MINUTES OF August 19, 2013 the Town of Rochester Zoning Board of Appeals, held at the Town of Rochester Town Hall, Accord, NY.
Chairperson Haugen De Puy called the meeting to order at 7:00PM
PRESENT: ABSENT:
Beatrice Haugen- De Puy, Chairperson
Cliff Mallery, Vice Chair
Troy Dunn
Charlie Fischer, Alternate
John Dawson
Also present:
Rebecca Paddock Stange, Secretary. Mary Lou Christiana, Town Attorney.
Because there was not a full Board, Alternate Fischer was asked to join the Board.
PUBLIC HEARING
ZBA #13-01APPL, Applicant- Joseph Grasso– Appeal Code Enforcement Officer Determination of Zoning Permit #132 of 2013- Ulster Green ARC Building Permit for 112’ x 91’10” One Story Single Family Residence, Tax Map # 68.3-5-5
Mr. Grasso was present on behalf of his application.
At 7:02PM Chairperson Haugen De Puy opened the Public Hearing and noted that they were meeting to discuss an application by Joseph Grasso for an appeal against the Code Enforcement Officer’s Determination of Zoning Permit #132 of 2013- Ulster Green ARC Building Permit for 112’ x 91’10” One Story Single Family Residence, Tax Map # 68.3-5-5. She asked Mr. Grasso to step forward.
Mr. Grasso’s first question was why the stop work order was put up if only to be removed 4 hours later and what the purpose and reasoning was behind it.
Chairperson Haugen De Puy explained that this was a Code Enforcement decision and the ZBA had no part in it.
Mr. Grasso didn’t think that it was the CEO’s decision.
Town Attorney Christiana noted that they were not here to discuss that tonight. They were here to determine whether or not to hold up the CEO/ Building Inspector’s determination to issue a building permit. She did research on the stop work order after it was issued and this has come up many times in the past. She did speak with the CEO and it was her recommendation that the stop work order be rescinded under NYS Law.
Chairperson Haugen De Puy noted that the ZBA is limited in what they can decide on. They do not change zoning laws, they were strictly here for the appeal. They could determine that CEO Davis was correct in issuing the building permit or they could say that he wasn’t. That was the scope of that meeting and to that end whatever applies to that is what is pertinent.
Mr. Grasso noted that the size of the building on the permit that is listed is not the correct size and that is improper. The building inspector needed to know if that was correct or incorrect.
Chairperson Haugen De Puy believed that the size of the building in total was +/- 4,600sf.
Mr. Grasso noted that the application doesn’t say that it is 4,600sf.
Town Attorney Christiana noted that the building is in the shape of a ‘T’.
Mr. Grasso was not happy with this answer.
Chairperson Haugen De Puy noted that the dimensions listed on the building permit were 112’ x 91’10”.
Mr. Grasso argued that this wasn’t the size of the building that they were building and therefore the building permit was wrong.
Chairperson Haugen De Puy noted that the building permit lists 4,600sf.
Town Attorney Christiana noted that the permit lists the width and the length, however it is not a rectangle.
Chairperson Haugen De Puy noted that this created open space.
Mr. Grasso continued to argue that this made the building permit wrong.
Chairperson Haugen De Puy noted that Mr. Grasso made his point and asked for other information.
Mr. Grasso noted that there were deed restrictions in this subdivision that were overlooked. If you look up the definition of family, it says ‘blood relatives’. These people are not family that are moving into this commune or motel they are not blood relatives. It says family residence and definition of a family is blood. Brothers, sisters, mothers, aunts, uncles… are these people blood relatives?
Mr. Mallery noted that this may be what Webster’s Dictionary defines family as, but not how we define family under zoning.
Mr. Grasso still didn’t believe that this was a single family residence because they were not family. If he was building a house in the town, he wasn’t building a commercial group home. Ulster County Health Dept. lists the type of ownership as a commercial group home.
Chairperson Haugen De Puy noted that they did have that in their records.
Mr. Grasso noted that this was a business that was commercially owned. His next point was that there are 3 homes nearby that are in historic status. The homes that are there should not overlook this facility. This is the highest taxed area in the town of Rochester. There are people paying $24,000 on a house up there. He pays $12,000 a year for his house. The houses in the development are between $7,000 and $9,000 a year. And now you are taking a valuable piece of property off of the tax rolls and this baffles him. They are taking enough money out of the Town and it doesn’t make any sense. There are 3 situations here where people dropped the ball. The permit never should have issued because of where it is, the covenants that are on the property. Carl Chipman totally dropped the ball twice. On two occasions he got sent a letter and supposedly the garbage man signed for a registered letter and Mr. Chipman states that he doesn’t’ recall getting the letter twice. He had 80 days to reply. 8 or 9 years ago the Town allowed these people to come in and build a castle in the middle of that development. People spend hundreds of thousands of dollar on their home and the town just allowed them to build a castle in the middle of a beautiful development. They just accepted a building permit and allowed it. And he personally doesn’t feel that this hotel should be allowed next to his property. He paid 60-70 thousand dollars on that property. He is paying taxes over there to keep this beautiful. They all have spent hundreds of thousands of dollars to keep it that way and it’s getting poisoned.
Chairperson Haugen De Puy questioned if Mr. Grasso’s property was contiguous to this property?
Mr. Grasso stated that he owns two lots right next to it. He continued to note that the road is a private road. He doesn’t feel that UGARC is at fault here at all. He strongly feels that the town is at fault and has dropped the ball. And everyone who lives there feels the same way. There are no people that live there that want them in there. They sent a letter to the Town saying that if there is a better place suited for this to be to let UGARC know and they would build in a better spot. No one at the Town read the letter or they through it away, they didn’t care. The people that care are the people that live up there. There are people that come up just on the weekend to jog, to push their kids in strollers, it’s the most scenic area in this whole Town and they are going to have 7 employees, with 8 people and commercial traffic on a private road. This should have been looked at in the building permit and someone should have realized that this wasn’t in the right area. There are 15 pieces of property for sale that the Town could have recommended had they looked at the letter. This building is being put up is 60’ from one house and 40’ from another house on the road. They took a plot that is 4.8 acres and they shoved it over in the left hand corner. The septic is right next to his property and there is a pond on another property and a pond on another parcel. It says right in there- ‘elderly, frail, adults’. These people are walking around- it’s like having his 8 month old grandson walking around by his swimming pool. Why did the Town allow this to go in an area that is totally unacceptable when there are 15 pieces of property that they could have recommended if someone opened the letter and replied. No flags went up anywhere. He didn’t know that if anyone was really busy here, but he owns property all over the place and there is no building happening anywhere. So, he doesn’t think that anyone is too busy that they overlooked it. It’s going to destroy the property values and he bought those two lots as an investment for his children. If someone wants to reimburse him and everyone else a lot of money. One guy built a house and moved here from Stone Ridge to live here. They have two kids and they ride bikes on the cul-de-sac… there are basketball hoops there. You can’t have commercial traffic going in there all day long.
Chairperson Haugen De Puy questioned if these children were grown children? She was assuming this because the ponds weren’t an issue for them?
A member of the audience noted that his children swim.
Chairperson Haugen De Puy was asking Mr. Grasso.
Mr. Grasso noted that they were old enough that they wouldn’t fall in the pond… they knew how to swim.
Valerie Thompson was next to speak. She noted that she has put everything in her house and the day will come when she can’t afford her house when she is on a fixed income and they will need to sell. Her fear is that no one will want to build her house. She wouldn’t buy her house with this building next to it. It is a huge eyesore. She didn’t care how pretty they make it look. Someone else is going to come in looking at houses and they are going to have little kids and they aren’t going to want to live on this road with all this traffic. It doesn’t fit. It doesn’t belong. No one is going to take care of her when she can’t afford to pay the taxes on her house on her fixed income and she can’t sell it because no one wants it. This was her and her husband’s retirement invested in this house. They feel like they have no future now. She knows that the Chairperson came out and saw it because she saw her out there so she knows the Chairperson knows what she was talking about.
The Chairperson noted that she did do a site visit.
Next to speak was Andrew Comey. He lives 40’ from the property line- the issue that he has is that they moved there specifically because of the privacy of the road and the deed restrictions knowing that they were buying in an area where people truly cared about their land and their houses around there and that’s what made it so appealing. He noticed on the permit that where they ask about deed restrictions that it was intentionally left blank. This is the issue that he has. A section on the application was left blank. In his opinion that maybe UGARC was not given this information before purchasing the property. They live their specifically for the type of community that it was and this was completely unacceptable to completely overlook letting a commercial facility there.
Mr. Mallery questioned if the deed restrictions should have been listed- any in particular?
Mr. Comey answered that there were many on there that should have been. They left it blank. They say no commercial facilities, houses must be constructed of certain materials, no group homes… they have a septic system that is 4 times the size of any on homes on that road. He is afraid their well will drain all of there wells. The covenants strictly states as to how the buildings are to be built and maintained. They don’t even have a garage to house their vehicles- one of the restrictions is to not have cars left in the driveways. They show a parking area for up to 10 cars. That’s not a personal residence.
Mr. John Meshamesh declined to speak.
Dawn Fahey was next to speak. She noted that she lives on this road as well and she agrees with everything her neighbors have said and she won’t re-hash it however her own personal feeling is that she and her husband had two small children when they purchased their property and they searched for a very long time for the right piece of property that they wanted to use as an investment as well a safe place to raise their two young children. Now their situation has changed over the last couple of years to her son constantly asking over the last couple of years ‘are you going to give me the house he wants the house he wants the house’. He is no longer asking that question. She also noted that this was going to be an investment property and now she doesn’t see that will happen either. She paid a lot of money for her property and has great views from her land. She doesn’t feel that this is well suited for their specific area. She doesn’t begrudge housing for anyone, but she didn’t think that this was the right location for this type of housing. She feels that the Town of Rochester would open them with open arms, but there is a more suitable area for this facility. Secondly she feels discouraged that due process was not given to them. The notification process for this project was not done properly by law. At the last Board Meeting – she wanted to know if the information that she submitted at the last meeting was put on record?
Chairperson Haugen De Puy noted that they were made a part of the record and were distributed to all Board Members after the last meeting. Mrs. Fahey submitted deed covenants and many letters stating people’s objections and their reasons stating why this has not been done correctly, and laws backing up their claims were submitted.
Michael O’Connell was next to speak. He felt the same with most of the statements made and he lives on Cedar Ridge Road currently as well. The whole covenants is the kicker for them. When he went to Mr. Davis and asked about the permit being issued and the inconsistencies and things missing from the application and he stated ‘why would he ask them about this?’. There is all this tremendous zoning that they wrote. When does any of it come in to play? S142- no one addressed this whatsoever. Protecting historical resources. The building is right across the street from the De Pew house that is on the National Historic Register. When he asked Mr. Davis about it he said, ‘why would I?’. Protecting the community’s water supply. When a building comes in that is going to be 13 or 8 occupants, 7 workers—several of the houses next door—the wells have been dry this year and other years that they were dry everyone had water problems. Again and again to say that it is zoned as a house, that’s great for the legality of zoning, but everyone of these issues – is looking at whether this is a suitable placement. And forget that Carl dropped the ball- somebody when they are looking at these permits has to look at this 8 bedroom residence in this private neighborhood that has water problems and has covenants. The hits keep coming- ‘creating guidelines for development and landscaping in a high quality environment and preserving natural beauty.’ There’s #5. Recognizing historical neighborhoods and preserving small scale development patterns. #6. Every single bullet on the zoning this goes against- who is looking at it and to be told that it doesn’t matter because it’s residential—its not. It’s the emperor’s clothes. He’s not fighting the legality- he’s fighting the zoning. Everything in the Town’s Zoning Laws in the purposes- almost 10 out of 12 things are contradictory to why we adopted this zoning for and they invested hundreds of thousands of dollars to live here. One of the last bullets is emergency access. They had a fire at their house and by the time they came it burnt to the ground. His son had an accident and broke his arm—45 minutes he was at the house after calling 911 and it took 45 minutes to get him help. So to put this in a remote side of Town- private road… if it snows—this road has no maintenance agreement. They are going to have to plow that road out to get the people out. The Town won’t plow it. They’ve already asked the Town to take it over and they didn’t . #6 preventing intrusion of incompatible uses in a residential area as to ensure the privacy of residents and their freedom for uses. Go to one of these people’s houses and sit on their front porch and tell me that their quality of life didn’t change and it’s going to be a nuisance. If they put up a 3 or 4 bedroom home and had 3 or 4 clients, it would be a perfect fit. It’s not even close. It bumps 10 of the 12 bullets of what the zoning is all about in this town. And if it isn’t Jerry’s responsibility – whose is it? And even to say that it isn’t commercial and didn’t jump out at them. The historical society wants to hang people because they can’t believe that this went through. They should have been notified. It seems like there were a lot of things that were overlooked. Someone dropped the ball. Zoning looks great at paper to someone that is looking at a website—but come to his house.
Mr. Dawson questioned if there was an RMA on that road?
Mr. O’Connell replied that there wasn’t.
Mr. Meshamesh wanted to know why he wasn’t notified? Someone put a pond in nearby and everyone was notified because they were taking clay out of there. This is a commercial building and the people on the road weren’t notified? That’s crazy. Whose job was it to tell them this? They all pay taxes here.
Ms. Thompson was recognized to speak again. She questioned why the stop work order was lifted.
Town Attorney Christiana noted that the stop work order was put into effect because there is a provision of our law which is taken directly from NYS Law that says if someone appeals a determination of the Code Enforcement Officer everything stops. However, the NYS courts have interpreted that to mean- only if the property owner himself appeals something about his property- not a third party- not a neighbor. That’s why because NYS Law and the way it has been interpreted doesn’t call for a stop work order. The purpose of the provision- for example if Jerry went to someone and said that they had a violation on their property. That property owner could appeal to the ZBA and say, he is interpreting our law incorrectly- that they are not in violation and the CEO can’t being them to court until the ZBA has made a determination. That is what NYS courts have said that is what that provision means. It doesn’t mean if she is doing something on her property and her neighbor appeals what she is doing things aren’t stayed. It’s only if the CEO makes something against the property owner and they appeal the CEO.
Ms. Thompson questioned all of the things that Mr. O’Connell brought up that it goes against the zoning—
Town Attorney Christina noted that that is what they were here to determine it.
Ms. Thompson questioned why all of this wasn’t taken into consideration before the stop work order was lifted.
Town Attorney Christiana noted that under the law, it’s not relevant as to the lifting of the stop work order. He determined that they met all of the requirements to get a building permit. The CEO did consult with her and she agrees with him and therefore the stop work order was lifted.
Ms. Thompson stated that it didn’t make sense because Mr. Davis even said he didn’t understand it.
Town Attorney Christina noted that they weren’t really here to address the stop work order. She is aware that a number of the people here tonight have an attorney and she suggested that they consult their attorney. She couldn’t speak for Mr. Davis.
Chairperson Haugen De Puy questioned if Mr. Davis would like to address any of this?
Mr. Mashamesh noted that this was a commercial septic going in there—didn’t they need a special permit?
Mr. Davis was present and wanted to address all of it. He came forward and noted that the Ulster County Health Dept. issued the septic permit. Mr. Davis noted that he has to have a permit in hand from the UCHD before he can issue anything, so yes, they have Board of Health Approval. He noted that he totally sympathizes with the people here tonight, but the NYS Building Code is what he has to go by and it doesn’t allow him any prejudice.
He read from the NYS building code ~#310 which states under R-3 & R-4:
“R-4 Residential occupancies shall include buildings arranged for occupancy as residential care/assisted living facilities including more than five but not more than 16 occupants, excluding staff.
Group R-4 occupancies shall meet the requirements for construction as defined for Group R-3, except as otherwise provided for in this code, or shall comply with the Residential Code of the New York State”
R-3 states that this is a residential one family occupancy and this is what he based this on giving him a building permit. There is nothing commercial about it, it is considered a residential occupancy.
Ms. Fahey questioned the R-3 and R-4?
Mr. Davis explained that this was from the NYS Building Code. Their permit was issued and they paid on it based on the 4,600sf. Not 10,000 sf. He was probably overstepping his boundaries, but people spoke about the application not being filled out completely. Everyone of the people here tonight have put in Zoning Permits for things that they have done on their properties and there were never anything put in those restrictions as well. And these people knew that they had the covenants. He doesn’t know that. The Town doesn’t enforce covenants from subdivisions. The total number of occupants was 16 excluding staff- no more than 5.
Mrs. Fahey noted that she read in the zoning code something about covenants in there – what was that about?
Town Attorney Christiana noted that Ms. Fahey needed to be more specific. There may be things that are imposed by the Planning Board that the Town could enforce, but NYS Law does not allow the Town to enforce private covenants and restrictions.
John Meshamesh noted that this is the nicest road in Kerhonkson and these people have ruined it.
Donna O’Connell was recognized to speak. She wanted to touch upon what her husband already said—she wanted to know when those zoning laws would come into effect?
Town Attorney Christiana noted that what that section actually is a descriptive section that says what these zoning laws do. This is the purpose of all the laws after this statement. So, the Town Board back in 2009 when they did the new zoning and the committees- these are the things that they took into consideration in writing the laws. They were looked at in writing everything that comes after that.
Mrs. Thompson wanted to know when those come into effect?
Town Attorney Christiana noted that the laws that come after that are the laws which protect those things that Mr. O’Connell had listed. She noted that they are the things that came into consideration when they wrote the zoning code. The CEO took those matters from the zoning code into consideration when issuing the permit.
Mr. Paul Kellar, Attorney for UARC and Mr. John McHugh, CFO Executive Director of UARC approached the Board.
Mr. John McHugh was recognized to speak. Mr. McHugh noted that he is the CFO Executive Director of UARC
He wanted to share with everyone some of the things that they do as an organization and also to convey that their organization followed all rules and procedures that were required when obtaining a building permit on Cedar Ridge Road. Ulster Green ARC is an organization that provides services for people with developmental disabilities in the counties of Ulster and Greene. We serve almost 1200 people in residential, day, and work programs. We also proved support services in family homes, transportation services to an from programs, and educational services at the Brookside School in Cottekill serving school age and pre school students with and without disabilities. We currently operate 25 houses throughout both counties where 215 people with developmental disabilities call “home”. We also manage 34 apartments for 52 individuals some of whole are also married and are sharing a life together. When we look for a place to move to our build a home for the people we serve, we look for the same qualities that each of us do with our own families. What is the neighborhood like? How far is it from school or work? What kind of quality of life will I be able to have here? We respect everyone right to enjoy the Cedar Ridge Road Neighborhood. We want to be a good neighbor to the people living near us, no only because it’s the right thing to do, but also because being a good neighbor is consistent with our values as an organization and it fulfills our mission, which is to provide people with developmental disabilities the opportunity to live a full life. The people who would like to move to Cedar Ridge road currently live in a State run developmental center which is being closed. They are not part of any real community. You and I enjoy many freedoms, freedom to choose where we work, freedom to choose where we live, and freedom to choose where we want to raise our families. These people do not currently have those same freedoms. We want to help provide these individuals the opportunity to enjoy the same God given rights and freedoms that all of us here tonight enjoy everyday. I want to thank the Town of Rochester ZBA for your time and attention this evening. Ulster Greene ARC has abided by every law as it relates to our project on Cedar Ridge Road, and the Town of Rochester correctly issued a building permit to us. We oppose the appeal that has been brought and respectfully request that the Zoning Board reject the appeal and uphold the legitimate building permit issued by the Town months ago. I hope to have this issue resolved rapidly as we move forward and build the home for the eight members of our family. Thank you.
Christopher Smailer was next to speak on behalf of UGARC. Mr. Smailer noted that he is the architect that designed this building and as the architect of record it is his responsibility and charge to develop plans and specification that meet the requirements for the NYS Residential Building Code. They designed this building under the residential Code of NYS and in doing so prepared a stamped set of construction documents, which include full set of drawings and a specification and project manual that dictate the scope and nature of the entire project which he entered as part of the record.
Paul Kellar submitted a statement that they made part of the official record. He noted that the legal issues on this appeal are very straight forward. The question is was the building permit properly granted? The answer is unequivocally, ‘yes’. All the architectural plans are before the Board, the Building Inspector/CEO properly issued the permit. There have been a variety of questions that he wanted to address. They heard that there was no driveway permit. A driveway permit is not issued for a single family house on a private road. There are questions raised whether or not this is a single family house. They have heard repeatedly that this is deemed a commercial structure. It may be perceived that way by the public, but the law of the State of NY differs with that popular opinion. The Law of the State of NY states, under Section41.34 Mental Hygiene Law, that any law or any ordinance which attempts to prohibit the use of a residence of this type is void. That is the law. The Court of Appeals specifically held that any private restrictive covenants which attempt to bar a community residence are void as against public policy. That happened 29 years ago. The restrictive covenants. The Building Inspector and Council are correct. He has neither the power nor authority to enforce restrictive covenants and he sites highest Court of the State of NY, which says specifically that a restrictive covenant may not be enforced where a balding permit is otherwise appropriate. The building permit was appropriate, it was correctly issued and irrespective of any restrictive covenants, that is not the realm of the Building Inspector to enforce. Was notice given? It absolutely was given. A certified letter was sent on September 20, 2012 to Chief Executive Officer of the Town of Rochester. It was signed for by an employee of the Town of Rochester. Subsequently 60 days letter another letter was sent by certified mail. It was signed for by an employee of the Town of Rochester. He cited case law again that what the Town of Rochester might have done with those letters, he can’t ascertain. The Supervisor doesn’t say he didn’t get them, he says he doesn’t recall getting them. He knows he gets a lot of mail in his office and he might not recall what he received on September 20th of last year either. But the fact is that they were sent by certified mail and they were received and signed for by the Town of Rochester. There were comments about the application. The application with respect to square footage. It says 4,660 sf. That is exactly what the building is. The fact that the building permit shows a larger dimension, it was presumably the outside dimensions of this large ‘T’, but as we all know from math class if you have a ‘T’ the rest of it isn’t filled in. It is a 4,660 sf building. What is family? NY Court of Appeals is the rule of the land here and they have said that any covenants which try and restrict community residence based on the fact that it’s not a ‘single family home’ in the traditional sense that most of us recognize is unfortunately too bad. The Court of Appeals says that a single family residence is what these community residences should be deemed to be. So irrespective of what the Zoning Code says or popular concept of a single family home, this is under the Law of the State of NY a single family home. Both the facts and the law unequivocally support the fact that the Building Inspector did the right thing by issuing the permit and in rescinding the stop work order. The town is in compliance with the law.
Chairperson Haugen De Puy questioned Mr. Smailer if he would be able to draw out a diagram for them showing how they get the dimensions and the square footage of the building.
Mr. Smailer noted that often they are requested for the over all dimensions of a project, so if this is a floor plan of the house, then they will give an over all length and an over all width and then the further describe that as being a gross square footage of 4,660sf because for them to delineate a perimeter around the building becomes very difficult for anyone to understand. He noted that it’s broken up as a series of rectangles. He sketched out the building showing the square footage breakdown.
Chairperson Haugen De Puy noted that the Board would now entertain questions from Mr. Grasso’s side of the appeal, but she asked that the questions be directed to the Board.
Mr. Grasso questioned if Mr. Kellar had been to the site?
Mr. Kellar replied that he has not.
Mr. Comey noted that in the letters from September of last year states how they wanted to build this facility to fit into the community and that they wanted to be a part of the community. His question was that if he wanted to be a part of the community in which they all know, why no one knocked on anyone’s door and introduced themselves to let them know what they were going to do? They keep saying that they want to fit into the community, yet they have done everything to alienate themselves from the community.
Mr. McHugh noted that they follow the legal process and it’s not a typical poll people in the neighborhood. That’s not the process.
Mr. Meshamesh questioned who looked at the site?
Chairperson Haugen De Puy noted that they are trying to address for the building permit issue at this time. That is what the appeal is for. This was not relevant to the process.
Mr. Kellar noted that this is not relevant to this evening, but he could tell him that the UGARC does do site visits to see if the property they are considering fits their needs.
Mr. Grasso questioned who the person was that did that?
Town Attorney Christiana noted that it wasn’t relevant.
Mr. Grasso questioned how many years UGARC has been in business?
Town Attorney Christiana noted that it wasn’t relevant.
Chairperson Haugen De Puy noted that they could answer if they chose to, but they don’t have to as it isn’t relevant.
Mr. Grasso wanted to know if they built 25 homes in 25 years—he’s in business and he’s run multimillion dollar businesses, all they had to do was pick up the phone and say to someone—“Mr. Chipman- did you receive the letter that we’ve written to you twice? We didn’t receive a reply.” His feelings are that UGARC – there is enough people working there- someone could have called to find out… they say they want to be neighborly and friendly and fit in the community, but no one went out of there way to find out if this was the proper place or not.
Mrs. Fahey questioned under the Mental Hygiene Law regarding the notification. It is still their belief that that notification was not properly served under that Law, thus denying the residents due process in the result of issuance of the building permit. It states in the letter that an alternative site could have been provided to them at that time. Not properly being served, the notification not being brought to the Town Board Members – that is all denying them due process.
Chairperson Haugen De Puy questioned if there was anyone else to speak? She noted that they have gone over several different issues. She asked how the Board felt about keeping the Public Hearing Open or did they want to close it? Did they have enough facts to make a decision?
Mr. Dunn motioned to close the Public Hearing at 8:05PM. Seconded by Mr. Dawson. No discussion.
Vote:
Haugen- De Puy, Chairperson- Yes Mallery, Vice Chair- Yes
Dunn- Yes Dawson- Yes
Fischer- Yes
Motion carried- 5 ayes, 0 nays, 0 abstain, 0 absent
Chairperson Haugen De Puy noted that Public Hearing has been closed. She thanked everyone for all of their input and information that they have given the Board. She noted that they have 62 days to render a decision and they have a lot of information to go over. What everyone presented is in the record. Mr. Grasso will be notified as to what the decision is.
DISCUSSION
Albert Stephenson, Area Variance for lot density, proposed .81 acre lot in a 5 acre district, Frankel Road, Tax Map # 69.1-1-20.9
Mr. Fischer motioned to set the Public Hearing for Albert Stephenson’s Area Variance for September 17, 2013, seconded by Mr. Dawson. No discussion.
Vote:
Haugen- De Puy, Chairperson- Yes Mallery, Vice Chair- Yes
Dunn- Yes Dawson- Yes
Fischer- Yes
Motion carried- 5 ayes, 0 nays, 0 abstain, 0 absent
OTHER MATTERS:
MINUTES:
Chairperson Haugen De Puy questioned how the Board would like to see minutes done in the future?
Town Attorney Christiana noted that all that is required to be recorded are the motions and votes, however, many times minutes have been valuable in court. She loves having the minutes to show A, B, C, & D were done the correct way.
Mr. Dawson agrees but still thinks they are too long.
Mr. Fischer does like them as a reminder.
Mr. Dawson trusts the secretary to make the decisions on what information to put in them.
Mr. Mallery hates the minutes.
Chairperson Haugen De Puy made a motion to let the secretary be the judge as to what went in the minutes. Seconded by Mr. Mallery.
Discussion:
Mr. Dunn didn’t think it was right to put that responsibility on the secretary. Then that leaves her responsible if she leaves something out that she didn’t find pertinent.
Town Attorney Christiana noted that in the end these are the Board’s minutes and they vote on them. They can always change them at any time.
Mr. Dunn believes that if the Town Attorney finds them useful the way they are done now, on behalf of the residents of the Town, then he would agree to leave them alone.
Chairperson Haugen De Puy motioned to leave the current format as is. If needed the Board can request verbatim minutes. Seconded by Mr. Dawson. No discussion.
Vote:
Haugen- De Puy, Chairperson- Yes Mallery, Vice Chair- No
Dunn- Yes Dawson- Yes
Fischer- Yes
Motion carried- 4 ayes, 1 nays, 0 abstain, 0 absent
Mr. Dunn motioned to table the February, March, May and July minutes. Seconded by Mr. Dawson. No discussion.
Vote:
Haugen- De Puy, Chairperson- Yes Mallery, Vice Chair- Yes
Dunn- Yes Dawson- Yes
Fischer- Yes
Motion carried- 5 ayes, 0 nays, 0 abstain, 0 absent
The Chairperson thanked the Town’s Constable, Rich Miller for attending the meeting this evening.
CEO APPEAL:
Town Attorney Christiana wanted to get a feel from the Board regarding their opinions on a draft decision for the UGARC Appeal. She made this clear that this wasn’t a vote, but a consensus of the Board’s opinions.
Mr. Dawson noted that as for their decision he thinks it needed to be upheld.
Mr. Mallery believed that there were two issues here. One—was the Town required to have notice. UGARC demonstrated that the Town did get notice, so that ends that issue. Two—is this a family residence? He thinks the law answers that one as well.
Chairperson Haugen De Puy noted that covenants seem to be the third issue that they have addressed and know that the Town can’t enforce.
Chairperson Haugen De Puy questioned if they needed to discuss the decline of the tax base?
Town Attorney Christiana noted that it had nothing to do with it. Did they present everything they needed to present in order to get a building permit? Yes they did.
Chairperson Haugen De Puy noted that they do meet all setback requirements.
Mr. Dunn noted that just about all of the comments that were brought up were not applicable.
Mr. Dawson noted that they were over 500’ from the historic building.
Town Attorney Christiana noted that they were issuing a building permit- that is a non discretionary thing and is not subject to SEQRA.
Mr. Dawson noted that the historic stuff really isn’t part of zoning anyway.
The Town Attorney agreed and noted that it wasn’t the CEO’s determination to decide whether this is a good use in this area. That’s what the zoning laws are for. The whole issue of the 4,660 sf or 10,000 sf is also irrelevant. It meets the law.
Mr. Dawson questioned if it hurt their property values? He believed it did.
Mr. Dunn didn’t think that Mr. Dawson could know that—that was an opinion. Who knows? No one knows what this will do.
Mr. Dawson noted that having it single story is nice- ‘T’ shape hides it—but again, that’s not the ZBA’s call either.
Town Attorney Christiana noted that she understood the Board’s consensus and would work with the Chairperson before the next meeting on a draft decision.
ADJOURNMENT
Mr. Dunn motioned to adjourn the meeting. Seconded by Mr. Dawson. All members present in favor.
Since there was no further business, at 8:30PM Chairperson Haugen De Puy adjourned the meeting.
Respectfully submitted,
Rebecca Paddock Stange, Secretary
DRAFT