Minutes of April 12, 2011 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
Cliff Mallery
James Kingston
Betty Kawalchuk
John Dawson, Alternate
Because there was a full Board, Alternate John Dawson sat in the public section.
Pledge to the Flag.
Chairman Drabkin welcomed new member Cliff Mallery to the Board and noted that Mr. Mallery had reviewed the Stefanopolous file. Chairman Drabkin confirmed by asking Board Member Mallery if he was familiar with the record to make a decision?
Board Member Mallory answered, yes.
Chairman Drabkin welcomed new Alternate, John Dawson. Although Alternate Board Member Dawson was not participating in this meeting as there was a full Board, Chairman Drabkin asked him if he was familiar with the record to make a decision should the need arise?
Alternate Board Member Dawson answered, yes.
ACTION ON MINUTES
Board Member Kingston motioned to accept the October 12, 2010 minutes. Seconded by Board Member Kawalchuk. No discussion.
Drabkin: Yes Mallery: Abstain
Haugen De Puy: Abstain Kawalchuk: Yes
Kingston: Yes Dawson, Alt: (Not required to
participate)
Motion carried.
Board Member Kawalchuk motioned to accept the December 14, 2010 minutes. Seconded by Board Member Kingston. No discussion.
Drabkin: Yes Mallery: Abstain
Haugen De Puy: Abstain Kawalchuk: Yes
Kingston: Yes Dawson, Alt: (Not required to
participate)
Motion carried.
CONTINUED PUBLIC HEARING
GEORGE STEFANOPOULOS – Area Variance for proposed lot line setbacks, 46 Lower Granite Road, Tax Map #76.3-2-6, R-2 District
Chairman Drabkin gave a synopsis of the application noting that Mr. Stefanopolous has two houses on +/-5.4 acres on Lower Granite Road. He would like to split the property into two parcels with a house on each lot. The applicant would need a variance to achieve this as the houses are 44’ apart, and the required side yard setbacks as per the Town’s Zoning in this district is 40’. Chairman Drabkin further noted that the ZBA held a Public Hearing on December 14, 2010 and had kept it held open until this date to give the applicant a chance to clear up his violations that were issued by the Code Enforcement Office (CEO) on October 26, 2010. In a letter dated April 4, 2011 from the Code Enforcement Officer the ZBA has been notified that the October 26, 2010 violation has been remedied.
Chairman Drabkin opened the matter up to the Board to discuss.
Vice Chairperson Haugen- De Puy questioned what became of the issue with the alleged automobile repair business?
Chairman Drabkin indicated that it the Code Enforcement Officer’s letter was to the ZBA dated April 4, 2011 stated that the October 26, 2010 violation had been remedied.
Vice Chairperson Haugen-De Puy questioned if the boat that was in front of the house had been removed?
Chairman Drabkin re-iterated that the October 26, 2010 violation had been remedied.
Board Member Kingston noted that the violation has said to have been remedied according to the CEO. Has anyone from the Board gone there and looked?
Chairman Drabkin stated that it wasn’t the responsibility of the ZBA; it was the responsibility of the CEO. By coincidence Chairman Drabkin happened to pass by the property and it didn’t seem tidy, but it’s not Chairman Drabkin’s determination.
Board Member Kingston questioned if the applicant submitted a deed?
Chairman Drabkin stated that he did and there were no restrictions on subdividing the property.
Board Member Kingston questioned what the rest of the Board thought about Health Dept. approval and the fact that the applicant only has one well that is shared between the houses?
Chairman Drabkin stated that if the variance was granted that they applicant would be directed by the CEO to the Planning Board for subdivision approval and the Planning Board would address that aspect of it.
Vice Chairperson Haugen-De Puy questioned if the applicant had a shared well agreement?
CONTINUED PUBLIC HEARING
GEORGE STEFANOPOULOS – Area Variance for proposed lot line setbacks, 46 Lower Granite Road, Tax Map #76.3-2-6, R-2 District
Mr. Stefanopolous did not have a shared well agreement for the houses to share one well. He was planning on drilling another well once he split the property.
Chairman Drabkin noted that they could make it a condition that if one well exists at the time of subdivision, that he should create a shared well agreement that the Town Attorney reviews.
At this time Chairman Drabkin opened the hearing to the public for comment.
Bounding owner, Matt Calardo was recognized to speak. Mr. Calardo noted that the property is still not tidy. The Boat is gone and that is an improvement. Mr. Calardo stated that in his opinion the property was commercial in nature and this is a residential district. There is a tractor trailer body in the yard.
Chairman Drabkin noted that we all know that there have been violations on the property. The variance and the violations are like apples and oranges. The apples are whether or not the ZBA grants the variance and the oranges are the activities on the property, which are the responsibility of the CEO. The ZBA is not an enforcement agency. The Board has been notified by the CEO that there are no current violations on the property. It’s the CEO’s responsibility to act upon problems that may be brought to his attention.
Vice Chairperson Haugen- De Puy questioned if anyone living on the property held a Class A CDL License? Driving a tractor trailer is a means of income.
Mr. Stefanopolous answered that he did have a Class A CDL License and he showed it to Vice Chairperson Haugen- De Puy.
Mr. Calardo noted that this particular parcel changes the characteristic of this residential neighborhood—there is a commercial forklift and the tractor trailer body and the ongoing unlicensed motorized vehicle repair business.
Chairman Drabkin stated again that the ZBA is bound by the determination of the CEO. If neighbors have complaints about the parcel, they need to get those complaints to the CEO.
Board Member Kawalchuk questioned if any of the other neighbors objected?
CONTINUED PUBLIC HEARING
GEORGE STEFANOPOULOS – Area Variance for proposed lot line setbacks, 46 Lower Granite Road, Tax Map #76.3-2-6, R-2 District
Mr. Calardo noted that his neighbors concerns were similar to his own. His neighbors were unable to attend the meeting this evening.
Mr. Stefanopolous questioned if he could ask Mr. Calardo a question?
Chairman Drabkin answered, no. They could speak to one another after the meeting.
Mr. Stefanopolous stated as he had done at previous meetings that the vehicles being repaired on the property were personal vehicles and family member’s vehicles. This was not for commercial purposes. Even the CEO checked the plates and found that they belonged to family members.
Chairman Drabkin stated that he was sympathetic with the neighbors, but the CEO has cleared the October 26, 2010 violation which has held up this application since October.
Vice Chairperson Haugen- De Puy questioned how many of the vehicles on the property had plates on them?
The applicant answered that they all had plates on them.
Board Member Kawalchuk questioned if Mr. Calardo could see all of these vehicles being repaired if he looked out his window?
Mr. Calardo answered, yes.
Chairman Drabkin noted that the Board addressed the concerns regarding the problems that the neighbors had with the property. Now the ZBA is at a point in the review that they can make a decision.
Vice Chairperson Haugen- De Puy questioned how many acres each parcel will be?
The applicant answered that each parcel will be +/-2.7 acres.
Chairman Drabkin reminded the Board that they need to determine if this property line adjustment is in the best interest of the Town.
CONTINUED PUBLIC HEARING
GEORGE STEFANOPOULOS – Area Variance for proposed lot line setbacks, 46 Lower Granite Road, Tax Map #76.3-2-6, R-2 District
Vice Chairperson Haugen- De Puy motioned to close the Public Hearing. Seconded by Board Member Kingston. No discussion.
Drabkin: Yes Mallery: Yes
Haugen De Puy: Yes Kawalchuk: Yes
Kingston: Yes Dawson, Alt: (Not required to
participate)
Motion carried.
Chairman Drabkin motioned for the Town of Rochester ZBA to be Lead Agency and that this was an Unlisted Action under SEQRA with a Negative Declaration as there will be no environmental impacts. Seconded by Vice Chairperson Haugen- De Puy. No discussion.
Drabkin: Yes Mallery: Yes
Haugen De Puy: Yes Kawalchuk: Yes
Kingston: Yes Dawson, Alt: (Not required to
participate)
Motion carried.
Chairman Drabkin noted that now that the Public Hearing was closed the Board had 62 days to make a decision.
The Secretary spoke with the Town Attorney at Chairman Drabkin’s instruction about having her review decisions. The Town Attorney noted that once the board makes the decision and votes on it, she doesn’t have time to review the decision before it needs to be filed with the Town Clerk. The decision has to be filed with the Town Clerk within 5 business days. The Town Attorney also noted that once the ZBA makes a decision- there isn’t much for her to review because she can’t make advisements to revise anything because its already been voted on. Unless there is a strong reason, the Town Attorney has recommended that the ZBA close the Public Hearing, draft a decision and forward it to her for her review and comments, and then it can be formally voted on at the next meeting. This will delay the applicant by another month, but it will protect the Town by making certain that the decision is legally sound and consistent. Chairman Drabkin has been made aware that this is the practice of the Planning Board as well. Chairman Drabkin noted that if the Board doesn’t like this suggestion, they can do it as they have the previous years.
Vice Chairperson Haugen- De Puy agreed that this would protect the Town.
Board Member Kingston was not in favor of having the Town Attorney review the decisions before a formal vote.
Chairman Drabkin re-iterated that this was the only way to be sure that the decisions would be legally sound should they be challenged.
Vice Chairperson Haugen- De Puy noted that they could make their draft decisions as “preliminary draft decisions”, have the Attorney review them, and then make a “final decision” at the next meeting based on her review of the draft decision.
CONTINUED PUBLIC HEARING
GEORGE STEFANOPOULOS – Area Variance for proposed lot line setbacks, 46 Lower Granite Road, Tax
Map #76.3-2-6, R-2 District
Vice Chairperson Haugen- De Puy motioned for a Preliminary Draft Decision for the George Stefanopolous Area Variance Application to be submitted to the Town’s Attorney, Mary Lou Christiana for her review of the following:
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.
- The Board determined that to split the property in two and to have one house on each parcel, there is no other location to put the proposed property line that would meet the 40’ required side yard setback. ~~
- whether the application will cause an undesirable change in the neighborhood character or nearby properties.
- The Board determined that this request will be consistent with the neighborhood as it is in a two acre district and these parcels will meet the acreage requirements of the R-2 District.
- whether the request is substantial.
- The Board determined that this was not a substantial request as the variance is the minimum amount per parcel required per parcel.
- whether the situation is self created.
- The Board determined that this was not self created as the property was purchased this way and the homes are pre-existing.
- whether the request will have an adverse impact on the environment.
- The Board determined that this variance would not have an adverse impact on the environment as there will be no physical change to the property.
Based upon the above facts established, the above balancing test, all written documents, and site visits, the ZBA voted to approve the Applicant’s request for two (2)– 18’ Area Variances for a proposed lot line setbacks at 46 Lower Granite Road, Tax Map #76.3-2-6, R-2 District of the Town of Rochester with the following conditions:
- The applicant shall submit a shared well agreement for the two homes located at 46 Lower Granite Road subject to review by the Town Attorney.
- The applicant shall be responsible for all fees connected with the Town Attorney’s review of the shared well agreement.
VOTE:
Drabkin: Yes Mallery: Yes
Haugen De Puy: Yes Kawalchuk: Yes
Kingston: No Dawson, Alt: (Not required to
participate)
(Board Member Kingston was not against granting the variance, he was not in favor of having the Town Attorney review a draft decision.)
Motion carried. 4 ayes, 1 nay
CONTINUED PUBLIC HEARING
GEORGE STEFANOPOULOS – Area Variance for proposed lot line setbacks, 46 Lower Granite Road, Tax Map #76.3-2-6, R-2 District
Board Member Kingston motioned to approve the area variance based on the facts presented and the balancing test as the Board reviewed it, without sending it to the Town Attorney for her review.
Vote:
Drabkin: No Mallery: No
Haugen De Puy: No Kawalchuk: Yes
Kingston: Yes Dawson, Alt: (Not required to
participate)
Motion did NOT carry. 2 ayes, 3 nays
PRE-APPLICATION PRESENTATION
REGINE A. SECKINGER & BRIAN H. SCOTT– C/O Timothy Newton, 2’ Area Variance for a 6’high 224’ long privacy fence in front yard (Section 140-13A), 673 Samsonville Road, Tax Map # 68.2-1-20, R-2 District
Mr. Newton of Tri- County Fencing was present on behalf of the application and presented a letter of authorization from Ms. Seckinger and Mr. Scott for him to represent the application on their behalf.
Chairman Drabkin noted that this was a 2’ area variance request for a 224’ long privacy fence to shield the applicant’s home from automobile headlights.
Vice Chairperson Haugen- De Puy indicated that this property was past the Catskill Native Nursery.
Mr. Newton noted that the fence starts at 4’ high and then goes up to 6’ under the trees.
Chairman Drabkin questioned how much of the fencing would be underneath the Central Hudson Lines? The drawing doesn’t reflect what the Board needs to see. The Board also needs to see the existing landscaping.
Mrs. Kawalchuk questioned if the applicant had pictures.
Mr. Newton passed pictures around the table for the Board Members to view.
Chairman Drabkin noted that he would like to see the applicants use a section of plywood to place on the property where they are asking for the fence at the height requested to show how the proposed fence would stop the headlights from shining in their home.
Mr. Newton noted that there is a swimming hole that is not marked on the plans that they want to utilize, but it is visible from the road and they want the fence for privacy.
Chairman Drabkin stated that he would like to see engineered drawings or a drawing that reflects what is existing and what they propose here. After viewing the property, he believes a minimal amount of screening would achieve the applicant’s goal.
PRE-APPLICATION PRESENTATION
REGINE A. SECKINGER & BRIAN H. SCOTT (cont’d)– C/O Timothy Newton, 2’ Area Variance for a 6’high 224’ long privacy fence in front yard (Section 140-13A), 673 Samsonville Road, Tax Map # 68.2-1-20, R-2 District
Board Member Kingston agreed. The Board often suggests shrubbery as an alternative to fencing and the applicants always complain that it takes too long for it to grow to give them the privacy that they are looking for. There is shrubbery out there that doesn’t take long to grow and is effective.
Chairman Drabkin agreed. The impact of fencing on the community can be substantial. Plantings and landscaping can minimize the impact. The ZBA has to grant the least amount of a variance that they determine the applicant will need to accomplish their goal.
Vice Chairperson Haugen- De Puy didn’t believe that in order to achieve their goal for privacy that they would need to fence the whole property.
Chairman Drabkin stated that he wanted to see detailed drawings to consider what the impact of this application would actually be. The only way he could see this from being at the property would be to push the fence back far enough behind the existing vegetation. He didn’t believe that 30’ from the edge of the road was far enough back.
Vice Chairperson Haugen- De Puy wanted to see the deed to the property to see that where it was proposed to be placed was correct.
Chairman Drabkin noted that the applicant needed a survey marked out and a letter from Central Hudson saying that the fence will be substantially back from the road and not in their right of way.
Board Member Kingston noted that the pond that was marked on the drawing was not being screened with the location that they were proposing for the fence.
Mr. Newton noted that the pond they were referring to wasn’t listed on the site plan.
Chairman Drabkin didn’t think the pond was the issue.
Vice Chairperson Haugen- De Puy noted that’s why they were saying a survey was needed- to show what was on the property to scale.
Mr. Newton noted that this wasn’t rocket science. These people just wanted a fence for privacy.
Chairman Drabkin noted that from what was submitted, the applicant is not telling the Board what they want- and the Board can’t tell by looking at the drawing that was submitted.
Mr. Newton noted that he has it all marked out on the property. He urged the Board to take a ride and look.
PRE-APPLICATION PRESENTATION
REGINE A. SECKINGER & BRIAN H. SCOTT (cont’d)– C/O Timothy Newton, 2’ Area Variance for a 6’high 224’ long privacy fence in front yard (Section 140-13A), 673 Samsonville Road, Tax Map # 68.2-1-20, R-2 District
Chairman Drabkin noted that the Board voted on a fence previously that was constructed by Mr. Newton. At that time a section of the fence was placed on the property to give the Board a sense of what it would look like. After it was voted on and the Board was able to view the whole fence that was installed, it really was not an adequate aid in which the Board used to make a decision. The ZBA needs more information to build a record.
Board Member Kingston questioned if the applicants have used this pond to go swimming in before?
Mr. Newton noted that they have not yet, but that is their intention.
Board Member Kingston questioned how long the applicants have lived there?
Mr. Newton noted that they bought the property this past Fall.
Board Member Kingston noted that they could put a privacy fence much closer to the swimming hole; they didn’t need to go along the whole property line. They didn’t need a huge fence.
Chairman Drabkin re-iterated his suggestion for landscaping as opposed to fencing; however he understood that Mr. Newton was in the business of selling fences, so of course he was going to go the route of the variance request. Chairman Drabkin felt that this request was substantial and that the applicant needed to submit a survey showing the pond in question, the house, the existing shrubbery, elevations and exactly where the fence was going to go- showing distances from the road and buildings, and the showing the Central Hudson right of way in relation to the fence placement. He wanted a plant that showed exactly what the applicants wanted to do. The applicant needed to present accurate documentation and until they did so, this request would still be in the preliminary stages without a formal ZBA application.
After further suggesting pushing the fence back further and closer to the pond, the Board suggested that the applicant meet with the CEO again to get his determination on where the front yard was and if the fence was pushed back far enough if it would be in the side yard and if the applicant actually needed a variance after all.
OTHER MATTERS
Chairman Drabkin noted that the ZBA has been forwarded a letter from Planning Board Chairman, Mike Baden, requesting the swap of meeting dates between the ZBA and the PB. The ZBA would now meet the third Tuesday of the month and the PB would meet the second Tuesday of the month. In his letter, PB Chairman Baden explained how this would be in the best interest of the Town.
The ZBA members agreed with this.
ADJOURNMENT
Board Member Kingston motioned to adjourn the meeting seconded by Vice Chairperson Haugen- De Puy. No discussion. All members present, in favor.
As there was no further business to discuss, Chairman Drabkin adjourned the meeting at 8:20PM.
Respectfully submitted,
Rebecca Paddock Stange, Secretary