Minutes of May 12, 2009 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
Beatrice Haugen-De Puy, Vice Chair
James Kingston
Elizabeth Kawalchuk
Marijane Knudsen
Jennifer McKenzie, Alternate
Pledge to the Flag.
ACTION ON MINUTES
Board Member, Mr. Kingston, motioned to accept the April 14, 2009 minutes. Seconded by Mrs. Haugen-De Puy, Vice Chair. All members present, in favor.
PUBLIC HEARING
FABIO CHIZZOLA & LAURA FERRARA – 2’ Area Variance for fence height in rear yard, 215 Lower Whitfield Road, Tax Map # 68.4-5-12.1 & 12.11, R-2 District
Mr. Chizzola was present on behalf of his application. He explained that he operated an apple orchard known as Westwind Orchards at 215 Lower Whitfield Road. At the rear of his orchard the property abuts a residential neighborhood on Barry Lane and there are a lot of houses. His business is that of U-Pick and its organic and people come from all over and want a rural feeling and seeing those houses in the rear of his orchard doesn’t do that and this is why he is requesting 346’ of 8’ high fencing to block that view and separate the parcels. He presented pictures of the orchard and noted that he had purchased the property in 2002 and has taken care of the trees and got it to a point where they could open as U-Pick last year. There are +/- 400 trees that are 30-50 years old. In clearing the property and maintaining the orchard he removed a lot of brush and this opened up the view to Barry Lane where there are a lot of houses and garbage gets dumped on his property. He submitted pictures of the debris he was referring to, which included things like tires that were dumped on his property. As the premise of his business is very natural, he’d like to further that by putting up the fence to block the view of the houses and keep it a more rural setting. Mr. Chizzola presented letters of support from neighbors as well. This wasn’t for privacy, to block themselves off—it was to protect his business.
Chairman Drabkin noted for the record that the current law allows for 4’ high fences in the front yard and 6’ in the sides and rear yards. It is his understanding that the Code Task Force that is proposing revised Zoning Codes to the Town Board has suggested keeping the 4’ height in the front yard, but allowing for 8’ fencing in the sides and rear yards.
After viewing the photos of debris Board Member Knudsen suggested that Mr. Chizzola also bring the pictures PUBLIC HEARING
FABIO CHIZZOLA & LAURA FERRARA(cont’d) – 2’ Area Variance for fence height in rear yard, 215 Lower Whitfield Road, Tax Map # 68.4-5-12.1 & 2.11, R-2 District
to the Code Enforcement Office as the garbage was substantial. She continued to note that she and Board Member Kawalchuk visited the property on the night before this meeting, 5/11/09. Board Member Knudsen wanted to express that she was impressed with what Mr. Chizzola has done and she hadn’t realized that it was even there. She thought it was a great thing for the Town. She went to Barry Lane also and confirmed that there was a substantial amount of garbage and debris as shown by the pictures taken by the applicant.
At 7:05PM Chairman Drabkin opened the hearing to the public.
Keith Helmich was recognized to speak. He owned bounding property and wasn’t sure where this fence was proposed to go. He viewed the map and had no problems with the proposed location of the fence. He understood the situation and had no problems.
Vice Chairperson Haugen De Puy motioned to close the Public Hearing at 7:08PM. Seconded by Mrs. Kawalchuk, Board Member. All members present in favor.
Vice Chairperson Haugen- De Puy motioned for the Town of Rochester ZBA to be Lead Agency and that this action be Typed as Unlisted under SEQRA with a Negative Declaration as there will not be a significant impact to the environment. Motion was seconded by Chairman Drabkin. No discussion.
Vote:
McKenzie, Alt.- not required to participate Kawalchuk – Yes
Drabkin, Chairman – Yes Knudsen – Yes
Haugen De Puy, VC- Yes Kingston – Yes
Board member Kawalchuk stated that she had also visited the property and didn’t blame the applicant for protecting his land and bringing something good to the community.
PUBLIC HEARING
FABIO CHIZZOLA & LAURA FERRARA(cont’d) – 2’ Area Variance for fence height in rear yard, 215 Lower Whitfield Road, Tax Map # 68.4-5-12.1 & 2.11, R-2 District
Vice Chairperson Haugen De Puy motioned to grant the 2’ Area Variance requested to construct an 8’ fence at 215 Lower Whitfield Road at 364’ of length with the following conditions:
1. The fence shall be set in such a way that weather doesn’t wear on it.
2. The fence shall be maintained and if broken, it shall be replaced.
Discussion:
Board Member Knudsen read the balancing test for an Area Variance being:
In order to grant a variance, the ZBA must consider if the applicant’s benefit to the detriment to health, safety and welfare of the community is substantial.~ The ZBA must consider:
· whether the applicant can achieve this request by other means;~~
· whether the application will cause an undesirable change in the neighborhood character or nearby properties;
· whether the request is substantial;
· whether the situation is self created;
· whether the request will have an adverse impact on the environment.
She agreed that the applicant met the criteria for the requested variance and she requested two additional conditions be added to the decision:
· The fence shall be no more than 8’ in height from the ground.
· The fence shall be set no closer than 24” off of the property line for purposes of
maintenance.
Vice Chairperson Haugen- De Puy amended her motion to read as follows:
to grant the 2’ Area Variance requested to construct an 8’ fence at 215 Lower Whitfield Road at 364’ of length with the following conditions:
1. The fence shall be set in such a way that weather doesn’t wear on it.
2. The fence shall be maintained and if broken, it shall be replaced.
3. The fence shall be no more than 8’ in height from the ground.
4. The fence shall be set no closer than 24” off of the property line for purposes of maintenance.
Motion seconded by Board Member Kingston.
Vote:
Drabkin- Yes Kawalchuk- Yes
Haugen-De Puy- Yes Knudsen- Yes
Kingston- Yes McKenzie, alt.- Not required to vote
PUBLIC HEARING
THEODORE DEUTERMANN c/o Eric Bean– 2’ Area Variance for fence height, 246 Sammsonville Road, Tax Map # 76.1-2-1.1, R-1 District
Eric Bean and Theodore Deutermann were present on behalf of their application. Mr. Bean explained that he and Mr. Deutermann purchased the property in the fall of 2008 and noted that they waited out the winter to see where the snow removal of Samsonville Road would affect a future fence on their property. They have lived in the area for over 3 years. When they bought the house they knew it was on a busy road and they both work from home. They reside across the street from apartments and noted that in February and November there were arrests made due to drugs and burglaries in the area. They are looking for the area variance because there property slopes down in such a way that the 4’ fence in the front and the 6’ fence in the side would not be effective for privacy, safety, and to block the headlights that shine in their house from road traffic. They also have family and nieces and nephews that visit often and they are concerned regarding their safety as well. Mr. Bean works from home as a photographer and does a lot of work and portraits outside in the yard. Mr. Deutermann also works from home and is an artist and sculptor and in the summer he also works outside. This past winter there were children who lived in the apartments across the street that just came over and used their property to sleigh ride on without permission. That is a concern for liability to them. Mr. Deutermann has allergies and they are hoping that the fence will cut down on the dust from the road traffic as well.
At the last meeting the ZBA suggested that Mr. Bean contact the County Dept of Works. He had done so and contacted Dianne Beitl at the Ulster County Safety Office on April 20th and on this date and she had no issues with the fence. He also spoke to Ed Pine of the Ulster county Dept. of Highways and Bridges on April 20th and as long as it was 25’ from the center of the road, he had no problems with the fence. Mr. Bean also spoke to Kim DuFresne of the Ulster County Dept. of Highways and Bridges on April 21st and he did not have a problem with the fence. Mr. Bean noted that they would be about 30’ back from the centerline of the road. Douglas Dymond is a bounding owner and he signed off and had no problem with the requested variance and Mark Naylon who lives across the street from the applicants didn’t have a problem with it either. Jill Shufeldt wrote a letter in favor of the variance as well and attested to the applicant’s character and maintenance of their home and property and the fact that they own a young Labrador Retriever. Ms. Shufeldt is the dog control officer for the Town of Rochester and felt that the fence is a good extra barrier for the dog’s safety.
Chairman Drabkin and Vice Chairperson Haugen De Puy didn’t feel that having a dog was a valid reason for requesting a variance as the animal isn’t a permanent fixture of the property.
Mr. Deutermann noted that he was out in front of his house this past summer with his dog and he noticed that there were people talking in his yard. They went to his car and opened his car door up. If they had a fence—he felt it would have derailed these people from entering his vehicle. He felt strongly about the need for the variance for safety issues. He reiterated that they were asking for the 8’ instead of 4’ in the front and 6’ on the sides of the property because of the way the property slopes down. They presented pictures to the Board at the previous meeting and this meeting showing this issue.
Vice Chairperson Haugen- De Puy questioned why they took their tree down?
Mr. Bean noted they had to take it down because an arborist told them that it was going to die.
PUBLIC HEARING
THEODORE DEUTERMANN c/o Eric Bean(cont’d)– 2’ Area Variance for fence height, 246 Sammsonville Road, Tax Map # 76.1-2-1.1, R-1 District
Vice Chairperson Haugen- De Puy noted that when they bought the property, Samsonville Road was a busy road. How has anything changed?
Mr. Bean noted that he had lived on Samsonville Road at one point—further up towards Trail’s End and he didn’t realize how much traffic and noise was generated by the nearby gravel pit. He had nothing against the gravel pit, but they didn’t realize how constant the traffic was from it.
Vice Chairperson Haugen- De Puy advised the applicants that they should have taken that into account when they were buying the property. She then read 140-63D.2(b)[1]:
In making its determination, the Zoning Board of Appeals shall take into consideration the benefit to the applicant if the variance is granted, as weighed against the detriment to the health, safety, and welfare of the neighborhood or community by such grant. In making such determination the Board shall also consider:
[1] Whether an undesirable change will be produced in the character of the neighborhood or a detriment to nearby properties will be created by the granting of the area variance;
[2] Whether the benefit sought by the applicant can be achieved by some method, feasible for the applicant to pursue, other than an area variance;
[3] Whether the requested area variance is substantial;
[4] Whether the proposed variance will have an adverse effect or impact on the physical or environmental conditions in the neighborhood or district; and
[5] Whether the alleged difficulty was self-created, which consideration shall be relevant to the decision of the Board of Appeals, but shall not necessarily preclude the granting of the area variance.
Board Member, Knudsen noted that she and Board Member Kawalchuk visited the property last night and with regard to the conditions just read by Vice Chairperson Haugen-De Puy, she didn’t believe that an undesirable change would come to the neighborhood by the request. The applicants were very accommodating and carried boards that represented the height of the proposed fence all around their property to show Mrs. Knudsen and Mrs. Kawalchuk different views and vantage points of how the fence would look. She also noted that there are many plants and trees and bushes that will be kept in front of the fence- between the fence and the road and provide natural screening and break up the view line of the fence. They were there for 30 minutes and didn’t realize before how busy Samsonville Road really is. The applicants could plant trees, but they would grow old before they provided any screening. The slope of their hill in their front yard is an attractive nuisance to kids. She really understood that a 4’ fence in the front yard would do nothing because of that slope.
Vice-Chairperson Haugen-De Puy noted that she has lived on Samsonville Road all of her life and she believes
PUBLIC HEARING
THEODORE DEUTERMANN c/o Eric Bean(cont’d)– 2’ Area Variance for fence height, 246 Sammsonville Road, Tax Map # 76.1-2-1.1, R-1 District
that this fence would change the character of the neighborhood because maybe everyone on this road would want a fence. No kids have died on this road, to her knowledge and yes, she’s lost a dog on this road from her own stupidity—but as far as a safety issue and the road being unsafe and needing the fence for that reason—its something the applicants need to live with. If one person puts up a fence, then everyone will want one. This is a self created situation. The applicants knew what they bought when they bought it. Maybe they can put a row of hedges up that will grow quickly.
Mr. Deutermann noted that they wanted to keep people from coming into their yard and their niece from running into the road.
Vice Chairperson Haugen-De Puy stated that they were the adults and they had to watch their niece and take care of her. It was substantial to put that long of a fence in front of their home. She had no objection to the side yard, but this will set a precedent and everyone on Samsonville will want an 8’ fence in their front yard.
Mr. Bean noted that they have a very sloped yard – wouldn’t that be a consideration that is specific and unique to the property?
Vice Chairperson Haugen- De Puy didn’t believe that there were ever many accidents in that area.
Mr. Bean noted that they hear cars swerving all of the time.
Vice Chairperson Haugen- De Puy stated again that this was self created. The applicants knew what they were buying when they were buying it.
Mr. Bean also felt that having careers where they worked from home during the day was a consideration. He shoots pictures and models outside during the day and the high amount of traffic and truck traffic especially is very distracting to himself and his models.
Vice Chairperson Haugen- De Puy felt that they should have thought of this before they bought the property. They were both intelligent.
Board Member Kawalchuk stated that sometimes you have to live in a place to find out all the detriments.
At 7:25 Chairman Drabkin opened the hearing to the public. He noted that the Planning Board advisory was 5 members in favor and 1 against and 1 abstention. Chairman Drabkin wasn’t against this application. He doesn’t think that a 4’ high fence in the front yard is going to accomplish much. As part of his review and preparation for this application he’s ridden around and looked at fences that the ZBA has approved in the past and he noticed there were a lot of fences in general on Old Kings Hwy. And although he agreed that people should be able to do what they want with their property, he didn’t want to see Samsonville Road full of fences.
PUBLIC HEARING
THEODORE DEUTERMANN c/o Eric Bean(cont’d)– 2’ Area Variance for fence height, 246 Sammsonville Road, Tax Map # 76.1-2-1.1, R-1 District
Mr. Bean noted that they have made a point to propose to set the fence behind all of the existing trees and plantings and they don’t’ intend to take any down. They want it to look nice.
Chairman Drabkin stated that he believed that the slope in the front yard was definitely unique to the property.
Tim Newton was recognized to speak. Mr. Newton noted that he would be the person installing the fence and he has owned and operated a fence company in the Town for 25 years and each property has its own unique circumstances and he specifies how the fence looks on what the property is like. He put up a 12’ fence on Granite Road 20 years ago and it’s still standing.
Board Member Knudsen noted that she has seen the fence that was done for Aiden Quinn in Allergiville and its really attractive.
Keith Helmich was recognized to speak. Mr. Helmich noted that he did landscaping for a living and he noted that they sell shrubs that would branch out and are tall and deer resistant and would be bigger than a fence in the long run and would be better as a sound barrier and they would attract dust.
Gene Newton was recognized to speak. She noted that she used to sell real-estate and she doesn’t blame the applicants for not knowing what they were up against in regards to traffic and noise and dust. She also thought that a fence would be a better sound barrier than shrubs.
Board Member Kawalchuk noted that when she and Mrs. Knudsen visited the property last night that the 8’ fencing looked 4 ‘ because of the sloping in the front yard. It wasn’t offensive at all.
Chairman Drabkin noted that this application would need to go to the Ulster County Planning Board for a referral because this is on a County Road.
The Secretary confirmed this, noting that the County updated their referral process in 2008 and because this is on a County road, it needed to be referred.
Mrs. Knudsen agreed and noted that if this application gets held up another month because it needs to go to the Ulster County PB, she encouraged Board Members to go out and look at it again. The applicants were very accommodating in displaying samples of the fence around the yard to get an idea what it will look like.
Mr. Chizzola was recognized to speak. He noted that Aiden Quinn’s fence was mentioned—he believed that each case is different and doesn’t agree that each case is the same.
Chairman Drabkin noted that he would certainly agree with the law for 4’ fencing in the front yard and review them on a case by case basis for fences being requested over 4’.
PUBLIC HEARING
THEODORE DEUTERMANN c/o Eric Bean(cont’d)– 2’ Area Variance for fence height, 246 Sammsonville Road, Tax Map # 76.1-2-1.1, R-1 District
Board Member Knudsen noted that the Town has really grown over the years and the roads are heavily used. She believed that in the past the roads definitely did not have this amount of traffic. She was surprised when she did her site visit. She doesn’t normally go to that area of the Town, so it really surprised her how busy Samsonville Road was.
Mike Baden was recognized to speak. He noted that he is a member of the Town’s Planning Board and he has been attending Ulster County Planning Board Meetings as an audience member and with the new charter this application does need to be referred to them because it is on a County Road.
Vice Chairperson Haugen De Puy motioned to continue the public hearing pending the referral response from the Ulster County Planning Board. Seconded by Mr. Kingston. All members present in favor.
PUBLIC HEARING
SUSAN JARVIS c/o Howard Jarvis– 32 sq ft. Area Variance for sign size, 4736 Route 209, Tax Map #69.3-2-17.110, ‘B’ District
Chairman Drabkin noted that because this application was on a state road, it would also need to be referred to the County as did the application previous to this one. Therefore the Public Hearing would need to be kept open.
Howard Jarvis was present on behalf of this application. They noted that Howard Jarvis installed a sign to promote his business and he was unaware that he went over the square footage limit. The sign has 32 sq ft on each side and is only supposed to be 32 sq ft total. He covered one side and the other side is exposed, so he is no longer in violation.
Vice Chairperson Haugen De Puy did not believe that this was self created. Its only natural to have a 2 sided sign.
At 7:50PM the hearing was opened to the public.
There was no public comment.
At 7:50 Mrs. Haugen De Puy motioned to continue the public hearing pending the County response. Seconded by Mr. Kingston. All members present, in favor.
PUBLIC HEARING
JEFF & JODI SUBEH-, 30’ Area Variance requested for side yard setback to construct garage, 55 Markle Road, Tax Map # 68.13-2-49, R-1 District
Mr. & Mrs. Subeh were present on behalf of their application.
Chairman Drabkin noted that the applicants were seeking a 30’ side yard area variance to construct a garage 10’ off of their property line.
Mr. Subeh noted that they would like to construct a 24’ x 24’ garage on their property. His driveway is +/-250’ in length, and he wanted it placed this way so he could pull into his garage and back out and turn his car around in his driveway so he didn’t have to back out onto the road. He felt that this was a safety issue.
Chairman Drabkin stated for the record that in 1996 the applicant’s father applied for the same variance and was denied. He continued to read the denial from the 1996 Decision#ZBA 1996-15, Applicant Shafig Subeh:
“The Town of Rochester Zoning Board of Appeals, being familiar with this application and all known facts, does hereby deny to Shafig Subeh an Area Variance for 30’ side setback because the Zoning Board of Appeals determined based upon established facts and testimony at the Public Hearing that Mr. Subeh did not meet the criteria for an Area Variance.”
Mr. Subeh stated that to attach his garage to his house would be attaching the garage to his screen porch. If he did this it would ruin his screen porch as it wouldn’t get any sunlight. At this time he submitted letters from neighbors in favor of his variance.
At this time the hearing was open to the public.
There was no public comment.
Board Member Knudsen noted that she was involved with the first decision for Shafig Subeh. Mrs. Haugen De Puy, Vice Chair, noted the same.
Board Member Knudsen stated that a lot of discussion regarding that application had taken place and she recalled it being controversial as they didn’t deny many applications. She had visited the property last night on 5-11-09 and she believed that there were other places to put the garage. She then read the balancing test for deciding on an area variance as follows:
In order to grant a variance, the ZBA must consider if the applicant’s benefit to the detriment to health, safety and welfare of the community is substantial.~ The ZBA must consider:
· whether the applicant can achieve this request by other means;~~
· whether the application will cause an undesirable change in the neighborhood character or nearby properties;
· whether the request is substantial;
· whether the situation is self created;
· whether the request will have an adverse impact on the environment.
PUBLIC HEARING
JEFF & JODI SUBEH (cont’d)– 30’ Area Variance requested for side yard setback to construct garage, 55 Markle Road, Tax Map # 68.13-2-49, R-1 District
She continued, that the ZBA must grant the least amount of variance possible.
Mr. Subeh insisted on this location as no other location would afford him the ability to turn his vehicles around in his driveway and pull out onto the road as opposed to backing out.
Vice Chairperson De Puy felt that there had to be some way for the applicant to improve his site distance at the end of his driveway.
Mr. Kingston noted that he didn’t see that as a resolve to the issue.
Mr. Subeh re-iterated that he wouldn’t be able to turn his vehicles around if the garage was attached to the house.
Mr. Kingston advised the applicant that the ZBA wasn’t saying the garage needed to be attached to the house. He too had visited the property and recalled there being ample room to do some maneuvering—he noticed that Mr. Subeh had cut down a number of trees in preparing for the construction of his garage. Maybe if he moved some of those stumps he could create more space to achieve his goal. The garage could be moved closer to the road—or even further back. It seemed like there was enough flat area to do something else that wouldn’t require a 30’ variance. He recognized the fact that a gas tank may need to be moved, but that wasn’t unheard of. Gas companies did that all of the time.
Board Member Kawalchuk questioned if the applicant considered putting a breezeway from the house to the garage—that way it wouldn’t be connected, but it would be close enough to either drastically minimize or eliminate the need for the variance.
Mr. Subeh insisted that the sun would not get to the screen porch.
Chairman Drabkin noted that it was clear that the applicant wanted the 30’ variance on a 40’ side yard setback. He noted the unfavorable advisory from the Planning Board for the record stating that Members of the PB voting for the unfavorable advisory felt that there were more practical options. One Member didn’t think the applicant would be able to drive in and out of the garage at the angle in which was proposed and suggested placing the garage doors to the front facing the road and moving the garage down further toward the road.
Mr. Subeh didn’t feel that aesthetically the property would benefit from having the garage off set from the house either by moving it further back or further forward.
Chairman Drabkin noted that this very application was turned down in 1996 and he didn’t see where the circumstances had changed.
Mr. Subeh didn’t see why something that happened in the past would have an effect on him.
PUBLIC HEARING
JEFF & JODI SUBEH(cont’d)– 30’ Area Variance requested for side yard setback to construct garage, 55 Markle Road, Tax Map # 68.13-2-49, R-1 District
Chairman Drabkin explained that it was because it’s the same variance that is being asked for and 30’ is a substantial request. There has to be a very good reason to vary the law.
Board Member Knudsen added that the applicant needed to meet the criteria that was previously described to vary the law. A big part of that is if the applicant can achieve his goal by any other means and the Board is showing him a number of alternatives that would alleviate, if not eliminate the need for such a big variance.
Board Member Kingston agreed with Board Member Knudsen and noted that if the applicant needed screening from his neighbor- then he should consider putting bushes or some other type of screening in.
Board Member Kingston motioned to close the Public Hearing. Seconded by Vice Chairperson, Haugen-De Puy. All members present in favor.
Discussion:
Board Member Kawalchuk again suggested moving the garage closer to the house, putting a breezeway up and accomplishing his goals that way. If he still needed a variance to do this, it would be a lot less than the 30’ he was requesting now.
Board Member Kingston motioned to deny the variance based on 140-63D.(2)(b)[2]: “Whether the benefit sought by the applicant can be achieved by some method, feasible for the applicant to pursue, other than an area variance”. The Board offered several alternatives and the applicant even noted at his pre-application meeting that there was another spot he could put the garage, but he didn’t prefer that location to the requested location. This also made the variance requested self created. Vice Chairperson Haugen- De Puy seconded the motion.
Vote:
Drabkin- Yes Kawalchuk- Yes
Haugen-De Puy- Yes Knudsen- Yes
Kingston- Yes McKenzie, alt.- Not required to vote
Board Member Kawalchuk motioned to adjourn the meeting seconded by Mr. Kingston. No discussion. All members present, in favor.
As there was no further business to discuss, Chairman Drabkin adjourned the meeting at 8:10 PM.
Respectfully submitted,
Rebecca Paddock Stange, Secretary