MINUTES OF October 16, 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. Town Attorney, Mary Lou Christiana Charlie Fischer, Alternate.
APPEAL OF CEO DETERMINATION
ELM ROCK INN, LLC-application to expand bed and breakfast with tent and expanded parking for events under Zoning Permit # 285 of 2012. Said Zoning Permit was denied by the CEO for the following reasons: Current “Bed and Breakfast” use does not comply with State & Local Codes Currently it is not an owner occupied residential dwelling.
Applicant’s Attorney, Michael Moriello, was present on behalf of the application.
Chairperson Haugen- De Puy noted that the application is before the ZBA to apple the determination of the Code Enforcement Officer (CEO). Application is to expand bed and breakfast with tent and expanded parking for events under Zoning Permit # 285 of 2012. Said Zoning Permit was denied by the CEO for the following reasons: Current “Bed and Breakfast” use does not comply with State & Local Codes Currently it is not an owner occupied residential dwelling.
Mr. Moriello started by apologizing for any confusion he may have caused on a couple of points. He did not tell Mr. Davis, CEO that the plans are to have an employee become a member of the LLC, which would make the employee an owner and the whole issue is gone about ‘owner’ occupied. Although, Mr. Davis’s other issue is that he believes that the owner has to actually reside in the main dwelling and not in the carriage house. He is taking the State Code of “owner occupied” literally.
The Chairperson questioned if the employee was not currently a member?
Mr. Moriello stated that was correct. The employee was not currently a member. He said he could draw up the paperwork at any time to make the employee a part owner. This would satisfy part of Mr. Davis’s concern. His clients want to be up front about stating that they don’t plan on living there, and this way would satisfy the one concern.
Chairperson Haugen- De Puy noted that on Page 3 of Mr. Moriello’s submittal dated October 4, 2012, it lists Hallie Ankrom as the employee to become part owner in the LLC.
Mr. Moriello noted that yes that was the intention, to Make Mr. Ankrom a part of the LLC. They wanted to get APPEAL OF CEO DETERMINATION
ELM ROCK INN, LLC (cont’d)-application to expand bed and breakfast with tent and expanded parking for events under Zoning Permit # 285 of 2012. Said Zoning Permit was denied by the CEO for the following reasons: Current “Bed and Breakfast” use does not comply with State & Local Codes Currently it is not an owner occupied residential dwelling.
the Board’s feelings on it before they made it official. It is very easy to make him a part of the LLC and they could do it at any time. He has spoken with the Town’s Attorney, Mrs. Christiana and she noted that if the Board feels comfortable with this he could draw up an affidavit.
Mrs. Christiana noted that they wouldn’t need an entire copy of the LLC- just the pages that reference who the members are and that one of them would have to be in residence and if in the future that person changes it can be a condition if approved that they would need to go back to the CEO to update that paperwork.
Mr. Dawson questioned what code this was falling under?
Mrs. Christiana noted that it fell under the NYS Building Code. She noted that the main issue is the owner occupied—and whether or not that owner was staying in the carriage house or the main house. The applicant is proposing to have the owner stay in the carriage house and the CEO doesn’t see that as fitting the definition of “owner occupied residential dwelling”. This is for the ZBA to decide if his determination is sound.
Mr. Dunn noted that the carriage house is in the Town of Marbletown as this property is split between Marbletown and Rochester. So, where does the Town of Rochester have anything to say over something in Marbletown?
Mr. Moriello noted that for the last review of this application when they were in front of the Planning Board for a ‘hotel/ restaurant’ the TORPB was Lead Agency and they made the Town of Marbletown an interested agency- but they don’t have permitting powers.
Mrs. Christiana noted that if this current application gets back in front of the Planning Board, the Planning Board would coordinate with Marbletown for their involvement. Even though this is in two Towns, it is all one piece of property. The ZBA’s job here is to determine if they consider the carriage house as part of the ‘residence’.
Mr. Moriello understood where the CEO was coming from in regards to his interpretation—he just didn’t agree with it. Mr. Davis was reading this very strictly. He then read the Town’s definition of a Bed and Breakfast:
Bed and Breakfast — A new or existing residence that is used, in the manner of a home occupation, to provide overnight lodging with breakfast as part of the consideration and involving shared bath and dining facilities as defined by the New York State Building Code; also including youth hostels.
NYS Building CODE Definition:
Bed and Breakfast Dwelling. An owner occupied residence resulting from the conversion of a one family dwelling, used for providing overnight accommodations and a morning meal to not more than ten transient lodgers and containing not more than 5 bedrooms for such lodgers
APPEAL OF CEO DETERMINATION
ELM ROCK INN, LLC (cont’d)-application to expand bed and breakfast with tent and expanded parking for events under Zoning Permit # 285 of 2012. Said Zoning Permit was denied by the CEO for the following reasons: Current “Bed and Breakfast” use does not comply with State & Local Codes Currently it is not an owner occupied residential dwelling.
Mr. Moriello noted that this fits squarely within the Town’s definition especially in the manner of a home occupation. In the Town Code a home occupation is defined as:
Home Occupation — Any use customarily conducted entirely within a principal structure and/or other structure accessory thereto and carried on by the inhabitants thereof, which use is clearly incidental and secondary to the principal use and does not change the character thereof. See § 140-19 for further descriptions of home occupations by class.
Mr. Dunn wanted to know why they were in front of the ZBA if they are not in compliance now with their original approval? The Code Enforcement Office issued them a violation stating this.
Mrs. Christina noted that the fact that they are before the ZBA trying to remedy their situation stays that.
Mr. Dunn was reading from their original approval that was granted under Decision PB#1996-06(SPA), item 5 of the conditions clearly states that any deviation from this approval or decision shall render this approval null and void. It’s clear that in that decision on that site plan it states that the main house has 6 bedrooms. One for the owner and 5 for guests. The decision also states that the structure being applied for is singular. It doesn’t reference the carriage house at all.
Mrs. Christiana noted that they do want to change it and that’s part of what they are doing now. They are trying to get in front of the PB to alter that original approval.
Mr. Dunn questioned if someone was living in the carriage house (an owner) and not in the main house- does that still constitute a Bed and Breakfast?
Mrs. Christiana noted that was exactly what the ZBA needed to determine. The CEO says, ‘no’ and the applicant is appealing that decision and applied to the ZBA for their interpretation.
Mr. Dunn questioned the Town Attorney’s opinion on this.
Mrs. Christiana stated that she could definitely meet with the ZBA after the meeting and give her opinion.
Mr. Moriello tried to explain a little more about how this all transpired. He noted that he advised his clients to apply to the Planning Board to get them ‘lawful’ and he thinks the CEO’s concern was that the events would get large and unwieldy. The Town’s Code allows for 12 events per calendar year under the new 2009 Bed and Breakfast Law. Once in front of the Planning Board, the application will have to go through a rigorous site plan and SEQRA environmental review. Those concerns over specifics will get addressed during that process with the Planning Board.
Mr. Dawson felt that the simplest thing the applicants could do to remedy their situation was to have the owner/employee move into the main house.
Chairperson Haugen- De Puy agreed.
Mr. Moriello questioned if they made the employee an owner in the LLC and moved them into the main house- the ZBA was agreeable with that?
APPEAL OF CEO DETERMINATION
ELM ROCK INN, LLC (cont’d)-application to expand bed and breakfast with tent and expanded parking for events under Zoning Permit # 285 of 2012. Said Zoning Permit was denied by the CEO for the following reasons: Current “Bed and Breakfast” use does not comply with State & Local Codes Currently it is not an owner occupied residential dwelling.
Mr. Dawson thought that if they did that, they would be in compliance and not have to pursue their application with the ZBA.
Mr. Moriello still didn’t agree with Mr. Davis’s interpretation of the law. He also wanted to clear something up from his October 4, 2012 submittal regarding his argument that this was a non-conforming use. The Town Attorney informed him that was incorrect and he apologized for that. His goal here is to find a way to get back in front of the PB and then they can do their rigorous review.
Mr. Dunn questioned if the ZBA needed to care about Marbletown’s involvement?
Mrs. Christiana noted that would be part of the Planning Board’s review.
Mr. Mallery was still confused as to what the ZBA’s role was here.
Chairperson Haugen- De Puy noted that the ZBA’s job was to either uphold or overturn the CEO’s denial of the applicant’s Zoning Permit.
Mrs. Christiana agreed- they weren’t here to discuss the violations that the CEO cited against the property. They could only address the reasons that Mr. Davis denied the applicant’s request to expand bed and breakfast with tent and expanded parking for events under Zoning Permit # 285 of 2012. Said Zoning Permit was denied by the CEO for the following reasons: Current “Bed and Breakfast” use does not comply with State & Local Codes Currently it is not an owner occupied residential dwelling.
Mr. Moriello noted that he had faced a similar situation in Gardiner where the owner occupies the garage and he has guest bedrooms in the main house and they agreed with him- the garage was considered part of the residence.
The Board decided to set this application for a Public Hearing.
Mr. Dawson motioned to schedule a Public Hearing at its November 20, 2012 Meeting. Seconded by Mr. Dunn. No discussion.
Vote:
Haugen- De Puy, Chairperson- Yes Mallery, Vice Chair- Yes
Dunn- Yes Dawson- Yes
Kawalchuk- Absent
OTHER MATTERS
Mr. Dunn motioned to recommend to the Town Board the reappointments of John Dawson and Charlie Fischer to their current positions of Member and Alternate Member, respectively. No discussion.
Vote:
Haugen- De Puy, Chairperson- Yes Mallery, Vice Chair- Yes
Dunn- Yes Dawson- Yes
Kawalchuk- Absent
ADJOURNMENT
Mr. Dunn motioned to adjourn the meeting. Seconded by Chairperson Haugen- De Puy. 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