ZBA Minutes July 2012

MINUTES OF July 17, 2012 the Town of Rochester PLANNING BOARD, held at the Town Hall, Accord, NY.

 

Chairperson Haugen- De Puy called the meeting to order at 7:00 PM.
PRESENT:                                                                ABSENT:                         
Beatrice Haugen- De Puy, Chairperson                                    Elizabeth Kawalchuk                     
Cliff Mallery, Vice Chair
        John Dawson
        Troy Dunn

 

Also present:
Rebecca Paddock Stange, Secretary. Charlie Fischer, Alternate.   
ACTION ON MINUTES                       
Mr. Dawson motioned to approve the June 26, 2012 Minutes. Seconded by Mr. Dunn. No discussion.
Vote:
Haugen- De Puy, Chairperson-    Yes                             Mallery, Vice Chair-    Yes
Dunn-                                   Yes                             Dawson-                 Yes
Kawalchuk-                              Absent                                          
                                                                        
PUBLIC HEARING
DARRYLL SCRAGGS- 19 Roberts Drive, 15’ Area Variance for side yard setback for car port on an undersized lot (Section 140-43- Non Conforming lot setback is 20’), Tax Map #68.4-6-1.13, R-2 Zoning District

 

Mr. Scraggs was present on behalf of his application.

 

At 7:05 Chairperson Haugen- De Puy opened the Public Hearing.

 

Mr. Scraggs explained that he wants a carport off of the back end of his driveway. His property is 1.2 acres in a 2 acre zone which makes it an undersized lot. Most of the property is severly sloping. He had to create level areas for his house and leech field. He needs more parking as he has a small business and he uses his home for parking and its getting crowded and this is why he was hoping to put this structure up. He can’t see any neighbors from that area and he tried to contact his neighbors as the ZBA requested, but he’s been unable to. He continued to note that there is no other area to put this structure on his property. If he put it on the other side of his house he would need a 5-10’ variance and would have to build a retaining wall and he’d have to carve the back of his parcel down. The expense of doing that would just be too much.

 

Chairperson Haugen -De Puy read the applicants explanation as received June 27, 2012 into the record. She then explained the balancing test that a ZBA must adhere to when reviewing an area variance in weighing the benefit to the applicant versus the detriment and welfare of the community. The Board then went over the balancing test point by point as follows:
  • whether the applicant can achieve this request by other means.
  • The Board determined that because of the amount of extreme slopes of the land (35-45 degrees) and diminutive building footprint due to the amount of slopes, and the fact that this was an existing flat, stable location and the fact that the applicant did not have the monetary means to create an alternate location that would be stably sound and meet the setbacks, that the applicant was not able to achieve this request by other means.
  • 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 neighbourhood in that the applicant’s parcel is the largest lot in the Sylvan Glades (Worley) Subdivision which pre-dated Zoning and is full of extremely undersized lots. All of these lots face similar constraints in regards to setbacks and the homes and outbuildings on the parcels have a clustered appearance because of this.       
  • whether the request is substantial.
  • The Board determined that this was not a substantial request in relation to the diminutive useable footprint of the parcel as depicted on the applicant’s site plan and the fact that this was a non conforming undersized lot as per Section 140-43.  
  • whether the situation is self created.
  • The Board determined that this was not self created as the parcel has physical constraints that are beyond the applicant’s control.  
  • 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.
The Chairperson asked if there was anyone from the public who would like to comment? There was no one. She noted that the applicant tried to contact neighbors to get their feedback and the Town contactedbounding owners, however no one has written or come into the office to comment on the application.

 

At 7:10PM Mr. Dawson motioned to close the Public Hearing. Seconded by Mr. Dunn. No discussion.
Vote:
Haugen- De Puy, Chairperson-    Yes                             Mallery, Vice Chair-    Yes
Dunn-                                   Yes                             Dawson-                 Yes
Kawalchuk-                              Absent  

 

Chairperson Haugen – De Puy questioned if the Board felt they were ready to make a decision at this meeting?

 

Mr. Dawson felt that they were.

 

Chairperson Haugen- De Puy motioned for the Town of Rochester ZBA to be Lead Agency and for this action to be typed as Unlisted with a Negative Declaration as their will be no significant impacts. Seconded by Mr. Dawson. No discussion.
Vote:
Haugen- De Puy, Chairperson-    Yes                             Mallery, Vice Chair-    Yes
Dunn-                                   Yes                             Dawson-                 Yes
Kawalchuk-                              Absent  

 

Mr. Dawson motioned to grant the variance. Seconded by Mr. Mallery.
Discussion:
Mr. Dunn noted that he was a huge advocate for property owner’s rights, but he had a few things to discuss. The applicant states that there is no other place on the property? That’s not correct. He could build it elsewhere, it may not be financially feasible, but it is feasible.

 

The Chairperson noted that it is possible to do that that it would create an undesirable change by removing trees. That is something that gets taken into consideration.

 

Mr. Dunn noted that his point was that people build on the side of mountains all the time. He is just saying that they have to be careful because someone makes the statement that this is the only place to build- where in fact he could build somewhere else—its just not a true statement.

 

Chairperson Haugen – De Puy noted that there is also a practicality that has to be taken into consideration—this is the most practical place.

 

Mr. Dunn stated that he just wants to be technically correct. Maybe this area is already cleared and it makes the most sense. He is sure that people have done more excavation to achieve what they want than what this will require. When the next applicant comes in and has a similar situation with slopes—where does the Board draw the line?

 

The Chairperson noted that each case is considered on its own merits. Say this applicant removed a number of trees to be able to build this—what would be the ramifications of that? Would his property now have drainage issues—or his neighbors because of the tree removal?

 

Mr. Mallery felt that this case was unique because there weren’t any houses in the near vicinity of the applicants house.

 

Mr. Dunn questioned why this was a 20’ setback? This goes again to his points he has previously raised as to how the law has come into effect? There should be a good and valid reason and the Board should know it. It helps to know the intent of the law.

 

The Chairperson noted that as a ZBA, the Board is not required to look at the intent of the law, but to follow what the law is and  what their procedures are. Going over the balancing test is a part of that. Its an impact to Mr. Dunn because of his need to know, but as a Board, they just need to go with what is given and what their duties as a ZBA are. The job of the ZBA is to weigh each application on a case by case basis and part of their powers are to be able to vary laws that meet certain criteria. If anyone has a problem or questions on the law they can go and speak to the Town Board, but the Chairperson did not find it fair to the applicant for the ZBA to be debating why certain laws are what they are. This isn’t the place for it. This applicant has put in a request to have a law that exists varied and he is going through the process to try and achieve that. She suggested if anyone has questions on how laws originated that they take them up with the Town Attorney or Town Board prior to a meeting and not have this conversation in front of an applicant.

 

Chairperson Haugen De Puy added to Mr. Dawson’s motion to  approve the application based on the facts and the balancing test as previously discussed- the steep slopes in various places that make it less financially feasible and also that the area that is proposed is naturally cleared and a naturally stable area to build a carport. She propesed the following conditions:
  • The applicant shall comply with all local, county and state rules and regulations and obtain all necessary permits.
  • The structure shall be maintained and kept in appropriate condition to uphold safety, health, and welfare standards according to the NYS Building Code.  
Seconded by Mr. Mallery.
Vote:
Haugen- De Puy, Chairperson-    Yes                             Mallery, Vice Chair-    Yes
Dunn-                                   Yes                             Dawson-                 Yes
Kawalchuk-                              Absent

 

OTHER MATTERS

 

Mr. Mallery questioned in response to Mr. Dunn’s inquiry as to how the laws come into place and their intent, is there some way to require the applicants to supply the purposes behind the laws?

 

Mr. Dunn didn’t think anything else should be required of applicants.

 

ADJOURNMENT

 

Chairperson Haugen – De Puy motioned to adjourn the meeting. Seconded by Mr. Mallery. All members present in favor.

 

Since there was no further business, at 7:45PM Chairperson Haugen- De Puy adjourned the meeting.
Respectfully submitted,
                                                        
Rebecca Paddock Stange, Secretary