair, noted that Mrs. Knudsen already touched on some of the points, but she read the criteria for granting a variance to the applicant:
Balancing test –
Board of Appeals shall balance benefit to applicant with detriment to health, safety & welfare of the community.
Board of Appeals shall also consider:
· whether benefit can be achieved by other means feasible to applicant;
· undesirable change in neighborhood character or to nearby properties;
· whether request is substantial;
· whether request will have adverse physical or environmental effects;
· whether alleged difficulty is self-created;
If approved, the minimum variance shall be granted.
Mrs. Haugen De Puy, Vice Chair, continued, noting that she agreed with Mrs. Knudsen that if Mr. Dawson has indicated another method-in this case “lopping” off a corner to meet the required set back, then that should be done. She questioned if some if this money spent on the project was reimbursable through the grant?
Mr. Dawson was hoping that it was. He noted that in the code as far as the health, safety and welfare of neighborhood, most of the houses up there already encroach on the road and this isn’t even noticeable.
Mrs. Haugen De Puy, Vice Chair, stressed the fact that Mr. Dawson stated himself that this can be achieved by other means.
Chairman Drabkin stated that this was a completely self created hardship.
Mrs. Haugen De Puy, Vice Chair, noted that the Board couldn’t stop Mr. Dawson from putting the application in and moving forward with it…
Mr. Dawson noted that he would hate to have to lop off part of the building, but what Mrs. Knudsen read about self created hardships was pretty cut and dry.
Mrs. Haugen De Puy, Vice Chair, agreed noting that it was self created and can be achieved by other means.
Mr. Dawson hated to have to cut the building up. Was there another process he could go through?
Chairman Drabkin informed him that he could go through the application process and should he be denied for the variance he could file an Article 78 and appeal it.
Mr. Dawson was reminded of the Self Created Hardship information read by Mrs. Knudsen and noted that he would lop one side of the structure off.
Mrs. Haugen De Puy, Vice Chair, motioned to adjourn seconded by Chairman Drabkin. No discussion. All members in favor.
As there was no further business to discuss, Chairman Drabkin adjourned the meeting at 7:35 PM.
Respectfully submitted,
Rebecca Paddock Stange, Secretary