MINUTES OF October 2, 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
Charlie Fischer, Alternate
John Dawson
Troy Dunn
Also present:
Rebecca Paddock Stange, Secretary.
Because there was not a full Board, Alternate Fischer was asked to join the Board.
PRE-APPLICATION CONTINUED DISCUSSION
Robert Manley, Jr & Geraldine Manley, Area Variance, applicant lacks 1.83 acres for a second dwelling on a 2.17 acre parcel in an R-2 Zoning District, Tax Map #76.4-2-6.11
Geraldine Manley and her daughter, Valerie Nigro were present on behalf of the application.
Chairperson Haugen De Puy noted that this application is for an Area Variance to add a second dwelling on a 2.17 acre parcel in a 2 acre district. The applicant would need a 1.83 acre variance. The Board had questions after the last meeting on whether or not the lot was grandfathered because it was previously a 1 acre district when the applicant purchased the property and what the feasibility was between two different possible scenarios- on the 2.17 acres or combining the parcels to request a variance on the 5.57 acres (a .43 variance vs. a 1.83 acre variance.) The Town Attorney didn’t think it was grandfathered because only one house existed at the time of the zoning change, so the requested house doesn’t qualify. And whether or not it was more feasible to give an area variance on the two different scenarios—the ZBA would still need to weigh all of the factors involved as they went over them at the last meeting:
(a)whether an undesirable change will be produced in the character of the neighborhood or a detriment
to nearby properties will be created by the granting of the area variance;
(b) whether the benefit sought by the applicant can be achieved by some method, feasible for the
applicant to pursue, other than an area variance;
(c) whether the requested area variance is substantial;
(d) whether the proposed variance will have an adverse effect or impact on the physical or
environmental conditions in the neighborhood or district; and
(e) whether the alleged difficulty was self-created, which consideration shall be relevant to the decision
of the Zoning Board of Appeals, but shall not necessarily preclude the granting of the area variance.
(f) The Zoning Board of Appeals, in the granting of area variances, shall grant the minimum variance
that it shall deem necessary and adequate and at the same time preserve and protect the character
of the neighborhood and the health, safety and welfare of the community.
The Chairperson believed if the applicant were to put the additional house on the 2.17 acres before trying to secure the proper permits—that would make it self created. As for whether or not this could be achieved by any other means- she questioned if what the applicant would pay for a separate dwelling if it would be feasible to put an addition on the existing mobile home?
Mrs. Nigro answered that she didn’t want to live with her parents. She wanted her own place to live.
Mr. Dunn needed a further explanation of the circumstances as he was not at the applicant’s initial meeting.
Mrs. Manley noted that her daughter has had 6 surgeries in the last 3 years and her husband has had 3 heart attacks and she needs to take care of both of them and it would be difficult if her daughter didn’t live right next to them.
Mrs. Nigro further explained that years ago she and her mother bought about 4 or 5 acres together and they subdivided it so that they would each have a lot and now she is losing her home. Her mother owns another 3.57 acre parcel and there is another trailer on that. She noted that she has gotten 5 letters from neighbors with no objections to Mrs. Manley’s area variance.
Mrs. Manley noted that she wasn’t interested in combining the property. One parcel would be going to her grandson and the other would be going to her granddaughter.
Mr. Mallery noted that either way, – either combining or leaving it as is, they would come up short because if they combined it they would have 3 houses on less than the required 6 acres.
Mr. Dunn noted that 3 homes on 5.7 acres would be less substantial than two homes on 2.17 acres.
Mr. Mallery noted that they also had to look at what they did in the past in this type of a situation. Have they granted similar variances? What happens in the future when someone else comes in? The ZBA has to be consistent.
Mr. Dunn questioned if there was any way that Mrs. Manley would combine the parcels?
Mrs. Manley answered that she didn’t want to.
Mr. Dunn noted that there was a difference between not wanting to and not doing it.
Mr. Dunn then questioned if she would consider putting the additional dwelling on the 3.4 acre parcel that was adjoining the 2.17 acre parcel?
Mrs. Manley noted that there really wasn’t room on that other parcel because of the power line easement and the slope and driveway. It was an odd piece of property and there really wasn’t a flat spot.
Mr. Mallery noted that he drove by the parcel and he couldn’t see the existing home from the roadway.
Mr. Fischer also went to the property today and with the leaves on the trees you could hardly see her place. And from her place you couldn’t see the road. His opinion was that this was a good thing. It wasn’t going to hurt the environment or the neighborhood. Someday someone would want to re-subdivide it if they combined it and they won’t be able to. With three homes on one lot her assessment would also change.
Chairperson Haugen De Puy stated that the Board could not consider her taxes in their reasoning.
Mr. Dawson questioned that if there was unusable land on the larger lot owned by Mrs. Manley, what about doing a lot line adjustment, shifting over some land and making her smaller lot where she wanted to add the second mobile home larger to lessen the variance?
Mrs. Nigro thought that was a good idea.
Mr. Mallery re-iterated that the real question the Board needs to consider here is if the request is substantial. It’s something that the Board really needs to think about.
Mr. Dawson suggested that the applicant go and see Bill Eggers who is a land surveyor at Medenbach & Eggers. He knows the laws and would know what land could be moved over to the smaller lot.
Mrs. Nigro questioned if it mattered if the larger property was decreased to 1 acre?
Mr. Dawson stated that since this is a 2 acre zone, it would need to retain 2 acres. +/-1.44 acres could be moved over.
Mr. Dunn noted that after a lot line adjustment of 1.4 acres given to the 2.17 acre piece, she would still need a .43 acre variance to add the second mobile home. This was just his brainstorming.
Mr. Mallery noted that he wasn’t comfortable with the variance on the 2.17 acres, but if there was a lot line adjustment and it lessened the variance like this- it could be better. He then questioned the anonymous letter that was submitted to the Board stating that the applicants were not being truthful with their reasons for a variance.
Chairperson Haugen De Puy noted that they couldn’t put any stock into a vague anonymous letter.
Mr. Dunn noted that when the applicant purchased the property it was 1 acre zoning. The Board should find out why it was changed from 1 acre to 2 acre zoning.
Mr. Dawson noted that when the Town was changing the zoning they looked at the lot sizes in the neighborhoods to create communities consistent with what was there.
Mr. Dunn believed that the Board needed to explore how they got to where they were. The evolution of how they got to where they were in this zoning—and what reason it changed to R-2. The ZBA needed to know this information. They needed to historically look at what the reason was that this zone was changed as it affects their property. Did their assessment change because of this?
The Chairperson questioned how knowing any of this would help Mrs. Manley’s situation?
Mr. Dunn replied that it would help the Board come to terms with how it came to be this way. –He’s just brainstorming here.
Mr. Dawson recalled that they tried to keep consistent with the existing lot sizes as to how they put the districts together. Smaller lot clusters were 1 acre, then as they increased in size- they were 2, 3, and 5 – and he believed that was based on the general lot sizes of certain areas.
Mr. Mallery had thought that they redistricted away from complete 1 acre zoning to try and preserve the Town a little.
Mr. Dunn stated that the value of the land has changed. They didn’t buy the parcel when it was zoned 2 acres.
Mrs. Manley noted that she had no issues when the property was zoned at 1 acre.
Mr. Dunn noted that this is not self created. The laws changed and made this a problem.
Mr. Dawson noted that this isn’t really unique to just her—everyone else in the Town has the same issue where their zoning districts were changed. He didn’t want to create a problem with future applicants because of this.
Chairperson Haugen De Puy noted that a family necessity was not a reason for granting a variance. The variance goes with the land, not the people.
Mr. Dawson thought that Mrs. Manley’s reasons were a hardship that he would take into account.
Mr. Dunn noted that if the applicant wanted to look at the lot line adjustment option it might be better if they did it when she only had the one house. If she did it with the one trailer, it would conform to zoning. And then they could look at the variance for the next trailer.
The Chairperson felt that they needed to address the trailer that she was proposing- they had to consider it—that was why the applicant was here.
Mr. Dunn was only bringing up ideas. It was worth exploring putting the 2nd trailer on the lot that was bigger- the 3.44 acre parcel. The only reason he brings it up again is because people say it can’t be done, and then when they take a closer look, they may find that there is actually a way to do it.
Mrs. Manley noted again that she was leaving one of the trailers to a grandson and the other to her granddaughter and that her daughter would have life time residency in the new trailer.
Mr. Mallery discussed a court case about variances being substantial . He was concerned with the the 1.83 acres being asked for because he thought that was substantial. He would be more agreeable to the larger lot gaining the second trailer and having to give less of a variance.
Mr. Dawson was curious about the ground and noted that a septic would have to be built at some point.
Chairperson Haugen De Puy didn’t think that was relevant to this Board.
Mr. Dawson was just curious.
Mrs. Nigro felt that she needed to give more background about her situation. She was losing her home. It started with medical issues and then she and her husband went through a divorce and they refinanced the home so that they could separate. She became ill and had medical bills. Their mortgage went from $1200 to $2400. They couldn’t sell it and wanted to get out of it just what they owed. The medical bills kept coming in and things snowballed and her husband retired. Her husband works now and is a DJ. She’s tried to work this out with Bank of America, but there are millions of others out there in her same situation. She is not a slug, and she doesn’t want to move out of the area. Her family is here- her son lives on Queen’s Highway.
Chairperson Haugen De Puy noted that it wasn’t the Board’s position to judge anyone.
Mr. Mallery noted that they could see that they were struggling, and they wanted to help, but the question was would the law allow it?
The Board further discussed the lot line adjustment scenario and felt that it was worth looking into. They weren’t really sure what would be involved on the Planning Board’s end, so they discussed sending this application to the PB for their advisory opinion on it. They also advised the applicant that just because they were in agreement that this looked like the most favorable scenario on their end, that they haven’t made a decision yet, it wasn’t a sure thing for the applicant.
Chairperson Haugen De Puy motioned to send the applicant to the Planning Board for an advisory opinion on the idea of a lot line adjustment which would take the applicant from needing a 1.83 acre variance to a .43 acre variance. 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
PRE-APPLICATION DISCUSSION
Maria Reidelbach, 23 Main Street, Area Variance for two dwellings on less than 2 acres, Tax Map # 77.9-1-37.100, Hamlet District.
Ms. Reidelbach was present on behalf of her application. She explained that she had .6 acres in a Hamlet District on Main Street in Accord and she wanted to convert part of her existing garage into an apartment. She had a residence, garage and studio and another shop, with well and septic and parking on the lot. The septic was in the back of the property. She wanted to take ¼ of her garage/studio and turn it into an apartment for herself and rent out her large home to a family. She has always had roommates or lived with other people all of her life and she is fine with it. The house is too big for just one person. If this isn’t feasible she would probably have to sell the property. She wasn’t proposing to add anything to the property physically- any improvements would be inside the existing structure.
Chairperson Haugen De Puy read the applicant the balancing test by which the ZBA makes their decisions:
(a)whether an undesirable change will be produced in the character of the neighborhood or a detriment
to nearby properties will be created by the granting of the area variance;
(b) whether the benefit sought by the applicant can be achieved by some method, feasible for the
applicant to pursue, other than an area variance;
(c) whether the requested area variance is substantial;
(d) whether the proposed variance will have an adverse effect or impact on the physical or
environmental conditions in the neighborhood or district; and
(e) whether the alleged difficulty was self-created, which consideration shall be relevant to the decision
of the Zoning Board of Appeals, but shall not necessarily preclude the granting of the area variance.
(f) The Zoning Board of Appeals, in the granting of area variances, shall grant the minimum variance
that it shall deem necessary and adequate and at the same time preserve and protect the character
of the neighborhood and the health, safety and welfare of the community.
The applicant noted that her neighbor was fine with it.
The Chairperson suggested that the applicant obtain letters of support from her neighbors.
Mr. Mallery felt that this was a substantial request as it would be a 1.4 acre area variance.
Mr. Dawson noted that this was the largest parcel on Main Street.
The applicant noted that she would have to explore the suitability of her septic further if she were to add the apartment. The previous use of the property was a pottery studio and that used major amounts of water. There was a huge aquifer that she was tapped into already. She would look into finding if there was a well log and the size of the septic with her guy that did the home inspection when she purchased the property. She has also observed that this being on Main Street in Accord, it’s a densely populated area, so she would be keeping into the characteristic of the neighborhood. She would have 1 bedroom in the apartment and the home has 3 bedrooms in it. The two front doors on the garage/studio are permanently closed with big planters in front of them outside to further block them off. The beauty of this property was that she is an artist, and therefore could work right where she lived. If this didn’t work out, she would probably need to sell it and move somewhere where this could work.
Mr. Dawson questioned if she considered adding a connecting apartment onto the house?
The Chairperson noted that would take space away from the property, this way it was contained into what was already there.
The applicant noted that she thought it was more sustainable to the environment if she used the existing space for this.
Mr. Mallery would be more comfortable with leaving the home alone and not adding on anything further.
The applicant would look into getting further information to the ZBA and come back to another meeting with more information.
CONTINUED DISCUSSION/ POSSIBLE DECISION
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
Chairperson Haugen De Puy read the draft decision into the record as follows:
FACTS ESTABLISHED AT THE PUBLIC HEARING:
Applicant Joseph Grasso represented himself at the Public Hearing regarding his appeal of the Code Enforcement Officer’s Decision to issue a building permit to Ulster Green ARC.
Mr. Grasso feels that the building permit issued should be revoked. ~He reinforced his case by stating the following;
a. Blood relatives or those adopted into a family represent what constitutes a “single family” residence.
b. This structure represents, by its size and design, a commercial structure, not a family residence.
c. Town officials “dropped the ball” and did not respond timely to the Ulster Green ARC
Advisory letter stating they were looking to build on the above referenced property.
d. There is an historic home within the 500 ft. bounds that this structure will be built.
Members of the Historic Society are concerned.
e. Neighbors feel they already pay some of the highest taxes in the Town. ~This will be a tax exempt property and be taken from the tax rolls. ~This type of residence will lower the re-sale value of contiguous properties.
f. Cedar Ridge Rd is a private road. ~The Town does not maintain this road. ~The residence of this property may not be able to get emergency services timely in inclement weather.
g. Traffic on this road will increase with the staff, commercial traffic, and visitors to this facility. ~This will disrupt the quiet private nature of this road.
h. When the subdivision this property is located in was created there were covenants placed on deeds to not allow this type of structure.
i. There are ponds on some of the surrounding properties. Neighbors are concerned for the safety of the residents housed in this facility.
3. ~Mr. Jerry Davis, Code Enforcement Officer, testified the following:
- He had spoken with Mr. Grasso and initially issued a Stop Work Order. Upon speaking with Town Attorney Mary Lou Christiana and gaining better insight into the law, Mr. Davis revoked the stop work order.
- He read from the NYS building code ~#310 which states under R-3 & R-4:
“R-3 Residential Occupancies where the occupants are primarily permanent in nature ~~~~~~~~~~~~~~~~~~~~~~~~~~~~and not classified as Group R-1, R-2, R-4, or I, including:
Buildings that do not contain more than two dwelling units.
Adult care facilities that provide accommodations for five or fewer persons of any age for less than 24 hours.
Child care facilities that provide accommodations for five or fewer persons of any age for less than 24 hours.
Congregate living facilities with 16 or fewer persons.
Adult and child care facilities that are within a single family home are permitted to comply with the Residential Code of New York State.
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”
Mr. John Mc Hugh, CFO of Ulster Green ARC, read from a statement, asking that those persons with disabilities be treated the same that any other person would wish to be treated. ~That disabled persons should be allowed to live in a resplendent residence in a beautiful area of the Town.
Christopher Smailer, ~Architect for UGARC, made a statement to clear up the question regarding square footage of the residential structure. ~~At the request of the Zoning Board Chairwoman, Mr. Smailer ~presented the Zoning Board with written explanation and formula for the exact building dimensions.
Mr. Paul Kellar, esq. attorney spoke on behalf of the Ulster Green ARC. ~Mr. Kellar stated ~the following
- The building permit was properly issued.
- The application is for a 4660 square foot building.
- The definition of “family” has been defined in cases filed with the N.Y. Court of Appeals.
- The building is considered to be a single family residence under Section 41.34 of the
Mental Hygiene Law.
- Notice to build was sent certified mail to the Town’s Supervisor, Mr. Carl
Chipman, notifying the Town that Ulster Green ARC had an interest to build on the
property on Cedar Ridge Rd. Tax Map #68.3-5-5. ~Sixty day later another notice was sent
by certified mail. ~There was no response by the Town, therefore Ulster Green ARC
applied for and was issued the building permit.
- The Zoning Board of Appeals has no jurisdiction to enforce restrictive deed covenants.
- The Town is in complete compliance with the law.
PUBLIC COMMENT:
Several neighbors spoke indicating that they were very upset that this type of facility could be placed on, what they described as, their quiet serene private road. ~The following are some of their testimonies and assertations:
- Valerie Thompson felt that the structure would be an eyesore. ~They had purchased their
property as an investment toward retirement. ~She felt that with this structure being built that their property values could be lowered.
- Andrew Carney stated that the structure cornerstone would be just 40 feet from his
property line. Also the private nature of the road would be in jeopardy. He stated that on the building permit application the deed restriction was left blank making the structure an unacceptable commercial use. ~He questioned the effect the large septic system and well would have on surrounding properties.
- Dawn Fahey explained that she has 2 small children and the added traffic on the private
road would be a hazard. ~She feels the house is being placed in the wrong location. ~She stated that neighbors were not given due process by the Town not responding to the certified letters.
- Michael O’Connell shared the concerns of others regarding enforcing the deed covenants.
He also stated his concern that it could take emergency vehicles a long time to get to the end of the road in the event of inclement weather, thus endangering the residents of the home. ~He stated that the residence was an incompatible use for the property and a nuisance.
e. John Mashamesh felt neighbors had had no notification that this building was even beingplanned. ~He also was concerned for the devaluation of his property and the possible increase in taxes due to the use of the ARC property being tax exempt.
APPLICABLE LAWS, RULES AND REGULATIONS
Pursuant to the Town of Rochester Code Section ~Section 140-66, the Zoning Board of Appeals is empowered to hear and decide appeals of any Code Enforcement order, requirement, decision or determination in whole or in part or may modify same. ~~Town of Rochester Code Chapter 140-66 sets forth the law for issuance of building permits. ~The NY State Building Code 310R-3 and R-4 sets the guidelines and criterion as to this type of use and structure and that it falls under NYS Building Code as being residential in nature.
BOARD DISCUSSION:
Chairperson Haugen De Puy, Board Member Mallery, Board Member Dawson, Board Member Dunn, and Alternate Board Member Fischer all stated for the record that each of them had read all of the documents submitted, listened and read all testimonies given and reviewed the applicable laws to this case.
RESOLUTION:
Mr. Fischer motioned to uphold the Code Enforcement Officer’s Determination to issue Building Permit #132 of 2013 to Ulster Green ARC to construct a 112’ x 91’ 10” one story single family residence on Cedar Ridge Rd Tax Map # 68.3-5-5 and to deny Mr. Grasso’s appeal of same. Motion seconded by Mr. Dawson.
Discussion on motion: Chairperson Haugen De Puy further noted that this motion is based on the following facts:
- The Town has no jurisdiction regarding the enforcement of deed covenants.
- The building permit was properly issued
- Definition of a family has been clearly defined
- The building is considered to be a single family residence under Section 41.34 of the Mental Hygiene Law.
- Ulster Greene ARC was allowed to proceed with the building permit because they sent notice to the Town and waited the required 60 days for a response and received none.
VOTE:
Haugen- De Puy, Chairperson- Yes Mallery, Vice Chair- Yes
Dunn- Yes Dawson- Yes
Fischer, Alternate- Yes
Motion carried- 5 ayes, 0 nays, 0 abstain, 0 absent
MINUTES
Chairperson Haugen De Puy motioned to approve the February 19, 2013 minutes with the correction of Mrs. Kawalchuk’s attendance. Seconded by Mr. Dawson.
Discussion:
Mr. Dunn tried to listen to the tape of the meeting that was supplied by the Secretary, but it was not clear enough to understand.
Vote:
Haugen- De Puy, Chairperson- Yes Mallery, Vice Chair- Abstain
Dunn- Abstain Dawson- Yes
Fischer- Yes
Motion carried- 3 ayes, 0 nays, 2 abstain, 0 absent
Mr. Dawson motioned to approve the March 14, 2013 minutes. Seconded by Chairperson Haugen De Puy. 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
Mr. Dawson motioned to approve the May 21, 2013 minutes. Seconded by Mr. Fischer. 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
Mr. Dawson motioned to approve the July 16, 2013 minutes. Seconded by Mr. Fischer. 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
Mr. Dawson motioned to approve the August 17, 2013 minutes. Seconded by Mr. Fischer. No discussion.
Vote:
Haugen- De Puy, Chairperson- Yes Mallery, Vice Chair- Abstain
Dunn- Yes Dawson- Yes
Fischer- Yes
Motion carried- 5 ayes, 0 nays, 1 abstain, 0 absent
PUBLIC HEARING
Albert Stephenson, Area Variance for lot density, proposed .81 acre lot in a 5 acre district, Frankel
Road, Tax Map # 60.4-1-20
Mr. Dawson motioned to reschedule the Public Hearing for November 19, 2013. Seconded by Chairperson Haugen De Puy. 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
ADJOURNMENT
Mr. Mallery motioned to adjourn the meeting. Seconded by Mr. Dunn. 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