ZBA Minutes Nov. 2012 | Town of Rochester

MINUTES OF November 20, 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

Charlie Fischer, Alternate

Also present:

Rebecca Paddock Stange, Secretary.

Because Mrs. Kawalchuk was absent, Chairperson Haugen De Puy asked Alternate Fischer to join the Board.

ACTION ON MINUTES

Mr. Dawson motioned to approve the July 17, 2012 Minutes. Seconded by Mr. Dunn. No discussion.

Vote:

Haugen- De Puy, Chairperson- Yes Mallery, Vice Chair- Yes

Dunn- Yes Dawson- Yes

Kawalchuk- Absent Fischer- Yes

Mr. Dawson motioned to approve the October 16, 2012 minutes with the minor change that Mrs. Kawalchuk’s attendance be revised to reflect that she was not in attendance at the meeting. Seconded by Mr. Fischer.

Vote:

Haugen- De Puy, Chairperson- Yes Mallery, Vice Chair- Yes

Dunn- Yes Dawson- Yes

Kawalchuk- Absent Fischer- Yes

PRE-APPLICATION PRESENTATION

SCOTT MACSCOTT– multiple setback variances needed for addition to existing dwelling, 24 Blevins Road, 59.7-2-57, R-2 Zoning District. (This is an undersized pre-existing lot, therefore the rear and side yard setbacks are 20’ and the front yard setback is 30’.

Mr. MacScott was present to discuss his pre-application presentation.

Chairperson Haugen De Puy noted that Mr. MacScott was present this evening for multiple setback variances needed for addition to existing dwelling, 24 Blevins Road, 59.7-2-57, R-2 Zoning District. This is an undersized pre-existing lot, therefore the rear and side yard setbacks are 20’ and the front yard setback is 30’.

PRE-APPLICATION PRESENTATION

Mr. MacScott noted he had a house and he was putting on two extensions onto the side and back. He didn’t have permits for any of this and that is something that he would have to get later on. The one extension that went off to the side—the corner of it is over the property line by a couple of inches. He noted that the portion on the neighbor’s property would have to be taken away.

Chairperson Haugen De Puy questioned if this was an existing structure that was done already? Were the changes on the site plan that was submitted proposed or existing?

The applicant responded that the side addition is completed and the one in the back is not completed.

Chairperson Haugen De Puy clarified that the side addition was the one that extended to the neighboring parcel?

The applicant responded correct. He noted that from the corner of the original house to the property line is 4’. If you measure from the pillar its 3’ to the property line and that’s the structure that he bought many years ago. On the other side it’s about 7’ to the property line.

Mr. Dawson recalled that the land was sloping?

Mr. MacScott noted that very little of the land was flat.

Chairperson Haugen De Puy questioned if Mr. MacScott had a property survey?

Mr. MacScott did not.

Chairperson Haugen De Puy questioned if the applicant had anything to give him guidelines of the property as it exists- no survey?

Mr. MacScott never got a survey.

Chairperson Haugen De Puy questioned how long the applicant owned the property.

Mr. MacScott answered 10 years. He couldn’t recall who he purchased the property from.

Chairperson Haugen De Puy was wondering if the applicant had clear title to the property?

Mr. MacScott answered yes. He did get title insurance. There are posts in the ground. That’s how he is able to see and measure.

Mr. Dawson questioned how big the lot was?

Mr. MacScott answered that it was .25 acres.

Mr. Dawson noted that he could see post to post?

PRE-APPLICATION PRESENTATION

Chairperson Haugen De Puy wanted to clarify that the applicant could actually see the posts prior to building this addition?

Mr. MacScott answered yes.

Chairperson Haugen De Puy didn’t mean to sound condescending, but she had to ask why the applicant would build over the property line if he knew where the line was?

Mr. MacScott noted that it was pure stupidity. He went up to build up to the property line and put a mark on the ground. Later on when he drove the post hole- he drove it right on the mark which was right on the line.

Mr. Dawson questioned how the neighbors felt about this?

Mr. MacScott answered that he has only spoken to the owner once and that was just last week. He apologized profusely. In the beginning she asked that he move it and Mr. MacScott said no problem. This was in the Spring time. She asked that it be moved by the winter. He typically works for most of the spring- so he wasn’t around, but he did get a post hole made a new one where he would actually put it to support the structure for after he cuts off the part of the house that is on the neighbor’s parcel. Right now his corner is still over the line. Once he started drilling the new hole, he received a stop work order from the Code Enforcement Officer.

Chairperson Haugen De Puy noted that he also extended the rear of the house- was that completed or proposed?

Mr. MacScott noted that it has a roof and a wall in the back, but the two sides are open. He took the stop work order literally and stopped.

Chairperson Haugen De Puy questioned the applicant that even though he knows now that he would need all of these variances and the work isn’t completed—was it still his intention to complete the rear addition?

Mr. MacScott noted that he did not have to. The reason why he started the new construction in the back was to aid the foundation of the house. The foundation of the house- instead of having a foundation going around it, the main posts or beams holding it up were not to code. The structure was built in the 1950’s. And so he placed a complete beam on one side and in the back. He couldn’t dig underneath to do it, so what he did was put in a foundation in the back and gave the other beam support. It’s better for the house if part of the new extension stays there.

Mr. Dawson questioned what the dimension was from the rear to the line.

Mr. MacScott noted it was about 8’.

Mr. Dawson noted that the new ‘frost wall’ or whatever you would call it is now 4’ from the rear line.

Mr. MacScott answered yes. He already poured concrete and also put a diagonal beam going down into the poured concrete to shirr up the walls.

Mr. Dawson questioned if the foundation walls that were put in—did they meet code?

PRE-APPLICATION PRESENTATION

Mr. MacScott stated yes. He went down 3 or 4’.

What bothered Chairperson Haugen De Puy the most was that the applicant did not have a survey. She didn’t know how the Board could deal with that. It would seem to her that he wouldn’t have this problem in some way if he had a survey.

Mr. Dawson didn’t think a survey would have mattered. He had the line to mark and he drilled right on the line- so survey or no survey he still would have done it. The question to him was setbacks.

Chairperson Haugen De Puy questioned what the purpose of the side addition was?

Mr. MacScott noted it was a bathroom.

Chairperson Haugen De Puy questioned what was in front of the building?

Mr. MacScott noted that as soon as you walk in is the mudroom. Then you turn right and that’s the living room. Then the second half of the house is the library, kitchen, then bedroom.

Mr. Dawson noted that this original building didn’t meet setbacks and couldn’t meet a setback. It was already non conforming. There was no way you could do much of anything without being in violation. He may have been better off in coming in before starting the work and it probably wouldn’t have been an issue. He’s in the woods, under cover and non conforming.

Chairperson Haugen De Puy noted that the applicant still had to meet certain setbacks.

Mr. Dawson noted that if it was changing the detriment of the neighborhood and if you have one of those lots that you just can’t do anything with—those things can be waived as far has he was concerned. But as soon as you cross the property lines you were in a whole new territory.

Mr. Mallery questioned if you could see the neighboring house from where the applicant lived.

Mr. MacScott said in the winter they could see each other.

Chairperson Haugen De Puy questioned if the applicant knew how many acres the other property owner owned.

Mr. MacScott believed it was 3 acres and it went on both sides of him and kind of enveloped him.

Chairperson Haugen De Puy questioned if the applicant had given any thought to purchasing something that would give him more land and he could try and fix his problem that way.

The applicant stated that he wasn’t against purchasing land from them if they wanted to sell them.

Chairperson Haugen De Puy noted that would be a start.

Mr. Dawson questioned why he didn’t build in the front? He knew it was sloped.

PRE-APPLICATION PRESENTATION

Mr. MacScott noted that the front of the house is already about 4’ up off of the ground.

Mr. Dawson noted that however this is looked at, virtually to usually get something like this to pass and at the Public Hearing the neighbors would have something to say about it. If the applicant were to come here in the beginning to do this the ZBA would ask for a letter from the neighbors saying they were okay with building right on the property line and that would be in the applicant’s favor.

Mr. Mallery noted that in this case there would be only one neighbor to consider.

Mr. Dawson noted it was something the applicant might want to look into. Get a letter saying it was okay if he built close to the property line. Their input is weighed heavily.

Mr. Dunn questioned what brought Mr. MacScott to the ZBA now? How did he skip the preliminary steps of getting a building permit?

Mr. MacScott noted that it kind of organically happened. He was more focused on doing. This is his first house and he’s never done anything before.

Mr. Dunn questioned if Mr. MacScott was aware that he needed a building permit?

Mr. MacScott noted that when he started and he asked the neighbor in the back- his comment was, ‘I doubt that anyone ever got a permit to do anything with that house’. So, it was kind of Mr. MacScott’s liaise fair attitude that if no permit has ever been needed to do work on the house before- than he didn’t need one. And he was more concerned with solving the problems of the house to make it a better house.

Mr. Dunn noted that to him if its an error of omission or an error of commission- there is a difference that he didn’t intentionally not deal with getting a building permit. He just wasn’t aware that there was a process. How did the applicant find out that there was a process?

Mr. MacScott noted that he received a stop work order.

Mr. Dunn questioned how the Code Enforcement Officer finds out about this?

Mr. Dunn speculated that it was probably a neighbor.

The Secretary was aware that it was brought to the CEO’s attention by someone.

Mr. MacScott noted that the neighbor in the back asked if he could have the work done by spring time. He’s actually only spoken to her son and he didn’t communicate very well that he works pretty much 100 out of 120 days in the Spring and that in reality July was when he’d really be able to get into it and he didn’t and it was his fault for not communicating better. He should have spoken with her directly. They had asked for him to remove it by April and he said he’d do it. Then he wasn’t able to do it until July. It was May that he came in and did the work. Then in July is when he received the Stop Work Order.

PRE-APPLICATION PRESENTATION

Mr. Mallery questioned if he went to the neighbor and said that he thought that he went over the line or did she alert him?

Mr. MacScott noted that he saw a string tied between the two poles from the neighbor.

Chairperson Haugen De Puy questioned what the applicant’s occupation was that he was busy for 100 days out of 120?

Mr. MacScott is a tour guide- he takes students on educational field trips mostly in Washington DC.

Mr. Dunn questioned if the addition in the back was 7’ from the line or the original house was?

Mr. MacScott answered it was the original house that was 7’ from the rear line.

Chairperson Haugen De Puy noted that was probably okay for that time frame in the 50’s when it was built.

Mr. Dawson questioned if the side addition had walls and a roof?

Mr. MacScott answered, yes- it was pretty much done.

Chairperson Haugen De Puy questioned what the proposal was for taking the structure off of the property? Just to put up a pillar?

Mr. MacScott answered yes. To put up a new support and cut away that corner basically. The whole structure was to be a bathroom.

Mr. Mallery questioned if there was a bathroom in the house besides the addition that was built?

Mr. MacScott noted that the old bathroom was now part of the bedroom.

PRE-APPLICATION PRESENTATION

Chairperson Haugen De Puy noted that in Section 140-42 of the law had something to do with non conforming uses. She read:

§ 140-42 Changes and Additions.

Excepting for activities provided for above and accessory uses, all changes and additions to non-conforming uses shall be considered Special Uses, and permits for alterations, changes in use or additions shall be granted only after a determination by the Planning Board that the following conditions have been, or will be, satisfied.

A. There shall be no expansion in the amount of land

area outside a non-conforming facility (outdoor

area) used for storage of materials, supplies and/

or products, except as provided herein.

B. Where the non-conforming activity is one which

necessarily results in the storage of large

quantities of material, supplies or products outside

(such as a lumberyard), the Planning Board may

require dense evergreen screening sufficient to

shield all such materials from the view of adjacent

landowners and/or the traveling public.

C. No addition, change or expansion of a nonconforming use shall further violate setback and/

or height regulations of the district in which it is

located. Moreover, no change of use shall be to

one of a more intensive classification (e.g. one

with more employees, more traffic, more parking

or more off-site impacts). A non-conforming retail

enterprise could be converted to a barber shop, for

example, but not to an industrial use

The Secretary noted that this section was for a Non Conforming Use- not structure. The use of the property was that of a residence and conformed to that district. This was a non conforming structure as it didn’t meet setbacks already.

The Chairperson agreed. That section seemed to be for the actual use. She thought that 140-39 & 40 might be more relevant. They should consult the Town Attorney on how this would be applied.

Mr. Dawson recalled that the applicant could encroach no farther than he already did. You can’t make it worse, you can go further, but not violate the setback further. This was how he recalled this because it was non conforming.

Chairperson Haugen De Puy questioned how long the applicant owned the house before they decided to put the wall in?

Mr. MacScott noted that this all started in different stages and what not- so he would say this started between 2 and 5 years ago. He had to excavate dirt to start.

PRE-APPLICATION PRESENTATION

Chairperson Haugen De Puy questioned if § 140-41 Restoration, Reconstruction or Re-establishment.

A. If any non-conforming use, building or structure is damaged, it may be restored or reconstructed by building permit issued within five years of the date of the damage.

B. A non-conforming use, building or structure may be re-established within a period of five years after it has been discontinued or vacated. She didn’t think this applied because it wasn’t vacated. She was just trying to come up with a way to apply this law so the applicant had something to back him in getting a variance.

Mr. Dawson felt that the only thing that could happen was that the applicant couldn’t further encroach on the existing non conforming setback.

Chairperson Haugen De Puy questioned if the wall needed to go 8’ to support the foundation?

Mr. MacScott noted that it did. He would be lucky if he cut it back to the 3’ that the diagonal supports wouldn’t be affected.

Mr. Dawson felt that they should ask Michael Baden if this was the only way for this to proceed.

Chairperson Haugen De Puy questioned if the Board should request some sort of document for proof. Mr. Davis, CEO was the only person who qualified to tell the Board if moving this back will be structurally sound. It sounds like he is trying to give the building better support.

Mr. Dawson noted that he can’t make the problem worse. Within the code he could trim it off at the same distance that it already encroaches.

Mr. Dunn noted that the rear one is the easy part to deal with. What about the part that is already built?

The Secretary believed that it had to be looked at as if it wasn’t built. She didn’t believe that the Board could take the fact that it has already been built into consideration when looking at this to consider the variance.

Chairperson Haugen De Puy questioned how they did that when they were concerned with the fact that it was over a property line.

Mr. Dunn didn’t think that was true. He didn’t like those absolutes. There are many other possibilities. That is a wrong statement that it “has to come off”. It may have to come off, but there are solutions. He didn’t want to make it so absolute.

Chairperson Haugen De Puy thought that this was why the applicant should approach the other property owner for land as a first step.

Mr. MacScott questioned what he should be asking them for.

Mr. Dawson noted for him to ask for them to either sell him some land or make some sort of deal.

The applicant asked if it was like a right of way?

PRE-APPLICATION PRESENTATION

The Secretary noted it was called a lot line adjustment where you physically purchase property from them and move their lot line.

Mr. Dawson noted that was only if he wanted to keep that corner on. If he just wanted to be closer to the line, he could get a letter from the neighbors saying they were okay with it. There’ s two things—try to obtain a portion of land or get a letter.

Chairperson Haugen De Puy noted that it bothered her that they didn’t have a survey to look at. She would like to know from an expert’s point of view just how close the applicant was proposing the structure to be to the line. Not a guesstimate. And she wasn’t saying that it wasn’t a good guesstimate, but normally they have a survey to go by so when the ZBA looks at it, they can see on paper what the exact measurement is.

Mr. Dawson noted that he could just submit a plot plan knowing that it was to scale.

Chairperson Haugen De Puy noted that the Board needed a document that was just more than the applicant’s drawing on paper because he’s already crossed someone’s property line because he wasn’t sure.

Mr. Dawson noted that he was sure. He said he put a stake on the line and the house went over the line.

Chairperson Haugen De Puy wanted something for the Board to be able to hang its hat on legally.

Mr. Dunn thought you could hang your hat on the stakes. We weren’t talking 80 acres here.

The Chairperson knew this, but her concern was that it was already over the line and the lack of knowledge of the fact that he even needed to do this. It wouldn’t have been brought about had he not gone over the line.

Mr. Dunn noted that he would have drilled the hole in the same place even if he had a survey. He knew where the line was, it was just how he drilled the hole. He made a mistake. Instead of the edge of the hole being on the line, he put the center of the hole on the line.

Chairperson Haugen De Puy understood—that extended the building over the line.

Mr. Dunn stated that a survey wouldn’t have changed anything.

Chairperson Haugen De Puy didn’t agree.

Mr. Dunn noted that the owner is saying that a survey wouldn’t have mattered. The bottom line is that a string between the two stakes- the Board could measure how far the corner was—if it was 3 or 4”. It really didn’t matter. The 3’ is what really matters, so its really a moot point.

Mr. Dawson agreed with this. He thought what needed to be done first was if the applicant just wanted to take it off or approach the neighbor about a lot line adjustment.

PRE-APPLICATION PRESENTATION

Mr. Dunn questioned if they could break this into two parts. It looks like there are two problems. The existing bathroom that is already built and is over the property line. Problem 2 is the new extension as labeled. Problem 1 is the bathroom is complete. Problem 2 has some concrete footings, is 8’ back and has a roof on it and a floor. Problem 2 can be rectified by doing angles and can be made to conform to the existing lot setbacks of the existing non conforming structure.

The applicant answered that could be done.

Mr. Dunn felt that problem 2 was solved. Would everyone agree?

Mr. Dawson felt it was up to Mr. Davis CEO, but that it sounded good to him.

Mr. Dunn went back to problem 1- the bathroom that was already built. What was the consensus on how that would be solved? They had something that was built and the portion that hung over was about 5” over according to the applicant. The question is was he going to have to move it back to the 3’ to conform to the original non conforming structure or was it possible that he nipped the corner off and could be on up to the edge of the property line.

Mr. Dunn noted that technically—no you can’t build right up to the line—but its already there is the problem.

Mr. Mallery noted that the applicant already had a non-conforming setback and he was extending that. He didn’t think it was a good thing for the applicant to be able to build right up to the property line—even if the neighbors were okay with it.

The Chairperson agreed.

Mr. Dunn questioned what the repercussion was.

Chairperson Haugen De Puy noted that if the ZBA allowed this applicant to build right up to the line and if someone else came in with the same problem and they don’t apply this logic to someone else—then the Board becomes arbitrary and capricious.

Mr. Mallery questioned if Mr. Dunn was thinking this way because the applicant was surrounded by the same property owner?

Mr. Dunn answered Yes.

Chairperson Haugen De Puy noted that the applicant created this himself. This is a self created hardship. Ignorance of the law does not make it okay and he has to follow the balancing test like anyone else.

Mr. Mallery questioned what the policy was on extending non conforming setbacks?

Mr. Dawson replied that it was typically not done. One of the things is that it doesn’t change the detriment of the neighborhood as all of the other homes are like that. Then its not as big of a deal.

PRE-APPLICATION PRESENTATION

At this time the Chairperson went over the criteria in which the ZBA needs to take into consideration when reviewing an Area Variance request:

whether the applicant can achieve this request by other means.
whether the application will cause an undesirable change in the neighborhood character or nearby properties.
whether the request is substantial.
whether the situation is self created.
whether the request will have an adverse impact on the environment.

The Chairperson felt that the biggest one right now was that this was a self created problem.

Mr. Dawson noted if the applicant could acquire land from the neighbor it would be the easiest way out for the ZBA.

Mr. Mallery noted that there were two solutions that were discussed tonight. One was to acquire land from the neighbor and the other is cutting off a piece of the extension. The Board didn’t care which one he did, did they?

Mr. Dawson answered no.

Chairperson Haugen De Puy believed that on both sides of the line—it should be the same amount for each setback. Otherwise how does the ZBA balance it. If they were going to allow him 3’ away from one of the property lines that he was seeking a variance for, then they should make it be 3’ on the other line.

Mr. Dawson noted that the way that the law was written was that if it was 8’ already, then he could go no closer than 8’ but he could extend it out.

Mr. Dunn agreed with Mr. Dawson. The original non conforming corner was about 7’ to the line—then the new addition needed to be 7’ from the line—on the other side it was 3’, so it should remain 3’ from the line.

Chairperson Haugen De Puy agreed that they were both non conforming setbacks, but she was trying to get away from the property line and address that issue.

Mr. Dunn thought that they were all on the same page—this was directly under 140-42.

Chairperson Haugen De Puy noted that that section might not directly to apply to this.

Mr. Dawson noted that this law was in there somewhere to cover this.

Chairperson Haugen De Puy noted that the law was unclear to her if it was pertaining to this situation. Was this section pertaining to the structure or the land?

Mr. Dunn noted that he saw it as the structure. So, if the ZBA was interpreting that correctly that the line goes with the line—the question was now—if it was possible?

Mr. MacScott answered yes.

PRE-APPLICATION PRESENTATION

Mr. Dunn noted that part of the addition that was already built would have to be significantly shaved off to meet the existing non conforming setback. That would take care of that. And the same on the other side.

Mr. Dawson noted that the way this was written was to the furthest point of the building which could be the eve, gutter or foundation or steps. If the eve sticks out further—than that’s where he should be measuring from.

Mr. MacScott answered that it did, and he didn’t take into account for that.

Chairperson Haugen De Puy noted that she was curious what the Town Attorney’s take was on this. Because they were using his property angle…

Mr. Dawson interrupted and noted that they could just ask Michael Baden. He probably knew what page of the Code pertained to this. Mr. Dawson wasn’t too quick to grab the Town Attorney for everything because they have to pay her every time they ask her a question and he didn’t see it as something that she needed to be involved in. This was a Michael Baden or a Jerry Davis, CEO question.

The Secretary noted that the Town Attorney prefers to be in on situations prior to problems arising. She would rather be consulted before the Board makes any determinations than try and fix something that wasn’t done correctly.

Mr. Dawson noted that this was the ZBA’s choice.

Chairperson Haugen De Puy agreed with the Secretary noting that she’d rather be spot on than cleaning something up after the fact.

Mr. Dawson noted that sometimes that can be too spot on. If its in the book—he thinks that Mr. Baden can point it out for the ZBA. If Mr. Dawson had his book with him, he could probably pick it out before they left. He will find it and he knows its in there.

Chairperson Haugen De Puy thought they should also consult Mr. Davis as well. She would like to know that the ZBA isn’t creating something that was going to come back and haunt them later on. Even though the ZBA might like the idea, doesn’t mean its okay and legal.

Mr. Mallery noted that they still wanted to know what the neighbor had to say about this.

Mr. Dawson noted that either way this would go to a Public Hearing no matter what.

Chairperson Haugen De Puy noted that if she personally had found out that she had extended something over on her neighbor by no matter what the distance was, she would have had it gone—there would have been no questions, she wouldn’t have waited till they found it. And once the applicant said to his neighbors that he would have it gone and didn’t and then got hit with a stop work order—that comes back to the applicant. It needed to be gone.

Mr. Mallery knew how he would personally feel if he were the neighbor… He would have an opinion about someone doing what the applicant is doing. He would really like to hear what the neighbor has to say.

PRE-APPLICATION PRESENTATION

The applicant noted that when he spoke with the neighbor, she was very nice. There was no animosity or negative feelings from her.

Mr. Dawson noted that was also when the applicant had told her he was going to move it. And he didn’t.

Chairperson Haugen De Puy noted that something changed her mind.

Mr. Dunn noted that if that is indeed the way this came about it doesn’t matter. It doesn’t have any bearing on this. All that really matters is what the law says and how they can correct the problem. It would be nice for everyone to be amicable, but in the end it really doesn’t matter.

Chairperson Haugen De Puy agreed—but noted that is as long as what the ZBA does is in accordance with the law.

Mr. Dunn agreed.

Mr. Dawson noted that they ZBA could find out about everything they have talked about and make sure it’s acceptable.

Mr. Mallery questioned if the applicant would still need a variance to do this? What the ZBA was proposing? The ZBA still has to grant the variance even if he follows the solution being offered?

Chairperson Haugen De Puy agrees noting that the neighbor would be noticed through the public hearing.

Mr. Dunn noted that the applicant doesn’t need the neighbor’s permission. They could come in here and jump up and down—

Chairperson Haugen De Puy noted that the ZBA couldn’t ignore one of the criteria in their decision making. This is a self created hardship.

Mr. Dunn noted that anything that anyone does is self created. Anything that they undertake under their own ambition is by definition- self created. Absolutely its self created.

Mr. Dawson noted that if the applicant agreed to do this—then it wasn’t an issue—self creating or not—because he wasn’t encroaching any further on the already non conforming setback.

The way Mr. Dunn saw it was 140-42—it was allowed.

Mr. Dawson agreed.

Chairperson Haugen De Puy questioned if the Board would suggest that they direct a letter to Mr. Davis, CEO to ask if this is a viable action according to him? They do have the stop work order to consider.

Mr. Dawson noted that they could write a letter and pursue that avenue and they could do some research themselves. They could let the applicant if it was allowed and if it was acceptable and move on from there.

PRE-APPLICATION PRESENTATION

The applicant noted that the only reason he hasn’t taken the addition off of the neighbor’s property now was because of the stop work order.

Mr. Dawson thought that the Code Enforcement Officer would overlook that—it wasn’t working it was rectifying a situation. The applicant should ask the CEO this himself and get it done.

Mr. Dunn questioned if the applicant was clear with what the Board was suggesting as it made for a pretty strange design. Was the applicant okay with the way the Board was proposing the solution? As long as the ZBA interpreting the law correctly.

Mr. MacScott answered yes.

Mr. Fischer noted that if the applicant tries to take the addition off of the neighbor’s property—how was he going to do that without redoing the whole side? He’d have to open up the building and close it up again somehow—was the CEO going to let him do that?

Mr. MacScott noted that it would just be an interim step of just taking off the 5” that were on the neighbor’s property and then that solves the actual going over the property and then later doing the 3’.

Chairperson Haugen De Puy requested that the applicant not do any of this until he speaks to Mr. Davis, CEO. Explain that the ZBA sent him back to the CEO office to make sure what he is doing is allowable.

The applicant understood this.

Mr. Mallery noted that there were two issues—a trespass issue and a zoning issue.

Mr. MacScott noted that he will talk with his neighbor tomorrow and let her know what transpired at the ZBA meeting and see if there was a different way to go and tell her that he can cut off a bit. He was actually leaving for 2 months on Monday and would be back in late January.

Chairperson Haugen De Puy questioned if it was the applicant’s intent then that even if he were to speak with the CEO that nothing was going to happen to the building until he were to return?

Mr. MacScott answered correct.

Chairperson Haugen De Puy questioned if the applicant really wanted to go and talk with his neighbor and tell her his intentions and then not do it- again?

Mr. MacScott noted that he has not communicated very well with his neighbor and he feels responsible for that and he’d like to err on the side of actually communicating too much with her.

The ZBA noted that was up to the applicant.

PRE-APPLICATION PRESENTATION

Mr. MacScott noted that he’s only ever communicated with the woman who is the actual property owner once and that was last week. Every other time was with her son. He thinks that is the way she wants him to do it anyway. She is the actual property owner though.

Chairperson Haugen De Puy noted that she wasn’t comfortable with this situation and wanted to get the Town Attorney’s opinion on this to see if it was a viable option.

Mr. Dawson wanted to just talk with the CEO or Mr. Baden first.

Chairperson Haugen De Puy noted that the Town Attorney was the Board’s point of record for legal opinion. And to her this was legal.

Mr. Dawson answered, correct, but he didn’t think they were there yet. They were just trying to figure out where this was in the book right now. They don’t need the Town Attorney to tell them that its in the book or read into something that they don’t even look to see if its in the book and she’s just looking into NYS setback laws. He knows its in the book. He thinks they are jumping the gun on the Town Attorney.

The Secretary asked at what point the ZBA actually wanted the applicant to apply.

Mr. Dawson thought that the ZBA should get back to the applicant to see what the actual law is. That step would be the CEO, Mr. Baden, and then Mary Lou and then the ZBA could send the applicant a letter with their findings and then proceed to public hearing.

Chairperson Haugen De Puy didn’t believe that was the normal course of things. At some point the applicant needs to fill out a formal application to the ZBA. This was a Pre-app discussion.

Mr. Dawson noted that shouldn’t the applicant know what was expected of him?

Chairperson Haugen De Puy noted that the ZBA would be pre-empting a decision then.

The Secretary noted that the applicant needs to make a decision on whether or not he wants to pursue this variance or not.

Mr. Dunn thought that this was different.

Chairperson Haugen De Puy noted that this was the law and how they needed to do things. Whether the applicant’s circumstances are different are neither here nor there to the ZBA at this time.

PRE-APPLICATION PRESENTATION

Mr. Dunn questioned if the Chairperson was trying to read his mind and if she’d let him finish his thought please. He thinks what Mr. Dawson was saying was that the ZBA needed to find out some facts because this was a different situation. This was really strange. Thank goodness its strange because the ZBA wouldn’t want to deal with this all the time. Its an unfortunate set of circumstances. He thinks that he needed to do some homework on this and get the facts and go through the steps, talk with Mr. Baden, talk with the CEO, then they could talk with Mary Lou and make sure that they are making an appropriate and informed, legal decision and because it is an unusual set of circumstances, he thinks they could go back to the applicant and say – this was the direction that they were seeing and how we think its going to go—then he can tell the ZBA what he wants to do—whether he wants to apply or not. Was that fair?

Chairperson Haugen De Puy felt that it was fair—just maybe not the norm of how things are done.

Mr. Dawson noted that they should get their facts straight before the applicant pursues it. He also wanted to go through Mr. Baden and Mr. Davis instead of running to the Town Attorney just to give her money.

Mr. Dunn asked for the ZBA to direct the Secretary through the Chairperson to speak with Mr. Baden and the CEO and get back to the applicant once they get their answers.

Chairperson Haugen De Puy agreed with this and noted that they would see the applicant in February. She directed the applicant to get in touch with the office once he returned from his trip.

UPDATE ON ELM ROCK APPEAL:

Chairperson Haugen De Puy noted that the applicant’s attorney, Mr. Moriello called and set up a meeting with the Town Attorney, Mr. Davis, CEO , and Chairperson Haugen De Puy to go over the situation. The result of the meeting from speaking with Mr. Davis, CEO was that a bedroom was to be added to the main house for the care taker which would be the 6^th room of the B & B. Mr. Moriello would draw up LLC paper work to make the care taker a part owner in the B & B. Once those things were done, the application could go forward to the Planning Board. This would negate the need for their appeal.

ADJOURNMENT

Mr. Dawson motioned to adjourn the meeting. Seconded by Mr. Mallery. All members present in favor.

Since there was no further business, at 8:15PM Chairperson Haugen- De Puy adjourned the meeting.

Respectfully submitted,

Rebecca Paddock Stange, Secretary

Approved February 19, 2013