ZONING BOARD OF APPEALS
TOWN OF ROCHESTER
ULSTER COUNTY
ACCORD, NEW YORK
(845) 626-2434
btetro@townofrochester.ny.gov
MINUTES of the April 16th, 2020 Town of Rochester Zoning Board of Appeals, held via Zoom and Livestreamed on Youtube.
Chairman Mallery called the meeting to order at 7:00PM.
Chairman Mallery recited the Pledge to the Flag.
PRESENT: ABSENT: VACANT:
Cliff Mallery, Chair Steve Fornal
Bruce Psaras, Vice Chair Erin Enouen
Charlie Fischer
ALSO PRESENT: Mary Lou Christiana, Town Attorney, William Barringer, Alternate. Brianna Tetro, Secretary. Mike Baden, Town Supervisor and meeting host.
*Chair Mallery read the following statement before the applications were reviewed:
“I have confirmed with the Town’s Counsel that tonight’s meeting has been convened in accordance with the Governor’s March 13, 2020 Executive Order 202.1 which suspends certain provisions of the Open Meetings Law to allow a municipal Board to convene a meeting via videoconferencing. In accordance with the Executive Order, the public has been provided with the ability to view tonight’s meeting via YouTube and a transcript will be provided at a later date.
The Secretary has completed a roll call of the Board Members and there is a quorum present for this meeting. I have also confirmed with the Secretary that this meeting has been duly noticed.
We have fulfilled our legal notice requirements by posting Notice on the Town Clerk bulletin board and outside door, posting legal notice in the Daily Freeman, and posting notice on the Town’s website.”
APPLICATIONS:
*Chair Mallery noted that Alternate Mr. Barringer would be joining the discussion as they were down two members.
*Supervisor Baden suggested that when voting on a motion, the Board should do a roll call so it would be known how each member voted.
CONTINUED APPLICATION
2019-07AV- Stecyk, Oleh
Area Variance
295 City Hall Rd./ SBL: 68.3-4-6/ R-2 District
Proposed Use: Deck
– Area Variance required: Applicant proposes 11’ Side Yard Setback in an R-2 district.
Chair Mallery stated that they had received a written document from Mr. And Mrs. Stecyk that had explained they could not make the meeting that evening. Chair Mallery asked if the Board wanted to table the meeting until the May 21st, 2020 Regular meeting.
Mr. Psaras motioned to table application until the May 21st, 2020 regular meeting. Mr. Fischer seconded the motion.
ROLL CALL:
Chair Mallery- Yes Mr. Fischer- Yes
Mr. Psaras- Yes Mr. Barringer- Yes
All in Favor. Motion Carried.
4 ayes, 0 nays, 0 absent, 0 absentions, 2 vacancies
NEW APPLICATION/PRE-APP
2020-03 AV- Sisson, Kevin and Christine
Area Variance
192 Rochester Center Rd/ SBL: 68.3-2-33/ R-2 District
Proposed Use: 18’x30’ garage to be used for storage.
– Area Variance required: Does not meet side or front yard setbacks. Access
structure not permitted in front of residence.
Mr. Kevin and Mrs. Christine Sisson were present on behalf of the application.
Chair Mallery asked what new evidence they had to present to the Board as their application had been denied in May 2019.
Mr. Sisson stated they wanted to figure out how they would be able to keep their garage where it was without the need for such a large variance. He stated what Mr. Fornal had stated in the denial from May 2019 was false.
Chair Mallery stated there was nothing from them in writing about what had been false and what they disagreed with in the May 2019 denial.
Attorney Christiana noted that there needed to be new evidence presented by the applicant on how this application was different. She also stated the Board would need to vote on re-hearing the application. She said if they didn’t agree with the initial denial they should have moved forward with an Article-78 but if they had new evidence that the application was different from the previous denial they Board would need to be unanimous on hearing it.
Mr. Sisson said their previous denial had never been mailed to them, so they didn’t have a chance until recently to read exactly what had been stated.
Attorney Christiana asked the Secretary if she had mailed out their decision.
The Secretary stated it had been mailed out at the exact same time other copied contacts had been given the decision.
Attorney Christiana asked the applicant if they had been at the meeting in May 2019.
Mr. Sisson said yes.
Attorney Christiana said then they knew the application had been denied then. She added if they wanted to have the Board potentially review the new application, with new evidence, there needed to be something provided in writing.
Chair Mallery also retierated the need for something in writing where it explained how the new application differed or referred to specific changes from the previous year’s denial.
There was no further discussion.
CONTINUED APPLICATION/PUBLIC HEARING
2020-02AV- Borrego Solar/ Paddock, Adam & Jaime
Area Variance
4784 Route 209/ SBL: 69.3-2-23/ R2
Proposed Use: The northeastern property line is proposed to be moved
approximately 35’-50’ to The northeast, enlarging the size of the lot to 2.896 acres.
-Area Variance required: Proposed use not permitted. Making a non-comforming use more non-comforming.
Mr. Adam Paddock, Property Owner and Mr. Brandon Smith, Borrego Solar, were present on behalf of the application.
Mr. Smith refreshed the Board about what the application was all about. He reiterated that they were asking for a variance in order to stay within the characteristics of the neighborhood, they weren’t changing anything about the parcel such as adding or taking away residences or changing the use, and would be moving the property line so the entire easement would be on one parcel. He noted the parcel on the north side of the property was already non-conforming and moving the property line would make it only slightly more non-conforming.
Chair Mallery asked him what the acreage would be.
Mr. Smith stated it would go from 1.851 acres to 1.393 acres.
Chair Mallery asked if the proposed line adjustment were the same as the last time the application had gone in front of the Board?
Mr. Smith stated very little had changed and other methods had been discussed but the current map had the most logical design and outcome.
Chair Mallery said according to his recollection there had been a discussion about two lines that did form two perfect rectangles.
Mr. Smith stated it may have been discussed but the way they had the maps configured at the moment was the best scenario to have the easement be on one parcel.
Chair Mallery stated the application was classified as a Type II for SEQRA.
Mr. Psaras asked what the set backs were to the house from the proposed new property line.
Mr. Smith explained it was about 45 ft.
There was no further discussion.
Chair Mallery opened the public hearing.
Mr. Adam Paddock thanked the Board for taking time for the application. He said there were basically three options for the properties and one would be leaving it alone and having a shared Road Maintenance Agreement between the north and south property and Borrego. He said they could move it to the south property which would cause a shared driveway agreement for next hundred or so years or they could move the lot line which would make the already non-comforming lot just slightly more non-comforming but the line was nice and neat in the fact that the road and the 20 year lease and the Central Hudson pole would be all on one property. He said that he had been the Vice-Chair of the Town of Rochester Planning Board for many years and he remembered sending a couple applications to the ZBA during that time and he took a look at one that had been somewhat memorable and it was from May 18th, 2017 for a Sarah Harris who lived up on City Hall Rd. He stated that she had two houses on 2.9 acres and the Zoning Board allowed her to divide those into 1.45 acre lots making the non-conforming lots more non-conforming. He said there was no build ability on the lots and another structure could not be made.
There was some further discussion among the Board.
Chair Mallery made the motion to keep the public hearing open until the May 21st, 2020 Regular meeting. Mr. Psaras seconded the motion.
ROLL CALL:
Chair Mallery- Yes Mr. Fischer- Yes
Mr. Psaras- Yes Mr. Barringer- Yes
All in Favor. Motion Carried.
4 ayes, 0 nays, 0 absent, 0 abstentions, 2 vacancies
CONTINUED APPLICATION/PUBLIC HEARING
2020-01AV- Hoots, Allison& Sean
Area Variance
122 Catalpa Ln. / SBL: 77.3-1-8/ R2
Proposed Use: Use the space that is just under 800 sq ft of accessory building for private commerical music studio, consistent with a Class II Home Occupation Class II- requiring an area variance to fit musical instruments and equipment.
– Area Variance required: Home Occupation Class II: Proposed exceeds 500 sq ft of floor area 140- 19 A.
Mr. Sean and Mrs. Allison Hoots were present on behalf of the application.
Both Mr. And Mrs. Hoots read statements that they had prepared in response to the application and the criticism they had received from various neighbors. Mrs. Hoots statement had particular emphasize on how the proposed music studio use would not cause more noise or traffic on the private road.
Chair Mallery asked Mr. Hoots how many instruments would be in the proposed studio.
Mr. Hoots responded that there would be many instruments and went through the layout of the building along with what each room of the 3 rooms would be used for should they get approved for a home occupation.
Chair Mallery asked if they had used the building for recording anything.
Mr. Hoots said he had used it to help a friend with music for a documentary but he had not been compensated and did it purely to assist his friend as a favor.
The Board and applicants discussed various more items in regards to the building’s use. Much of the discussion were items that had been addressed at the February 2020 meeting.
Mr. Psaras asked about the total square footage of the building.
Mr. Hoots answered it was 4200 sq.ft. And there was about 500 sq. ft. That would be used as an auxiliary space for guitar cases and would not be used for anything other than storage.
Mr. Psaras asked about the Class I Home Occuaption that Mrs. Hoots had obtained.
Mrs. Hoots stated she had received a Class I Home Occupation in November or December 2018 and it was for her small office inside of her home as she is an attorney for a firm in Washington DC and telecommutes.
Mr. Psaras asked why they were trying to obtain 2 Class II Home Occupations if she worked in her home.
Mrs. Hoots answered she wanted to move her office over to the other building, but only needed 100 sq. ft to do that.
Mrs. Hoots reiteterated for the Board that the building was so large because there was a basement and because there had been a lot of sound proofing.
The Board opened the public hearing.
Ms. Emily Svenson spoke on behalf of Ms. Rovika Rajkishun and David Austerweil. She reminded the Board that she was representing several other neighbors and that they had an appeal in front of the ZBA. She stated the appeal could not be cured with an area variance and they were strongly opposing the area variance as it would stay with the land forever and there was no guarantee on what someone might use it for in the future should the variance be obtained. She read from the Code a portion of the description of a Home Occupation Class II: A low-impact home-based business or commercial activity administered or conducted as an accessory use that is clearly secondary to the use as a residential dwelling and does not significantly change the character thereof, involve the use of mechanical equipment other than that customarily used for domestic purposes and Ms. Svenson argued that the instruments were equipment that would produce noise and stated one of her clients could still hear noise coming from the music studio even while she was inside her home. Ms. Svenson also showed a picture of the Board of a large moving van that she said had sat in front of the Hoots’ homes for a week and that was disruption to the road.
Chair Mallery asked Ms. Svenson for clarification on the large moving van.
Mrs. Hoots stated the van had been there because they had to have their porch roof replaced.
Ms. Sveson said one of her clients, Mr. Jesse Marcus, would speak to that as he had provided the photo.
Mrs. Hoots explained how DBA worked in regards to the issue of her neighbors stating they could still hear noise form the studio.
Chair Mallery provided a hypothetical situation to his son having a garage band and recording music and then selling it, would that be considered a Home Occupation? He stated Mr. Hoots was a musician so what would be the difference?
Ms. Svenson stated the Code did not offer a lot in that regard and that it does not say anything about money being exchanged but when someone crossed from personal to use to commercial use, it would be a Home Occupation.
Mr. Jesse Marcus stated he was a next door neighbor of the Hoots’. He explained he had lived on the road for 15 years and was the president of the Catalpa Lane Association. He stated it was hard to trust the situation as since the Hoots’ had moved on the road there had been nothing but trucks and vans going back and forth from their home while building the studio and there still were because the Hoots’ always seemed to have something wrong with their home. He said it was non-stop. He also stated the Home Occupation would negatively impact the road as people purchased their homes for peace and quiet and further stated that other people on roads nearby to the Hoots’ had also complained about the noise, etc. Mr. Marcus said a music studio in the area would cause more negatives to the market values of the homes on the road. He said when the Hoots’ had first told the road about the studio they said it was going to be small and would be accessed from a different road and he said the entire road was opposed to the studio that was why there were all there that evening. He said they had tried to schedule a meeting with the Hoots’ several times and they had cancelled. Mr. Marcus stated that the 1.5 Million Dollar studio would increase traffic, despite what the Hoots’ were saying otherwise. He said there were so many issues since the Hoots’ had moved in and everyone complains to him and the residents bought homes in an R2 zoned area to not have to deal with a music studio. He said there was a law for a reason, here they all were voicing their concerns, and all he had to say was there were so many letters from all the neighbors and people had bought their homes for the peace and quiet and not deal with noise from a music studio.
Ms. Rovika Rajkishun and Mr. David Austerweil stated there were 23 neighbors still opposed to the proposed studio use and they had added 3 more. Ms. Rajkishun said the neighbors were all directly affected and the Hoots’ had demonstrated that they do not care. She said they were bothered by it every day, emotionally and mentally, because of the daily noise. She went on to state gain that they were all 100% opposed to the music studio and if the ZBA granted the variance it would set precedence for future variances. Ms. Rajkishun said people’s homes were their sanctuary, especially right now during the pandemic, and here they were still complaining about the Hoots’ million dollar property. She said the use should not be allowed.
Mr. Steve Tiffany said his biggest concern was the traffic. He said they lived on a dead end road and the Hoots’ were at the end of the road. He said there were trucks constantly coming and going from their property and the studio would quadruple the incoming and outgoing traffic. He said it would cause a lot of dust on the road and they all paid to maintain the road, but not the Hoots’. He said there was a lot involved and mentioned loss of privacy and property values.
No one else from the public spoke.
Attorney Christiana stated she just wanted to state for the record that they had received letters the day before or the day of the meeting including one from Mr. Steve Fornal and she asked if Brianna Tetro, Secretary, had the names of the others that had come in.
Chair Mallery stated he had received a package from Ms. Tetro that included the letter from Mr. Fornal as well as several others. He stated the only items he hadn’t reviewed yet was a letter from Ms. Svenson and another item.
Ms. Tetro stated there had been a letter from Allison Hoots.
Attroney Christiana stated that she just wanted to make sure the Board members had the letters and would look at them.
Mr. Psaras made the motion to keep the public hearing open until the May 21st, 2020 meeting. Mr. Fischer seconded the motion.
ROLL CALL:
Chair Mallery- Yes Mr. Fischer- Yes
Mr. Psaras- Yes Mr. Barringer- Yes
All in Favor. Motion Carried.
4 ayes, 0 nays, 0 absent, 0 abstentions, 2 vacancies.
NEW APPLICATION
2020-01CA- Rajkishun, Rovika- Austerweil, David-Marcus, Jesse- Tocco, MaryJean- Tiffany, Steven
Appeal of Code Enforcement
122 Catalpa Lane- Recording Studio
Reason for appeal: Appealing Code Enforcement Officer’s January 22nd, 2020 determination.
Ms. Emily Svenson was present on behalf of the appellants.
Ms. Svenson explained what the appeal was about. She stated why they did not believe the purposed use of a Home Occupation Class II would be allowed and why they were opposed to it. She said the building was too large for a Home Occupation Class I and II and even too large for a Home Occupation Class III, which was absolutely not allowed in the R2 zoning district and that this was important to consider as it was clear the building would be used for purely commercial use.
The Board discussed the application but a lot of what had been discussed in the previous application was relevant to the questions and concerns of the appeal, since they were for the same use and building.
Mr. Fischer made the motion to schedule the application for public hearing at the May 21st, 2020 regular meeting that would take place via video conferencing again. Mr. Psaras seconded the motion.
ROLL CALL:
Chair Mallery- Yes Mr. Fischer- Yes
Mr. Psaras- Yes Mr. Barringer- Yes
All in Favor. Motion Carried.
4 ayes, 0 nays, 0 absent, 0 abstentions, 2 vacancies.
There was no further discussion.
OTHER MATTERS:
-Accepting the regular meeting minutes of December 19th, 2019 and February 20th, 2020.
Mr. Psaras made the motion to accept the minutes from the December 19th, 2019 regular meeting. Mr. Fischer seconded the motion. Chair Mallery abstained.
ROLL CALL:
Chair Mallery- Abstain Mr. Fischer- Yes
Mr. Psaras- Yes Mr. Barringer- Yes
Motion Carried.
3 ayes, 0 nays, 0 absent, 1 abstentions, 2 vacancies.
Mr. Psaras made the motion to accept the minutes from the February 20th, 2020 regular meeting. Mr. Fischer seconded the motion. Chair Mallery abstained.
ROLL CALL:
Chair Mallery- Abstain Mr. Fischer- Yes
Mr. Psaras- Yes Mr. Barringer- Yes
Motion Carried.
3 ayes, 0 nays, 0 absent, 1 abstentions, 2 vacancies.
ADJOURNMENT:
Chair Mallery made the motion to adjourn the meeting at 9:20pm. Mr. Barringer seconded the motion.
ROLL CALL:
Chair Mallery- Yes Mr. Fischer- Yes
Mr. Psaras- Yes Mr. Barringer- Yes
All in Favor. Motion Carried.
4 ayes, 0 nays, 0 absent, 0 abstentions, 2 vacancies.
Respectfully Submitted,
Brianna Tetro, Secretary
Accepted May 21st, 2020