ZBA Minutes April 2010

Minutes of April 13, 2010 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       
        Beatrice Haugen-De Puy, Vice Chair                      
        Marijane Knudsen                                        
James Kingston
        Betty Kawalchuk

 

Pledge to the Flag.

 

ACTION ON MINUTES
Motion was made by Mrs. Haugen De Puy, Vice Chair and seconded by Mr. Kingston to accept the November 11, 2009 minutes. No discussion.
Vote:
Drabkin:        Yes                                                     Knudsen:                Yes
Haugen De Puy:  Yes                                                     Kawalchuk:              Yes
Kingston:               Yes                                                     McKenzie, alt:  Absent

 

Motion was made by Vice Chairperson Haugen De Puy, and seconded by Mrs. Kawalchuk to accept the February 9, 2010 minutes. No discussion.
Vote:
Drabkin:        Yes                                                     Knudsen:                Yes
Haugen De Puy:  Yes                                                     Kawalchuk:              Yes
Kingston:               Yes                                                     McKenzie, alt:  Absent
PUBLIC HEARING
VINCI FARMS, LLC, c/o Jeremy Jones– Use Variance for Recording Studio, 311 Clay Hill Road,
Kerhonkson, Tax Map # 76.1-1-22.11, AR-3 District

 

 James Reynolds, Architect, and Michael Moriello were present on behalf of the application.

 

Chairman Drabkin noted that this is a Public Hearing for Vinci Farms, LLC. They are applying for a Use Variance for a recording studio in a large barn at 311 Clay Hill Road in Kerhonkson.
PUBLIC HEARING
VINCI FARMS, LLC, c/o Jeremy Jones (cont’d)– Use Variance for Recording Studio, 311 Clay Hill Road, Kerhonkson, Tax Map # 76.1-1-22.11, AR-3 District

 

Mr. Moriello displayed a site plan of the property for the public to view. He introduced the applicants as well as Mr. Reynolds. The application was for a Use Variance to take a 40,000 square foot barn and convert it into a recording studio. The property is +/-33.78 acres and in an AR-3 District of the Town. In addition to the application and addendum submitted, applicants submitted a demolition estimate from Frank Kortright dated March 31, 2010, Vinci Farms, LLC financial statements dated December 31, 2009, and an Agricultural Data Statement mailed to Coordinated Ranches, Inc and Tara Ventures, Inc. dated April 2, 2010 as this property is in a County Ag. District and a portion of the property does have an Ag. exemption.

 

A referral response was received by the Ulster County Planning Board dated April 7, 2010 because this property was in an Ag District. Advisory comments attached.

 

As per the request of the ZBA Mr. Medenbach, PE updated the survey of the property. The applicant suggested that this action is a Type 2 Action and filled out a Part 1 Short SEQRA Form.   

 

Chairman Drabkin stated that a Use Variance requires a test. This use is permitted in a residential district, but because this is in an Agricultural District it is not permitted. Chairman Drabkin read the criteria for a Use Variance as per 140-66B. of the Town Code:
B. Use variances.
(1) The Zoning Board of Appeals, on appeal from the decision or determination of the administrative officials charged with the enforcement of this law, shall have the power to grant use variances, as defined herein.
(2) No such use variance shall be granted by a Zoning Board of Appeals without a showing by the applicant that applicable regulations and restrictions of this law have caused unnecessary hardship. In order to
prove such unnecessary hardship the applicant shall demonstrate to the Zoning Board of Appeals that;
(a) he or she cannot realize a reasonable return, provided lack of return is substantial as demonstrated by competent financial evidence;
(b) the alleged hardship relating to the property in question is unique, and does not apply to a substantial portion of the district or neighborhood;
(c) the requested use variance, if granted, will not alter the essential character of the neighborhood; and
(d) the alleged hardship has not been self-created.
(3) The Zoning Board of Appeals, in the granting of use variances, shall grant the minimum variance that it
shall deem necessary and adequate to address the unnecessary hardship proven by the applicant, and at
the same time preserve and protect the character of the neighborhood and the health, safety and welfare
of the community.
These tests will be met by the applicant to the extent that its applicable the Board will determine if the benefit to the applicant outweighs the detriment to the community.
PUBLIC HEARING
VINCI FARMS, LLC, c/o Jeremy Jones (cont’d)– Use Variance for Recording Studio, 311 Clay Hill Road, Kerhonkson, Tax Map # 76.1-1-22.11, AR-3 District

 

Mr. Reynolds showed where the barn is situated on the property on the survey map. The original structure was a chicken coop and then in the early 1980’s the large indoor riding arena was added. If approved, a portion of the barn – the previous indoor riding arena will be dedicated to film production. There will be no significant change to the property. They would create a public entrance and the only visible change outside will be to create better ingress and egress. There will be no substantial change to the exterior of the building. They would be making upgrades internally to the building conforming to NYS Building Codes and adhering to their safety regulations.

 

Board Member Knudsen noted that she read the application and addendum submitted by Mr. Moriello received dated by the ZBA on March 9, 2010. On Page 2 of the addendum, Mr. Morriello states that he discussed how the project would be typed under SEQRA with the ZBA at a meeting on January 26, 2010. She didn’t recall meeting on that date.

 

Secretary, Mrs. Paddock Stange confirmed that the ZBA didn’t meet in January. They met with the applicants on February 9, 2010.

 

Mr. Moriello recalled this stating that it was a typo in the addendum.

 

Chairman Drabkin noted that the February minutes stated that “property” would be used for a recording studio. Was this solely going to be in the building?

 

Mr. Moriello didn’t want to limit the approval to just the building. They would need to provide for some parking and ingress and egress on the premises.

 

Mr. Dal Farra, partner in Vinci Farms was present and noted that any filming and computer editing work would be inside the barn. No exterior filming will take place. Any outdoor activity would be driving and parking.

 

Vice Chairperson Haugen De Puy,  questioned if scenes would be built outside?

 

Mr. Dal Farra noted that scenes would be filmed within 50 miles. There would be no building of sets.

 

At 7:15PM Chairman Drabkin opened the hearing for public comment.

 

Linda Fite was a bounding owner and is directly across from the entrance to this property. She has no problem with the proposal, but as a neighbor she has concerns with the amount of traffic and dust generated from this dirt road. If there is a lot of traffic especially in the summer the wind makes the dust horrendous. If there was to be a lot of traffic, she respectfully requested either paving the first 100’ or 200’ of the dirt access road or keeping it wet or some other form of dust control measures. She was also concerned if there were big trucks because this was a very narrow section of Clay Hill Road. She would request people coming in would drive slowly and be careful.

 

PUBLIC HEARING
VINCI FARMS, LLC, c/o Jeremy Jones (cont’d)– Use Variance for Recording Studio, 311 Clay Hill Road, Kerhonkson, Tax Map # 76.1-1-22.11, AR-3 District

 

In response to Linda Fite, Chairman Drabkin stated that the ZBA’s responsibility is the Use Variance. If the ZBA grants the variance, the applicant will be required to go to the Planning Board for Site Plan Approval. The Planning Board’s responsibility is to address the factors that Ms. Fite was concerned about amongst other impacts.

 

Mr. Dal Farra noted that they intend to treat the first 200’ of their roadway to control the dust. There will not be any big trucks—U-Hauls would be the largest. He would expect about 15 cars coming and going during the day.

 

Vice Chairperson Haugen De Puy motioned for the Town of Rochester ZBA to be Lead Agency under SEQRA with an Unlisted Action and a Negative Declaration as there would be no significant environmental impacts. Motion seconded by Board Member Kingston. No discussion.
Vote:
Drabkin:        Yes                             Knudsen:                Yes
Haugen De Puy:  Yes                             Kawalchuk:              Yes
Kingston:               Yes                             McKenzie, alt:  Absent

 

Board Member Knudsen stated that the UCPB Referral Response and the PB Advisory Response needed to be read into the record before the Public Hearing was closed.

 

Chairman Drabkin read into the record the UCPB referral response. The Chairman also read into the record letter dated April 7, 2010 from David O’Halloran, bounding owner as well as letter from  demolition to the Frank Kortright with an estimate of the demolition in the amount of $185,000 to tear down the barn. Also read into the record was the Town of Rochester Planning Board Advisory Opinion dated March 23, 2010.
PUBLIC HEARING
VINCI FARMS, LLC, c/o Jeremy Jones (cont’d)– Use Variance for Recording Studio, 311 Clay Hill Road,  Kerhonkson, Tax Map # 76.1-1-22.11, AR-3 District

 

Chairman Drabkin noted that he visited the site and there was a huge number of offices already existing in the barn.

 

Board Member Knudsen noted that from looking at the map there was a main house and a couple other houses there—were they still there?

 

Mr. Dal Farra noted that people resided in those houses.

 

Board Member Knudsen questioned that since this property had an Agricultural Exemption there might be a potential to classify this as Agritourism that was allowed in that district. Was there any farming activities on site to support this possibility?

 

Mr. Dal Farra noted that there was no farming on the site.

 

Mrs. Fite questioned if this property was granted this Use Variance would they still be allowed to have sheeps and horses on the property?

 

Chairman Drabkin stated yes, they could still have horses and sheep.

 

Mrs. Kawalchuk motioned to close the Public Hearing. Seconded by Vice Chairperson Haugen De Puy. No discussion.
Vote:
Drabkin:        Yes                             Knudsen:                Yes
Haugen De Puy:  Yes                             Kawalchuk:              Yes
Kingston:               Yes                             McKenzie, alt:  Absent

 

Mr. Moriello questioned if the Board was going to read through Part 2 of SEQRA as he prepared it and vote on it?

 

Board Member Kingston stated that granting a Use Variance should be done with a great deal of care. Granting Use Variances can be very problematic. The Board can be accused of spot zoning. This Zoning Ordinance was determined by a committee. The Use Variance should be given by the Planning Board. Not the ZBA.
 

 

PUBLIC HEARING
VINCI FARMS, LLC, c/o Jeremy Jones (cont’d)– Use Variance for Recording Studio, 311 Clay Hill Road, Kerhonkson, Tax Map # 76.1-1-22.11, AR-3 District

 

Chairman Drabkin cleared this up stating that the Planning Board would have to issue Site Plan Approval, but the ZBA was the Board to grant the Use Variance. This use is allowed in other districts, but it is not allowed in this district and therefore the applicant has applied for a Use Variance. The Chairman agreed that deciding on a Use Variance is a very serious matter but because this is an allowed use within the town and the applicant has demonstrated that there will be minimal impacts…

 

Board Member Kingston interrupted noting that he sees that a problem with this could be setting a precedent.

 

Mr. Moriello noted that in his addendum he sited cases with regards to prior precedent in NY State Law reads that a municipal board would have to have a virtually identical application to be able to apply “prior precedent”. He didn’t think that this instance will lend itself to prior precedent as it is unique.

 

Chairman Drabkin read from Section 140-66B.(b) “the alleged hardship relating to the property in question is unique, and does not apply to a substantial portion of the district or neighborhood;”. The applicant will invest a great deal of money in this Town.

 

Board Member Kingston continued that some jurisdictions don’t even allow ZBA’s to do Use Variances because its changing the zoning of an area.

 

Chairman Drabkin noted that our Town has allowed that with meeting certain criteria Use Variances can be granted.

 

Board Member Knudsen stated that she sees this as an economic development for the town. The ZBA should go the criteria and apply rigid standards without personal opinion to determine if the applicant meets the criteria. She suggested that the Board go point by point of the criteria for a Use Variance in 140-66.
(a) he or she cannot realize a reasonable return, provided lack of return is substantial as demonstrated by competent financial evidence; Board Member Knudsen noted that the applicant submitted a business plan and financial statements. The ZBA should decide if this is acceptable.
Chairman Drabkin wanted to know if anyone had any questions regarding the financial plan?
Board Member Knudsen noted that the applicant has demonstrated that as is, this property is impossible to realize a reasonable return in this economic environment. Also the cost to tear down the building is another consideration.
Vice Chairperson Haugen- De Puy stated that the applicant has proven financial hardship.

 

Board Member Knudsen stated that the first section was fulfilled.  

 

(b) the alleged hardship relating to the property in question is unique, and does not apply to a substantial portion of the district or neighborhood; Board Member Knudsen stated that there aren’t many properties in this Town that could be in this same situation. Its unique. Vice Chairperson Haugen De Puy stated that at this time this does not apply to a substantial area. She agreed it was unique.
PUBLIC HEARING
VINCI FARMS, LLC, c/o Jeremy Jones (cont’d)– Use Variance for Recording Studio, 311 Clay Hill Road, Kerhonkson, Tax Map # 76.1-1-22.11, AR-3 District
 
(c) the requested use variance, if granted, will not alter the essential character of the neighborhood; andBoard Member Knudsen noted that the applicant wasn’t altering the outside of the building. She continued that the ZBA could condition dust control and traffic measures be dealt with concerning the road and the Planning Board could take these concerns to the next level in their review as this was their area to review.

 

 (d) the alleged hardship has not been self-created. Vice Chairperson Haugen De Puy noted that she did not agree with the UCPB’s statement that this is a self created hardship. What was this property zoned when the applicants bought it? The applicants bought this property 3- 4 years ago and the zoning was different. The new Zoning was adopted in November of 2009. The applicants were probably thinking of this use when they bought the property. Most people do this. They buy property thinking one day they will do such and such with it. But in this case, from the time the applicants bought the property to the time they applied Zoning changed and the use was no longer allowed.
Board Member Knudsen agreed with this.
Chairman Drabkin noted that even if it was self created, not meeting one section of the criteria did not preclude the ZBA from being able to grant a variance. This was a balancing test. Did the benefit to the applicant outweigh the detriment to the community.

 

Vice Chairperson Haugen De Puy motioned that because the applicants have done such a wonderful job in proving that this application meets the criteria of a Use Variance as follows:
(a) he or she cannot realize a reasonable return, provided lack of return is substantial as demonstrated by competent financial evidence; Board Member Knudsen noted that the applicant submitted a business plan and financial statements. The ZBA should decide if this is acceptable.
Chairman Drabkin wanted to know if anyone had any questions regarding the financial plan?
Board Member Knudsen noted that the applicant has demonstrated that as is, this property is impossible to realize a reasonable return in this economic environment. Also the cost to tear down the building is another consideration.
Vice Chairperson Haugen- De Puy stated that the applicant has proven financial hardship.
(b) the alleged hardship relating to the property in question is unique, and does not apply to a substantial portion of the district or neighborhood; Board Member Knudsen stated that there aren’t many properties in this Town that could be in this same situation. Its unique. Vice Chairperson Haugen De Puy stated that at this time this does not apply to a substantial area. She agreed it was unique.
(c) the requested use variance, if granted, will not alter the essential character of the neighborhood; andBoard Member Knudsen noted that the applicant wasn’t altering the outside of the building. She continued that the ZBA could condition dust control and traffic measures be dealt with concerning the road and the Planning Board could take these concerns to the next level in their review as this was their area to review.
(d) the alleged hardship has not been self-created. Vice Chairperson Haugen De Puy noted that she did not agree with the UCPB’s statement that this is a self created hardship. What was this property zoned when the applicants bought it? The applicants bought this property 3- 4 years ago and the zoning was different. The new Zoning was adopted in November of 2009. The applicants were probably thinking of this use when they bought the property. Most people do this. They buy property thinking one day they will do such and such with it. But in this case, from the time the applicants bought the property to the time they applied Zoning changed and the use was no longer allowed.
PUBLIC HEARING
VINCI FARMS, LLC, c/o Jeremy Jones (cont’d)– Use Variance for Recording Studio, 311 Clay Hill Road,  Kerhonkson, Tax Map # 76.1-1-22.11, AR-3 District

 

Having met the above criteria and the fact that they updated the map as requested by the ZBA, that the ZBA grant the Use Variance for a recording studio at 311 Clay Hill Road, Kerhonkson with the following conditions:
1.      Dust control measures by means of paving or chemical controls permitted by the NYS DEC shall be required for the first 200’ into the access into the property in question.
2.      Traffic control measures shall be taken by the applicant to ensure safety in turning into the access at the property in question. Large trucks shall be advised that this is a narrow section of Clay Hill Road and turns into the access to the property in question shall be taken with caution.
3.      All State, County, and Local Codes shall be adhered to for the minor internal alterations proposed to be made to the building.
4.      Minimal external construction shall take place.
5.      No outside activity for video production shall be permitted on the property in question.
Motion seconded by Board Member Kawalchuk.
Vote:
Drabkin:        Yes                             Knudsen:                Yes
Haugen De Puy:  Yes                             Kawalchuk:              Yes
Kingston:               Yes                             McKenzie, alt:  Absent

 

Vice Chairperson Haugen De Puy,  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 8:15 PM. 
                                                                
                                                                Respectfully submitted,
                                                                
     
                 Rebecca Paddock Stange, Secretary