ZONING BOARD OF APPEALS
TOWN OF ROCHESTER
ULSTER COUNTY
ACCORD, NEW YORK
(845) 626-2434
torpbzba@hvc.rr.com

MINUTES of January 21, 2016 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 Charlie Fischer
Steven Fornal
Troy Dunn
Cliff Mallery, Vice Chair

Also present:
John Dawson, III, Alternate. Rebecca Paddock Stange, Secretary.

PRE-APPLICATION PRESENTATION
Barry Koffler, 14 Ginger Road, High Falls, request for 2 lot subdivision in an R-2 District where lot A=4.3 acres and lot B=1.2 acres, “ Area Variance required, R-2 District- New Subdivision requires 2 acre lots”, Tax Map #77.2-3-42

Mr. Koffler was present on behalf of this pre-application presentation. Mr. Koffler explained that he would like to cut off a piece of his property by Clove Valley Road. He can only bring it down so far because there is fencing there, but his friends want to built there and help him with his farm and take care of the place. He couldn’t see any other way to cut the property. Right below that line is the perimeter fencing and pond and the barn right below that. He didn’t see a way to extend that piece. He worked with rare breeds of chickens and endangered birds and geese. The property on the other side of his home abuts up to another property and he believes it is too wet to build on. There is also no access other than through his property. He wasn’t sure how big that end was.

Chairperson Haugen De Puy noted that the Board is required to give the least amount of a variance. She was curious if even with the wetlands if they could achieve the 2 acres and the person could still have room to build.

Mr. Koffler noted that that area was all pasture that he uses heavily and there was no road access from back there, and there was chain link fence that was buried in the ground. He was looking to sell the 1.2 acres to his friends for a nominal fee.

Mr. Mallery noted that he could think of a couple of options without needing a variance. He could make it two acres and retain a permanent easement. The fence is there, but it doesn’t matter if he retained rights to use the area.

Mr. Fornal agreed and noted that he could even get the acreage from another part of the property in the back. He did a little research and used Google Earth Pro and used approximate measurements. They could use the 1.2 acres and go back with a property line, 20’back to the rear of the property to get the additional acreage needed to make the 2 acres required by the District. He could get an easement and a covenant. The easement would allow Mr. Koffler use that he’s always had and the covenant would restrict any building or anything that he wanted. So, it would just be to get the 2 acres, but the person he wanted to sell the property to would essentially have 1.2 acres and only allowed to build and stay on that property and that is what they would need to accept it if they wanted the property. If they agreed, then they would have the required acreage and Mr. Koffler’s property would stay basically the same. The only thing would be that 1.2 acres—he would have to get septic, a reserved septic field, and separation for a well. He should be able to get that on 1.2 acres. Basically right now he is asking for a 40% density variance which is substantial. The reason the Town changed the density from 1 acre throughout the Town to what it is now was to protect the water usage throughout the Town and if this were granted, it would set a precedent. This is a way to get what he wants and still meet the density without undermining the density. He would just need to go to the PB for a Minor Subdivision.

Chairperson Haugen De Puy noted that the variance runs with the land. His friends may not always live there, so he will want to protect himself and what he wants.

Mr. Koffler noted that it was separated when he bought it.

Mr. Dunn suggested that the applicant get with a good surveyor or Attorney and see what is best for Mr. Koffler. He needs to decide on his objective, which was to cut off 2 acres, and however he gets there, to make sure it’s the best way for him.

Mr. Koffler noted that the small strip of land as laid out by Mr. Fornal would be irrelevant because if he put the restrictions on it no one would be able to use it. He thanked the Board for the options they were presenting.

Mr. Dunn also noted that he would need to make sure that he met his setbacks to his existing structures.

Mr. Mallery also noted that no one is saying it has to be a straight line either.

Mr. Dunn noted that what the Board was doing here was technically circumventing the intent of the density, but they were trying to be helpful.

Mr. Fornal noted that they were being creative to get to the 2 acres.

The Board all agreed that there were various things that could be done to achieve that.

Mr. Koffler questioned if he could build a home without even subdividing?

Mr. Fornal answered yes, however resale may be trickier having to sell two homes.

Mr. Dunn noted that he could always subdivide later and build the house now. There are so many paths the applicant could take to get to his final destination. He believes that the set up that Mr. Fornal offered was a good idea, but in his opinion, that would also affect resale in the future and he just wanted the applicant to be aware of that as well. He didn’t want him to create problems. In his opinion he would look at keeping all the property in one location, rather than splitting it up in two different locations with a long, narrow strip of land connecting them, and then just put an easement as suggested previously. Also, he wasn’t sure what kind of home his friends wanted, but things like trailers are moveable. There are a myriad of solutions. They could split it now or later.

Mr. Koffler thanked the Board for all of their guidance.

OTHER MATTERS:
ALTERNATE:
Chairperson Haugen De Puy noted that she wanted to discuss procedures and new proposals about trainings being met and meetings being attended. There is a public hearing next Thursday with the Town Board at 5:30pm.

The Secretary noted that as she understood it, the Town Board is proposing new procedures to handle members who don’t meet their training requirements and who don’t attend meetings on a regular basis.

Chairwoman Haugen De Puy wanted everyone to be aware of this. She spoke with Mr. Dawson, the Board’s alternate, this evening and they were wondering where the procedure states that in the Alternates cannot be seated at the table. He understands that he can’t speak because he is the Alternate and it makes the Board look like it’s a 6 member Board and that is where she is trying to lean away from because they are a 5 member Board. She isn’t sure that the ZBA shouldn’t present something for the public hearing.

The Secretary noted that the Public Hearing is only on the specific procedures that they have proposed.

Mr. Fornal noted that it’s basically training.

The Secretary agreed and noted that it wasn’t anything specific towards Alternate Members, it covered everyone.

Mr. Fornal wasn’t sure that it was a law.

Chairperson Haugen De Puy agreed and wasn’t even sure it was a procedure. It may have been something that was done so that the public didn’t mistake them for being a 6 member Board.

Mr. Dunn noted that there has to be a procedure. He would find it hard to believe that there isn’t one, whether the ZBA gets with the Association of Towns and gets further information from them. The problem is that there is no problem, except that if there is no procedure, you have to see what could go wrong. Chairperson Haugen De Puy could do it one way and the next Chair that steps in and says ‘okay, I’m only going to have the Alternate come on Board if we don’t have a quorum’. So, what is the procedure? Does the Alternate step in when we have 4 Members? Do they step in when we have 3? Here’s a possible problem. The ZBA has had contentious disagreements and there are no problems with that until it gets exploited. It can get exploited if there is no procedure and then the Chairperson can bring the Alternate on because they think the Alternate will agree with them, or the Chair won’t bring the Alternate on because they know the Alternate won’t agree with them. There has to a procedure. He wasn’t saying anyone here would do that. That’s not the point. The point is it has to be a procedure. He doesn’t care what it is, as long as there is one and it is consistent. So, if we are down 1, then the alternate steps in, or you could take it down to not having a quorum and then the Alternate steps in. It would probably be prudent that if it were something critical, once the Alternate is in on the meeting, then they should probably stay in for the sake of consistency.

Mr. Dawson noted that as far as he has been informed this is about him sitting at the table.

The Chairwoman noted that some of it has to do with sitting at the table and some of it is engaging.

Mr. Dawson stated that the Chairwoman said he could sit at the table and he could do that and he could be quiet and that would be fine.

Mr. Mallery and Mr. Dunn didn’t think that anyone cared about where anyone sits.

Mr. Dawson noted that they have a Secretary, so they already look like a 6 member Board. So, if they are saying, ‘looks’, why did they care about that? He was here for the experience and if everyone here was going to tell him that he had to go sit over there, he would tell them to go screw themselves because he was here to learn. The median age on this Board was what? 50 years old?

Mr. Mallery said that he wished it was.

Mr. Dawson stated that it was probably older than that. He was 29, unless they can show him, he was going to sit at the table, unless Chairwoman De Puy had the authority to tell him he couldn’t sit there.

Chairwoman Haugen De Puy stated that she did have that authority.

Mr. Dawson told her to tell him then.

The Chairwoman noted that she didn’t want to do that. The whole point of this discussion was not about her authority to do so, she doesn’t do that. She wanted to know if there is a procedure that tells the ZBA how to handle this so it doesn’t compromise anything and doesn’t come back at the Board. One week Mr. Mallery couldn’t make it, and then Mr. Dawson came in his place and then someone stated, ‘well, how do I know who is voting on my decision?’.

Mr. Dunn doesn’t think that anyone cares where the Alternate sits.

Chairwoman Haugen De Puy noted that in the past, Alternates were always seated in the public.

Mr. Dawson questioned how this came about? Was this how it came up that he voted?

The Chairwoman noted that this wasn’t directed at Mr. Dawson personally and he feels like it is, and she apologized.

Mr. Fornal noted that when the legislation was passed, it was about quorum. The main purpose of having Alternates was about quorum. He has read it that when an Alternate comes on, they are supposed to stay on for the whole rest of that application.

The Board agreed that this made sense.

Mr. Fornal continued and noted that it has always been that the alternate does not sit at the table. Why that is, he didn’t know.

Mr. Dawson noted that for the past year he has sat at the table.

Mr. Mallery was clarifying that the intent was only when there wasn’t a quorum to use the Alternate?

Mr. Fornal noted that it was also for a recusal, but the main thrust of how Alternates came about was to be able to establish a quorum.

Mr. Mallery would have assumed that it was if someone was absent and there were 4 members, then the Alternate steps in to make the 5th member as it is stated that the ZBA shall consist of 5 members.
Mr. Dunn noted that if you are taking it that literally, then if you don’t’ have 5 members, then the ZBA can’t perform business.

Mr. Mallery noted that might happen. You can’t help it if you only have 4 people, it’s just when does the Alternate step in and fill the role? Like he said, his assumption is that if you are down 1 member, the Alternate steps in to make the 5th member.

The Secretary noted that ever since she has worked here, it has always been a contention. The Planning Board had 8 people sitting at the table and it did compromise a decision because it made it look like there was an 8 person Board, so then every Chairman who has come on for the PB, because they meet a lot more often than the ZBA, came up with their own take on how they were going to use the Alternate. Mr. Fornal had his own take—but they let everyone know at the start of their time as Chairman as to how they were going to handle using the Alternate. Mr. Fornal did it for quorum and then when Mr. Baden came on, he let it be known, to be consistent with it, he was going to use the Alternate when someone was absent—because the PB had a lot of cases where people were not staying on as Alternate, as Mr. Dawson stated, why would you want to just sit in the audience and not doing anything. The PB found out that Alternates were a dime a dozen, because if they aren’t used, they quit. That’s why Mr. Baden and the PB went with using an Alternate if someone was absent instead of not being able to meet a quorum because that is going to happen much more often than not being able to meet a quorum. This was just a little history from her point of view as Secretary for these Boards for the last 13 years.

Mr. Fornal also noted that when someone recuses themselves, they need to get away from the table, and they don’t get any of the information for the application. They are restricted. He thinks this comes from the State, but he believes it’s more like a policy than a law.

Chairwoman Haugen De Puy agreed and thought it was more policy than a law as well.

The Secretary would see what she could find in Rules and Procedures and they could start there.

Chairwoman Haugen De Puy agreed.

Mr. Dawson questioned how this came up?

The Chairwoman stated that it was from her. The Vet on Sidney Street was in front of the Board and Mr. Dawson was sitting at the table and there were comments and she shouldn’t have allowed it.

Mr. Dawson noted that was before the tape recorder started.

The Chairwoman noted that there was some during too. This was on her. She sat and thought about it and she realized that she had done something that was not correct.

Mr. Dawson questioned what the comments were?

The Chairwoman noted that she didn’t recall, but she knew it took place and she knows that she shouldn’t have let it at the time.

Mr. Dawson noted that he recalled a time when he spoke prior to the meeting, but he disagreed with the Chairwoman. He thinks when he did speak, it was before the meeting actually started and she slightly scolded him and he wasn’t sure what he had done wrong.

Chairwoman Haugen De Puy noted that by being a part of it, the applicant might think that he had a right to vote on the decision.

Mr. Dunn noted that he knows that from his point of view was that Mr. Dawson was speaking during the meeting, and he thought it was interesting. No one wants to squash anyone, that’s not the point. The point is that it does get confusing to the applicant. Mr. Dunn had not seen that before, so he wondered what the procedure was. So if that is the way it is, perfect, but he’s never seen that. He asked if Mr. Fornal had seen it.

Mr. Fornal noted that Alternates are not supposed to participate unless they are brought in.

Mr. Dunn noted that no one has anything against Mr. Dawson and it sounds like he is taking that way, and it’s not personal at all. It’s procedure. It has nothing to do with Mr. Dawson as a person, it was a legal thing. If it’s not procedurally correct and it ends up in Court and the ZBA doesn’t have everything done procedurally correct, they might as well not even have it. Mr. Dawson was trying to pin her down, but, Mr. Dawson did speak during the meeting.

Other Board Members agreed.

Mr. Fischer noted that he recalled it as well. He was acting like a Board Member.

Mr. Dunn noted that that was great, the Board commended him for that—it was just the procedure has to be set.

Mr. Fornal agreed and noted that the ZBA can’t open them up to anything like that, because even the smallest flaw, a lawyer can exploit and then boom…

Chairwoman Haugen De Puy noted that the bottom line is that it was up to her to fix it. It wasn’t up to the rest of the Board Members. She appreciated their input, but ultimately it was up to her.

Mr. Dawson noted that he knows it is serious and he can shut up.

Chairwoman Haugen De Puy noted that maybe they were wrong about that too.

Mr. Fornal knew that Alternates could not participate when there was a full Board.

Mr. Fischer noted that just tonight for example, the applicant said ‘you didn’t speak tonight’. The applicant saw the Alternate at the Board and thought he was one of the members. He could tell he wanted to speak.

Mrs. Haugen De Pay agreed that it was hard not to speak and that is probably why most other Chairs remove Alternates from the table. It’s less tempting to speak.

Mr. Dunn noted that the fact of the matter is, is that everyone welcomes Mr. Dawson and he has good ideas, he doesn’t care how old you are, if you are 90 or you are 16, you bring a valuable opinion as a member of the community to the table. That’s important. However, it is a 5 person Board. If they want to make it a 6, 8, or 10- they can do so. The more you put in, it takes longer. It’s not bad, the process just takes longer.

Chairwoman Haugen De Puy noted that the Board has to watch what they do with lawyers. Look what would happen if they found against someone and the lawyer said, well you had 7 people at the table. She would have to explain, and say, ‘yes, the Alternate did speak.’

The Secretary noted that it happened to the PB during a very contentious application. The applicant used that against the Board. It was very messy.

Mr. Fornal noted that he didn’t want Alternates. He expected Board Members to just show up and do their jobs.

Mr. Dawson noted that their job isn’t to go there, there job was to sit in and learn so they had a better understanding of what was going on so when they do sit in they know what is going on.

Mr. Fornal noted that he has been involved for over 20 years…

Mr. Dawson interrupted and noted that he knew Mr. Fornal had, and maybe that’s too long.

Mr. Fornal didn’t think so.

The Chairwoman warned Mr. Dawson to be careful

Mr. Fornal noted that he has been involved for 25 years, he hasn’t been on a Board for that long and the fact of the matter is that is what has been happening ever since Alternates have come in. They don’t sit at the table. Now, is that procedure? They were going to have to find out. That is past precedent.

Chairwoman Haugen De Puy agreed and noted it’s historically the way it’s been done.

The Secretary noted that was another reason why Mr. Baden had set up a special table off to the side for the Alternate to sit at, it made them feel like they were more involved and he got them as close as he could to the table, set them up a table so they could lay their stuff out and they always had what the Board was looking at- even the larger maps, so they were part of the process.

Mr. Dunn thought that was a good method.

Mrs. Haugen De Puy noted in the comments, as far as age goes, if Mr. Dawson was a younger man, his hearing was a heck of a lot better than hers she would bet.

Mr. Dawson noted that it actually wasn’t. He had tinnitus. He damaged his hearing in Iraq.

She was sorry to hear that, but what she was saying was that she thinks he could hear as well in the audience as he could at the table.

Mr. Dawson stated that wasn’t true. He gets disability for it.

Chairwoman Haugen De Puy noted that was more than she needed to know. Where she was going with this, was that it wasn’t directed at her per se. She then advised Mr. Dawson to never pick on anyone on this Board again for how long they have been on a Board or she would have him removed. And if he feels bad about this, she apologized, but it came up as part of procedure and now it may be taken against him personally. Do not ever age classify or time classify anyone.

Mr. Dawson noted that he understood.

WEBSITE:
Mr. Fischer noted that the date for the meeting was wrong on the website.

Chairwoman Haugen De Puy noted that she would speak with the Secretary and Rich Miller about changing it.

MOTION TO ADJOURN
Mr. Fornal motioned to adjourn the meeting seconded by Mr. Fischer. No discussion. All Members present in favor.

Since there was no further business, at 8:10PM Chairperson Haugen De Puy adjourned the meeting.

Respectfully submitted,

Rebecca Paddock Stange, Secretary