Minutes of January 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 Acting Chairperson, Beatrice Haugen- De Puy.
Present: Absent:
Beatrice Haugen- De Puy Elizabeth Kawalchuk Cliff Mallery
John Dawson, Alternate
James Kingston
Because there was not a full Board, Alternate John Dawson was asked to join the Board.
Pledge to the Flag.
ACTION ON MINUTES
Board Member Dawson motioned to accept the May 10, 2011 minutes. Seconded by Board Member Kingston. No discussion.
Mallery: Yes Kawalchuk: Absent
Haugen De Puy: Yes Dawson, Alt: Yes
Kingston: Yes
Motion carried.
ANNOUNCEMENTS
Chairperson Haugen- De Puy noted that the past Chairman, Brian Drabkin, has been elected as a Councilman and therefore is no longer on the ZBA. She has served on the ZBA for 20 years and has been appointed as the acting Chairperson until the Town Board makes a formal decision.
Chairperson Haugen- De Puy requested that the Secretary write a thank you letter to Mr. Drabkin for his years of service to the ZBA.
NEW APPLICATION PRESENTATION
JOHN BOWMAN– Area Variance required for proposed two dwellings on lot size less than 6 acres in an AR-3 District, Whitelands Road, Town of Rochester Tax Map #: 69.1-2-8.11 and Town of Marbletown Tax Map #:69.1-6-4.
Mr. and Mrs. Bowman were present on behalf of their application.
Chairperson Haugen- De Puy explained that the applicant has 4.289 acres in total. 1.2 in Rochester and 3 in Marbletown—This is one lot divided by two towns. He is in an AR-3 District in Rochester which means that he needs 3 acres per dwelling.
NEW APPLICATION PRESENTATION
JOHN BOWMAN (cont’d)– Area Variance required for proposed two dwellings on lot size less than 6 acres in an AR-3 District, Whitelands Road, Town of Rochester Tax Map #: 69.1-2-8.11 and Town of Marbletown Tax Map #:69.1-6-4.
Mr. Bowman explained that he and his wife and his mother in law wanted to build a modest 3 bedroom home with a garage attached by a breezeway with an apartment over the garage for his mother in law. He had a map of the Marbletown section of this property showing several 2 acre lots. If he is allowed to proceed and build the second dwelling this would not have an adverse effect on density. This property is actually part of a subdivision.
Board Member Dawson noted that he had helped to lay out this subdivision. There used to be a road that came out the other end of this property, but has since been abandoned by the town. This lot is larger than the others in the subdivision because there was a large unbuildable wet area on the property.
Mr. Bowman noted that he originally had the house laid out in part of Marbletown and Marbletown said to build the house in Rochester to forego two different tax bills for the home.
Chairperson Haugen- De Puy questioned what was on the property? And when was it purchased?
Mr. Bowman noted that it is vacant with a driveway. They purchased it in March 2011.
Board Member Dawson questioned how the garage would be set up. Would it be attached? Would it have separate entrances? It was Board Member Dawson’s understanding that a separate entrance is what triggered the separate dwelling classification.
The Secretary had just spoken with the Code Enforcement Officer on this date and his determination was the second kitchen was what constituted a separate dwelling.
Mr. Bowman noted that the garage would be connected to the house by a breezeway. He didn’t really believe that this was a separate dwelling—it was like a Mother-Daughter.
Board Member Dawson explained that we didn’t have a definition for a Mother-Daughter in our code. The Town has multifamily dwellings or two family dwellings that they go by. The applicant would need 6 acres per the code to build two dwellings in an AR-3 District.
Chairperson Haugen- De Puy noted that the applicant had +/-1.2 acres in Rochester and +/-3 acres in Marbletown.
Board Member Dawson noted that the whole buildable acreage of the parcel would most likely end up being used because of the wet area on the property. He didn’t see a threat if the applicant was approved to build in Rochester for them to develop the Marbletown side. He questioned if the applicant had spoke with Code Enforcement Officer Jerry Davis about this situation. Board Member Dawson recalled with the Comprehensive Plan was being redone that they wanted to try and provide for situations like this for elderly parents. The bottom line is that two dwellings need 6 acres in this district.
Mr. Mallery questioned if there was anyway to incorporate the separate apartment into the house so there wouldn’t be two separate dwellings? Could they share a kitchen?
NEW APPLICATION PRESENTATION
JOHN BOWMAN (cont’d)– Area Variance required for proposed two dwellings on lot size less than 6 acres in an AR-3 District, Whitelands Road, Town of Rochester Tax Map #: 69.1-2-8.11 and Town of Marbletown Tax Map #:69.1-6-4.
Mrs. Bowman believed that this was really a bonus room and not an apartment. It’s a bonus room above the garage that would be 400sf.
Chairperson Haugen- De Puy noted that she requested some guidance from the Town Attorney, Mary Lou Christiana as this application was split by two Towns and how the variance gets addressed—ie—whether we are looking at a variance request of 4.8 acres if we are just able to consider the acreage in Rochester or a 1.71 acre variance if we are able to consider the acreage in both Towns. Chairperson Haugen- De Puy read letter from the Town Attorney dated January 13, 2012 as follows:
“I have researched the issue of this application for an area variance in which the property in question straddles the town line with approximately 1.5 acres in the Town of Rochester and approximately 3.0 acres in the Town of Marbletown. The question has arisen as to what portion of the property should be considered for the purpose of determining the extent of the variance.
I find neither statute nor case law addressing this situation. I, therefore, suggest that you can use the entire 4.5 acre parcel in considering whether to grant the variance, but only on the condition that the applicant is willing to place a covenant in his deed, to be recorded in the Ulster County Clerk’s office stating that the property cannot be developed beyond the 2 proposed residences, absent the consent of the Town of Rochester Planning Board. The decision should state that the covenant will need to be reviewed by the Planning Board attorney and that no building permits shall be issued until such time as the Planning Office is presented with a copy of the recorded document.
If the applicant is not willing to do this the Town should only consider the portion of property lying within the Town of Rochester in making its determination.
Please note that by offering this advice I am making no recommendation as to whether the variance should be granted, whether or not using the entire parcel area in your deliberations. The applicant still bears the responsibility of proving that he meets all of the criteria required for the grant of an area variance and the application must be reviewed in that light.”
Mr. Bowman had no problems with conditioning his deed as advised by the Town Attorney.
Mrs. Bowman still had a problem with considering this a separate dwelling. She believed that it was really a bonus room.
Board Member Dawson noted that in his honest opinion he thought that the applicant should go back to the CEO to see if they could work something out. He didn’t see how this met the ZBA criteria for a variance.
Chairperson Haugen- De Puy agreed noting that the ZBA could not consider personal circumstance as a part of their decision making.
NEW APPLICATION PRESENTATION
JOHN BOWMAN (cont’d)– Area Variance required for proposed two dwellings on lot size less than 6 acres in an AR-3 District, Whitelands Road, Town of Rochester Tax Map #: 69.1-2-8.11 and Town of Marbletown Tax Map #:69.1-6-4.
Mr. Bowman believed that this would stay consistent with the density in the area and like his wife said that this was really just a bonus room for his mother in law. He knew other Towns that were addressing these types of issues in these rough economic times.
The ZBA understood Mr. Bowman’s argument, but this Town didn’t have any differences for dwellings based on who lived there. The applicant could say it was for family, but that wasn’t enforceable. The ZBA couldn’t look at personal circumstance.
Chairperson Haugen- De Puy also noted that this is a self created hardship as the new Zoning in Rochester went into effect in 2009 and Mr. Bowman purchased the property in 2011.
Mr. Bowman understood this, and he knew there were different ways to go about this… he could just do it and not tell anyone, but he wanted to be honest about it and do it the right way.
Chairperson Haugen- De Puy suggested trying for a variance in Marbletown as he had more property in Marbletown and they may look at it differently.
Mr. Bowman noted that he worked with Marbletown initially and they told him to go to Rochester.
Board Member Kingston questioned if Mr. Bowman was aware of the acreage requirements for a two family dwelling when he purchased the property?
Mr. Bowman stated that he was aware. He also noted that there were 2 variances in Marbletown one for density and one for age of structure that they had told him he could apply for.
Mrs. Bowman noted that they would rather be in Rochester for tax purposes. The Marbletown portion of their tax bill was considerably higher than the Rochester.
At this time Chairperson Haugen- De Puy read the balancing test from the Zoning that the ZBA uses in decision making. She noted that if approved the Board has to grant the minimum variance necessary and may impose reasonable conditions.
Board Member Mallery noted that this was self created. The applicant purchased the property after the Zoning Code went into effect and stated that he was aware of the requirements for a two family dwelling in that district. The applicant should try to accomplish this without a variance.
Board Member Kingston stated that this request was substantial. This type of request was something that was similar to other properties. Once they okay something they are setting a precedent for future applicants and have to be very careful.
NEW APPLICATION PRESENTATION
JOHN BOWMAN (cont’d)– Area Variance required for proposed two dwellings on lot size less than 6 acres in an AR-3 District, Whitelands Road, Town of Rochester Tax Map #: 69.1-2-8.11 and Town of Marbletown Tax Map #:69.1-6-4.
Board Member Dawson noted that he would go and talk with the CEO to see what he would require to work. If there is anyway that this can happen without a variance and by the Zoning the CEO would know. As this stands he doesn’t see it being feasible for a variance.
Chairperson Haugen- De Puy questioned if the Board felt this was enough information for a public hearing?
The Board has established that it is a substantial request and it was self created.
Board Member Dawson also noted that the intent of this neighborhood was to keep it low density and AR-3 is a low density district. The neighborhood isn’t completely developed yet and if someone else comes in with a similar request and they’d already granted this variance it would put the ZBA in a tough situation.
Chairperson Haugen- De Puy noted that based on the discussion by the Board with the applicant, she would advise the applicant to go and speak with the CEO to see if there was any other way Mr. Bowman could do this.
Board Member Dawson agreed and noted for the applicant to tell the CEO what his goal was and how he could accomplish it without a variance.
Chairperson Haugen- De Puy agreed with Board Member Dawson noting that it didn’t sound like the ZBA was leaning in a favorable direction to this application and therefore it might not be beneficial for the applicant to pursue it. She suggested again for the applicant to speak to the CEO and the applicant could decide how he’d like to proceed based on that conversation.
OTHER MATTERS:
Chairperson Haugen- De Puy noted that the prior Chairman of the ZBA, Brian Drabkin had proposed to the Town Board for the ZBA to hold quarterly meetings. She didn’t feel that this was fair to applicants. It was easy enough to cancel a meeting if they had no business. The ZBA and Planning Board advertised their 2012 schedule in the Shawangunk Journal already.
Board Member Kingston agreed with Chairperson Haugen- De Puy
Chairperson Haugen- De Puy also noted that Mr. Drabkin has also proposed to the Town Board the following fee changes for the ZBA:
Current Fees:
Area Variance/ Use Variance/ Appeal of CEO Determination/ Code Interpretation: $50.00
Proposed Fees:
Area Variance/ Use Variance: $150/$200
Appeal of CEO Determination: $200 (refunded if successfully appealed)
Code Interpretation: $50.00
OTHER MATTERS (cont’d)-
Chairperson Haugen- De Puy didn’t find the proposal to be fair to applicants.
Board Members agreed with the Chairperson.
Chairperson Haugen – De Puy questioned if Board Members wanted to write a letter voicing their opinion on the fees and meeting dates.
Board Members didn’t see a reason to as they weren’t asked for a response. They would just leave everything as it was.
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 7:50PM.
Respectfully submitted,
Rebecca Paddock Stange, Secretary