Minutes of April 17, 2012, Town of Rochester Zoning Board of Appeals, held at the Town Hall, Accord, NY.
Meeting was called to order at 7:00 PM by Chairperson, Beatrice Haugen- De Puy.
Present: Absent:
Beatrice Haugen-Chairperson Elizabeth Kawalchuk
Cliff Mallery, Vice Chair
John Dawson
Troy Dunn
Charlie Fischer
Also present was Town Attorney, Mary Lou Christiana.
Pledge to the Flag.
ACTION ON MINUTES
Board Member Dawson motioned to accept the March 20, 2012 minutes. Seconded by Chairperson
Haugen De Puy. No discussion.
Vote:
Mallery: Yes Kawalchuk: Absent
Haugen De Puy: Yes Dawson: Yes
Dunn: Yes
Motion carried.
Because there was not a full Board, Alternate Charlie Fischer was appointed to the Board by Chairperson Haugen De Puy.
PRE-APPLICATION PRESENTATION
PHILLIP CHRISTOPHER– 350 Mettacahonts Road, 2’ Area Variance for 6’ high privacy fence in the front yard, Tax Map #68.16-1-11, R-1 Zoning District
Mr. and Mrs. Christopher were present on behalf of their application.
Chairperson Haugen De Puy introduced the ZBA Members and the noted that the applicants were seeking a 2’ Area Variance to have a 6’ high privacy fence in the front yard in an R-1 District. She requested that the applicant give a brief presentation of their request.
Mr. Christopher noted that the home is built very close to the road. The porch is 20’ from the road. The road gets a fair amount of traffic because of the store on the corner of Store Road and Mettacahonts Road named Star Grocers- the former Duffy’s Store. There is a considerable amount of pedestrian and vehicular traffic in front of their house. In the front yard there are now bushes which are encroaching on the road and they’d like to remove them. There was a large oak tree in the front that they lost during the hurricane this past Fall season. It had given them privacy from the road. You can literally look into their front windows when you walk down the road
PRE-APPLICATION PRESENTATION
PHILLIP CHRISTOPHER– 350 Mettacahonts Road, 2’ Area Variance for 6’ high privacy fence in the front yard, Tax Map #68.16-1-11, R-1 Zoning District
and that is primarily what they are attempting to alleviate. There is an existing fence that is on the roadside also which is deteriorating. It is more or less a picket fence. It’s a little over 5’ high. It does have growth on it. Right now this is a weekend house for them in the summer, but it is their goal to begin to use it much more and retire to the area in the next 5-10 years. The bushes are a hazard to the road. There is a Quince bush right on the road and a large Forsythia moving toward the house and the road. They want to keep the fence 10’ from the road which is about where it is now. It’s about 9’ from one corner and goes to 10’ back to the other corner. The in the area that’s right tin front of the house it actually drops down from the road so a 6’ fence would actually be a little higher than 5’ in height.
Board Member Dawson agreed noting that it looked like about a 2’ drop to him and the back yard looked to drop about 3’.
Mr. Christopher noted that they have spoken with their immediate neighbors and they have no issues with the request.
Board Member Dawson noted that it looks like headlights coming down from the other direction shine right into their house.
Mr. Christopher agreed.
Chairperson Haugen De Puy noted that she has reviewed the photos and saw where the shrubs would come out and the fence would go. After she reviewed the example of the fence style presented by the applicants, she questioned if they had considered any other style fence other than the flat board stockade style which makes them look like a fort. Had they given that any thought? Or was there maybe any way to trim the shrubs and keep them as privacy. She saw that they were older and she saw that it would take a while for them to come back once they’ve been trimmed.
Mr. Christopher noted that the problem there would be that they would only be given privacy during the summer months.
Chairperson Haugen De Puy questioned if there would be pedestrian traffic in the off season months?
Mr. Christopher noted that the traffic wouldn’t be so much the pedestrian traffic, but they would have vehicular traffic. The fence they would want to build would be wider boards.
Chairperson Haugen De Puy noted that in her mind it would still look like a fort. She thought that they were getting a lot of fence requests and a lot of people are doing this style where it’s nothing but flat board.
Board Member Mallery noted that the fence would have to be dense to be able to cut down on the lights from the road.
PRE-APPLICATION PRESENTATION
PHILLIP CHRISTOPHER– 350 Mettacahonts Road, 2’ Area Variance for 6’ high privacy fence in the front yard, Tax Map #68.16-1-11, R-1 Zoning District
Board Member Dawson questioned if the applicant considered a 5’ fence with 1’ of lattice at the top? It helps to break up the lines and makes it more appealing.
Mr. Christopher noted that he would consider that- having the fence at least 5’ high and having 1’ of decorative lattice at the top.
Board Member Mallery wondered if the applicant did a 4’ high stockade fence with 2’ of lattice at the top would they even need to be in front of the Board?
Mr. Christopher would want the fence to be at least 5’ in height and then 1’ of lattice at the top.
Board Member Dunn was curious why they were having a discussion on the style of the fence? He didn’t see where the style was addressed in the Code. He just saw where the Code stated height stipulations. Was he missing something?
Chairperson Haugen De Puy noted that he wasn’t missing anything, but they were just giving suggestions.
Board Member Dunn wanted to make sure if that had any bearing on this meeting? This meeting was about 6’ requested fence and only having a 4’ fence allowed by the Code? He didn’t see anything about style in the Code. If the applicant wanted to put up a chain link fence or a stockade fence or a plated steel fence he thought that was the applicant’s prerogative.
The Town Attorney noted that one of the questions in considering a variance is what effect it will have on the neighborhood. So, that is where you can bring style in – as one of the conditions.
Board Member Dunn noted that he didn’t see anything in the statute on style.
Town Attorney Christiana noted that the ZBA had to make sure that it fits in with the neighborhood. That’s part of State Law.
Chairperson Haugen De Puy noted that it fell under the criterion of ‘undesirable change to the neighborhood or nearby properties’.
Board Member Dunn questioned who’s definition of ‘undesirable’ were they to go by?
Board Member Dawson stated it was usually the neighbors.
Board Member Dunn noted that the applicant supplied many letters from his neighbors saying they didn’t have any problems with the fence. So, once again he was asking why they were having this discussion?
Board Member Mallery noted that at this point maybe the Board should go over the balancing test that the ZBA has to consider. One of those things being a substantial change.
PRE-APPLICATION PRESENTATION
PHILLIP CHRISTOPHER– 350 Mettacahonts Road, 2’ Area Variance for 6’ high privacy fence in the front yard, Tax Map #68.16-1-11, R-1 Zoning District
Town Attorney Christiana didn’t think that a Court would find this variance request as substantial.
Mr. Christopher noted that he saw a similar fence on Tow Path Road that was very nice.
Board Member Dunn noted that it was stated that there has been a large amount of variance requests for fences. If the Town is having a large amount of requests, perhaps the Code needs to be tweaked. He questioned where the 4’ requirement came from.
Chairperson Haugen De Puy noted that it was part of Town Law and she didn’t know where it originated from.
Board Member Dunn had contacted Councilman Cilenti to ask him where the 4’ requirement came from and they spoke at length about it because he believed that his Wife Diana Cilenti was on the Code Development Committee. Board Member Dunn questioned the way this blankets everything and there are obviously exceptions and the immediate one that would come to his mind would be if someone was on a corner lot. If someone was on a corner- that’s where the Highway Superintendent should have a say. He questioned if an individual wants to put up a fence in their front yard, if they aren’t in the road right of way, what does the Highway Superintendent have to do with it?
Chairperson Haugen De Puy noted he would give input in regards to road maintenance – like snow plowing.
Town Attorney Christiana noted that it also had to do with visibility if it were on a curve or something.
Board Member Dunn agreed with that, but if it didn’t meet that criterion, he asked again what did the Highway Superintendent have to do with it if it wasn’t in the road right of way because it wasn’t community property? He could think of a variety of ways- for example- what if someone was down in a hole and the road was higher. Why would they be restricted to a 4’ fence when the road grade was 10’ higher than the lot? He thinks this should be attacked from an opposite direction than what they are coming from instead of putting a blanket ordinance over everything. He knew that they weren’t going to change this tonight, so they were just putting this up for discussion.
Town Attorney Christiana noted that this was exactly what this Board was here for- there are always going to be exceptions.
Board Member Dunn was just coming from the opposite side here where an individual wants to do something that isn’t affecting public safety- the road- line of site – visibility and that sort of thing. He takes umbrage with other folks dictating to any person and these individuals in this case – this isn’t a gated community- it’s Mettacahonts Road.
Chairperson Haugen De Puy noted that what Board Member Dunn had to understand was that the law as it is written now is the law. You have to give deference to the law.
PRE-APPLICATION PRESENTATION
PHILLIP CHRISTOPHER– 350 Mettacahonts Road, 2’ Area Variance for 6’ high privacy fence in the front yard, Tax Map #68.16-1-11, R-1 Zoning District
Board Member Dunn noted that he started his point by saying that maybe this wasn’t the appropriate time, but since they were nice enough to listen and they opened up this can, he thought that it should be left open. Obviously this is for another meeting and he agreed that a law is a law- but keep in mind that maybe it’s not the best one. He will definitely pursue it.
Chairperson Haugen De Puy agreed and noted that this was something that could definitely be pursued with the Town Attorney in training.
The reason that Board Member Dunn brought this up was because he thought that it was an important piece of information to have in the decision for these folks. If no one can tell him where 48” came from for a fence, that told him right there that they don’t have a very good leg to stand on. If someone could say, what the reason was.
Chairperson Haugen De Puy noted that it was the law.
The Secretary noted that they did change the side yard fence heights.
Board Member Dawson noted that when they did the Comprehensive Plan there wasn’t a big discussion on front yard fence height, so they just left it alone.
Chairperson Haugen De Puy asked that they did table this part of the discussion as there was a training after this meeting with the Town Attorney and that was a more appropriate time to discuss this.
Town Attorney Christiana noted that fences were one of the biggest zoning topics.
Chairperson Haugen De Puy explained what an area variance entailed. It’s a balancing test. The ZBA has to determine whether the request can be achieved by other means, the ZBA has to determine if the application will cause an undesirable change in the neighborhood character or nearby properties. Whether the request is substantial and it’s pretty much been set forth that 2’ is not substantial in this instance. Whether the situation is self created. Whether the request will have an adverse impact on the environment. Those are the 5 things that this Board must consider along with the fact that when they vary the law for the property and say that the applicant may have a 6’ fence that the variance goes with the land and it goes there forever with the property.
Board Member Mallery questioned if there was any type of a zoning requirement on hedges? They could have a 10’ hedge row?
Town Attorney Christiana confirmed that there was no zoning requirement for hedges.
Board Member Mallery noted that he was dealing with the issue of determining whether or not this request could be achieved by other means. He didn’t think that a hedge would work in the winter.
Board Member Dawson and Board Member Dunn agreed that it would take a considerable amount of time to grow anything that would do what they wanted.
PRE-APPLICATION PRESENTATION
PHILLIP CHRISTOPHER– 350 Mettacahonts Road, 2’ Area Variance for 6’ high privacy fence in the front yard, Tax Map #68.16-1-11, R-1 Zoning District
Board Member Dawson noted that the area between the house and the road is small and the fence where he wants it to be is already going to cause him to lose quite a bit of land between the house and the road.
Board Member Mallery noted that this is different from a previous application that they saw before them because this house is right on the road and the fence would block the head lights.
Mr. Christopher noted that their intentions for the fence would be to probably break it up a bit and that can be done with treatment on the top of gates or treatment every 10’ on the top. There are ways to break it up.
Chairperson Haugen De Puy would still like to see a letter from Wayne Kelder, Highway Superintendent, requesting his feedback on the setback.
Chairperson Haugen De Puy noted that as far the next steps would be for the applicant to secure a letter from Mr. Kelder, Highway Superintendent, and to get an application in to the ZBA office. She questioned if the Board would like to refer this to the Planning Board for an advisory opinion?
Board Members were in agreement that this wasn’t an application that warranted an advisory opinion from the Planning Board.
Chairperson Haugen De Puy motioned to set this application for a Public Hearing on May 15, 2012. Seconded by Board Member Dawson.
Vote:
Mallery: Yes Kawalchuk: Absent
Haugen De Puy: Yes Dawson: Yes
Dunn: Yes Fischer: Yes
Motion carried.
ADJOURNMENT
Chairperson Haugen De Puy motioned to adjourn the meeting seconded by Board Member Dawson. No discussion. All members present, in favor.
As there was no further business to discuss, Chairperson Haugen- De Puy adjourned the meeting at 7:30PM.
Respectfully submitted,
Rebecca Paddock Stange, Secretary