ZONING BOARD OF APPEALS
TOWN OF ROCHESTER
ULSTER COUNTY
ACCORD, NEW YORK
(845) 626-2434
torpbzba@hvc.rr.com
MINUTES of February 19, 2015 the Town of Rochester Zoning Board of Appeals, held at the Town of Town of Rochester Community Center, 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:
John Dawson, III, Alternate. Rebecca Paddock Stange, Secretary. Attorney for the Town, Mary Lou Christiana.
DISCUSSION
Decision # ZBA13-03APPL, Application by: Salvatore & Daniel Marano, Date of Application: 11/14/13, For: Appeal of CEO Determination of Zoning Permit #300 of 2013 “Two dwellings on less than 2 acres in Business District (Section 140-41B.) Area Variance required (Mobile Home has been vacant for more than 5 years)”
Chairperson Haugen De Puy noted that this meeting was to discuss a decision from 2013 where the ZBA overturned the ruling of the Code Enforcement Officer Zoning Permit #300 of 2013 “Two dwellings on less than 2 acres in Business District (Section 140-41B.) Area Variance required (Mobile Home has been vacant for more than 5 years)”
She continued to note that after the decision was made, records were found from the 1970’s from the ZBA Office. Ed Deyo, who was the CEO at the time, issued the Marano’s a ticket regarding density and the second trailer. There was also a 10 unit motel on the property and an existing trailer. According to the records, the Marano’s were not happy with the determination and were granted a 2 year extension to leave the second mobile home there due to various financial problems of the applicants. After the 2 years were over, there is a letter from the Marano’s Attorney to the Town Attorney requesting that they postpone court once more because of the Marano’s continued claim of financial hardship. This is the end of the records and it just appears to have died in Court.
Mrs. Christiana, Attorney for the Town, noted that the Court gave a stay and said that they would review it again in 6 months. So, nothing happened. This was never a pre-existing non-conforming use. They went for a variance back in the 70’s and were told they would have a 3 month extension to move the second mobile home. They did not, so the CEO gave them an appearance ticket, and the rest is as the Chairperson stated already. So, the question is, did the stay still exist? When they came in in 2013/2014 the Town thought the second mobile home was a pre-existing-non-conforming use, which now we know it wasn’t. It was illegal in the first place and then the applicant came in and proved that it wasn’t abandoned and they won. The current CEO, Mr. Davis, said if he would have known that it wasn’t abandoned, he wouldn’t have denied the request to replace it. The ZBA reversed Mr. Davis’s decision, but he didn’t have all of the background information. She questioned if the Marano’s had done anything in regards to placing the new mobile home as a replacement yet?
Mr. Fornal answered no.
Mr. Fischer commented that there was no new trailer or site work.
Mr. Mallery clarified that there was never a variance granted for the second mobile home to begin with?
Mrs. Christiana answered no, there was not.
Mr. Mallery questioned what the ZBA did in this case in 2013/14?
Mrs. Christiana noted that they reversed the CEO’s determination that it was abandoned and needed an area variance to be replaced. They did not grant an area variance, just the determination that one was needed.
Mr. Mallery questioned if they could deal with a need for a variance that was neglected for 40 years.
Mrs. Christiana noted that neither the applicant nor the Town had followed up on this.
The Board discussed what their next steps would be. Did they leave this situation alone? Was it the ZBA’s job to question this? Did the applicant know and not alert the Town?
Mr. Fornal noted that this was a huge expansion of use. They are now asking for a home that is 73% larger than the one that they had there to begin with. That is a substantial increase in use.
Chairperson Haugen De Puy questioned the Attorney’s guidance as this was not a situation that she was familiar with.
Mrs. Christiana noted that the ZBA can re-open the hearing with a unanimous vote.
Mr. Dunn stated that they wouldn’t get one. They looked at the evidence that they had at the time to make that decision. He questioned where the Board was going with this? He understood their position, but it didn’t make it right. They needed to look at people in the community and help them.
Mr. Fornal noted that they couldn’t grant relief from legality.
Mrs. Christiana offered an alternative to re-opening the Public Hearing. The ZBA could write a letter to the CEO and alert him of the additional information that was discovered. It would be up to him to review the new information and to see if that would change his original determination as he didn’t have it at the start of this process in which to base his decision off of.
Mr. Dunn noted that the Town should use this as a lesson learned, but to go back and take it away is not the right answer. They are good folks and the Town should be helping people. Yes, this has gone on for 40 years, so, with that history to it, did it really matter?
Mr. Fornal noted that the ZBA’s job is to make sure that no harm comes to the community. The septic and water there is a problem.
Chairperson Haugen De Puy reiterated that the Board only knew it was illegal once they found the file.
Mr. Fornal reiterated that the ZBA was told that it all existed prior to Zoning. If the Board leaves it up to the CEO and he doesn’t reverse his determination, the ZBA can’t do anything. They can do this on their own now by re-opening the Public Hearing with a unanimous vote.
Chairperson Haugen De Puy questioned if by the ZBA overturning their own decision, this would make them arbitrary and capricious and open to an Article 78?
Mrs. Christiana noted that there was new evidence so they could do it.
Chairperson Haugen De Puy wasn’t comfortable with the ZBA overturning their own decision. For the time she’s been on the Board since the 1980’s, she has never seen it happen. To err on the side of caution, she would prefer to have Jerry’s backing on this.
Mr. Fornal questioned how Jerry could overturn his own decision?
Mrs. Christiana noted that there was new evidence so he could do it.
Mr. Dunn agreed with Chairperson Haugen De Puy and thinks this should be up to the CEO.
Mrs. Christiana noted that this is unique because there is new evidence. She has represented 5 different municipalities for 25 years. She has only once ever seen the ZBA re-open a hearing and that was by the applicant who came forward with new information to benefit his case. This is how rare it is, but it is provided for in the law.
Mr. Fornal made a motion under NYS Law, which requires a unanimous decision to reconsider ZBA ZBA13-03APPL, Application by: Salvatore & Daniel Marano, Date of Application: 11/14/13, For: Appeal of CEO Determination of Zoning Permit #300 of 2013 “Two dwellings on less than 2 acres in Business District (Section 140-41B.) Area Variance required (Mobile Home has been vacant for more than 5 years)” based on newly discovered information and the ZBA’s knowledge that the original variance to place the second mobile home was never granted. Seconded by Mr. Mallery.
Vote:
Haugen- De Puy, Chairperson- Yes Mallery, Vice Chair- Yes
Dunn- No Fornal- Yes
Fischer – Yes
Since the vote was not unanimous, the motion did not pass.
Mr. Dunn noted that they were living on a peninsula lot between two major highways, trying to get by and it even had a motel on it years ago. The point is that this isn’t right. It’s been overlooked for half of a century and no one has been complaining. It’s been improved throughout the years and looks better than what it was. He urged the Board to learn from it and move on. Why hurt members of the community?
Mr. Fornal questioned why the ZBA was okay with letting this applicant expand by 73%? If he came back in for a variance, then the Board could make him get the proper permits.
Mr. Mallery agreed noting that if they did nothing, it would still be illegal and someone else would have to deal with this years down the road. If the applicant came back in, the ZBA could put conditions on the variance. Maybe Marano even has documentation that the Town doesn’t have where the Town approved it.
Mr. Fornal made a motion for the Chairperson to send a letter to the CEO detailing new evidence was uncovered and to ask him to investigate and take any action he deems appropriate. Seconded by Chairperson Haugen De Puy.
Vote:
Haugen- De Puy, Chairperson- Yes Mallery, Vice Chair- Yes
Dunn- Yes Fornal- Yes
Fischer – Yes
Motion carried.
Mr. Dunn noted that from a moral standpoint, it would be difficult to do nothing.
ACTION ON MINUTES
Mr. Fischer motioned to approve the December 18, 2014 Minutes. Seconded by Mr. Fornal. No discussion.
Vote:
Haugen- De Puy, Chairperson- Abstain Mallery, Vice Chair- Yes
Dunn- Abstain Fornal- Yes
Fischer – Yes
Motion carried.
MOTION TO ADJOURN
Mr. Dunn motioned to adjourn the meeting seconded by Mr. Fischer. No discussion. All Members present in favor.
Since there was no further business, at 7:50PM Chairperson Haugen De Puy adjourned the meeting.
Respectfully submitted,
Rebecca Paddock Stange, Secretary