ZBA Minutes – August 2014 | Town of Rochester

ZONING BOARD OF APPEALS
TOWN OF ROCHESTER
ULSTER COUNTY
ACCORD, NEW YORK

MINUTES of August 21, 2014 the Town of Rochester Zoning Board of Appeals, held at the Town of Accord Fire Hall, Accord, NY.

Chairperson Haugen De Puy called the meeting to order at 7:00PM.

Pledge to the Flag.

PRESENT: ABSENT: Beatrice Haugen- De Puy, Chairperson

Cliff Mallery, Vice Chair

Charlie Fischer

Steven Fornal

Troy Dunn

Also present:

Rebecca Paddock Stange, Secretary.

PRE-APPLICATION PRESENTATION

Regina Risa Ender, Nutmeg & Ginger Road, Area Variance required to subdivide 2.7 acres into two lots in an R-5 District. Property contains two separate residences: 25 Ginger Road and 40 Nutmeg Road. Each have their own wells and septics

Ms. Ender was present along with her realtor Laurie Willow. Ms. Ender indicated that she was interested in dividing her property and separating her houses as she was considering selling one of them.

Chairperson Haugen De Puy noted that in an R-5 District, each lot that is created is supposed to be a minimum of 5 acres. The applicant is asking for more than a 75% variance.

Ms. Ender noted that she built the second home about 10 years ago and when she did that, it was 1 acre zoning and she didn’t think about the laws changing in the future. She noted that the land and the homes are independent of each other and appear to be 2 entirely different properties with their own road frontage on different roads. You wouldn’t even know that the parcel is connected from looking at it. She is happy for the 5 acre zoning change and she understands its need, but she is not asking to build anymore. She has what she has. One parcel has a home and sheds and has a nice place to store wood—everything that needs to be done on the property is done. There will be no more building on the lots and they already look like they are separate lots. This is also bringing another taxable property to the town.

Chairperson Haugen De Puy noted that the ZBA has to look at this from a legal standpoint and the laws that the Town has in place now.

Ms. Willow noted that they would be trading 1 taxable lot for 2 taxable lots and they would have 2 owners rather than 1 renter of the other property.

Chairperson Haugen De Puy noted that this application would be looked at on its own merits.

Ms. Willow noted that there are unique reasons to this property, so just not to give it based on the 75% that was mentioned by the chairperson—

Mr. Fornal questioned how the applicant came to the conclusion that this would create more revenue for the Town? What were the individual assessed values?

Ms. Willow noted that they would be assessed more as 2 separate properties with 2 separate homes. She wasn’t sure what the actual assessment would be.

Mr. Fornal questioned if the applicant owned any contiguous land to this parcel?

Ms. Ender replied no.

Mr. Fornal questioned if she would be willing to put any deed restrictions for no more building? He also questioned what the ground and soil conditions were.

Ms. Ender noted that both septics are inground. The soil varies from silty to clay. There is also a small pond.

Chairperson Haugen De Puy questioned if the applicant knew the size of the septics?

Ms. Ender didn’t know, but they were both engineered.

Mr. Fornal noted that the Ulster County Health Dept. (UCHD) requires reserve fields—did the applicant know if they had reserve fields and where they were located?

Ms. Ender noted that they both have significant leech fields.

Mr. Fornal noted that it wasn’t a leech field he was talking about—it was a reserve area in case the existing septic failed—there would be another place on the property to put another one.

Chairperson Haugen De Puy questioned when the property was purchased.

Ms. Ender noted that the property was purchased about 20 years ago with one house on it and then about 10 years ago, she built another one. She lives in the newer house. She is a single mom with 3 kids and she is now thinking it would be the best thing for her family to be able to sell the other home.

Mr. Mallery questioned if she had gotten a building permit when she put up the newer house?

Ms. Ender replied, yes. Doug Dymond was the building inspector at the time.

Mr. Mallery questioned what the lot dimensions would be.

Ms. Ender noted that she shows the approximate location of where the line will go on the Aerial photo that she supplied. She noted that the two homes couldn’t see each other. They were very independent of each other.

Ms. Willow stated that they didn’t want to get a survey until they had an idea that this was going to be granted as it is an expensive thing to get.

Mr. Dunn noted that this appears to be a case where this woman bought this property 21 years ago and it was zoned R-1, and she built another home 10 years ago. Everything was done with permits and up to regulations and now in 2009, her property was rezoned from R-1 to R-5. The Board needed to look at the intent of that. He’s assuming it was to keep from being over built and so they made it required to have 5 acre lots. The thing with this is they aren’t creating any more density if they granted this. The structures already exist. So, the ZBA does meet the intent of R-5. They aren’t allowing anything new to be built—the impacts are already there. This is a case where someone got caught up in the changes because the Town Government thought it would be a good idea. It was not R-5 when this person built the second home and now that their dynamics have changed, they are asking to split it. She’s just asking to do with her property what she was allowed to do 9 years ago.

Mr. Fornal noted that the intent for this area is based on water issues. In terms of the ZBA’s consideration, she needs to show why this is unique. All properties are in the same boat where what they were allowed to do 9 years ago has changed.

Ms. Willow noted that Clove Valley has a tremendous aquifer.

Mr. Fornal noted that depending on where the property is makes a huge difference.

Chairperson Haugen De Puy noted that as discussed tonight, they were building a case and needed to collect evidence and document it to base their decision off of.

Mr. Dunn noted that in regards to the water usage—this is an unnecessary conversation. The homes are already there. They wouldn’t be flushing any more toilets than yesterday.

Ms. Willow noted that when they designed the septic they had to do it to UCHD standards and have the proper UCHD permits.

Mr. Dunn noted that as already stated, the applicant isn’t proposing to build anymore. Everything there already exists.

Mr. Fornal noted that he was talking about the septic reserve area and if one exists on each lot in case the existing systems fail.

Ms. Willow stated that Dean Palen was running the UCHD. They wouldn’t have been issued the building permits if they didn’t pass Mr. Palen’s UCHD permitting first.

Chairperson Haugen De Puy instructed the applicant to go to the Building Dept. and get the UCHD permits for her homes. She wants to establish a record so if there are any questions regarding this application in the future, the ZBA has a solid case and can show that it was well documented and any decisions that were made weren’t arbitrary and capricious. She agreed that this is a different case than the ZBA normally sees. The ZBA gets many applications for people wanting to add another home to a lot that didn’t already, or then wouldn’t meet the zones acreage density. There are already two different homes on one parcel with their own road frontage and wells and septics on this property. This is why the case needs to be carefully documented, to show that it is different. She now read the balancing test in which the ZBA bases 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; No, the applicant did not have other contiguous lands.

(d) whether the proposed variance will have an adverse effect or impact on the physical or

environmental conditions in the neighborhood or district; This is where the septic questions will come in to play

(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. Maybe it could have been split sooner

(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.

Chairperson Haugen De Puy noted that she would really like to see what the lot size actually is.

Ms. Willow re-iterated that they really didn’t’ want to pay for a survey until they knew that this was going to be granted.

Mr. Mallery suggested getting a copy of the deed in the meantime. He also questioned what the Board thought might be a downside to granting this variance?

Chairperson Haugen De Puy noted that precedence could be one.

Mr. Fornal noted that he would like the opinion from the Attorney for the Town on that.

Mr. Fornal motioned to send a letter to Mary Lou Christiana to get her opinion for setting precedence on this case. No discussion.

Vote:

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

Dunn- No Fornal- Yes

Fischer – Yes

Motion carried- 4 ayes, 1 nays, 0 abstain, 0 absent

Mr. Mallery noted that it would be prudent to hear of the uniqueness that sets this apart from other requests for density variances.

Chairperson Haugen De Puy motioned to schedule the Public Hearing for September 18, 2014 at 7PM at the Town Hall, pending receipt of the application by September 4, 2014 and not publish notice in the Shawangunk Journal and post notice at the Town Clerk’s Office. Seconded by Mr. Fornal. No discussion.

Vote:

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

Dunn- Yes Fornal- Yes

Fischer – Yes

Motion carried- 5 ayes, 0 nays, 0 abstain, 0 absent

ACTION ON MINUTES:

Chairperson Haugen De Puy motioned to table the minutes of June 2014. Seconded by Mr. Dunn. No discussion.

Vote:

Fischer: Yes Dunn- Yes

Mallery: Abstain Fornal- Yes

Haugen- De Puy: Yes

Motion carried- 4 ayes, 1 nay, 0 abstain, 0 absent

ADJOURNMENT

Mr. Dunn motioned to adjourn the meeting. Seconded by Fornal . All members present in favor.

Since there was no further business, at 7:30PM Chairperson Haugen De Puy adjourned the meeting.

Respectfully submitted,

Rebecca Paddock Stange, Secretary