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

MINUTES of January 19th, 2017 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- DePuy, Chair Troy Dunn
Steven Fornal
Cliff Mallery, Vice Chair
Charles Fischer

Also present:
Rebecca Collins, Alternate. Shaye Davis, Secretary. Marylou Christiana, Attorney.
Chairperson Haugen – De Puy noted that Troy Dunn was not present due to his term ending in 2016 and the Town Board had not appointed someone to take his seat and that Rebecca Collins, the alternate was seated for the January meeting.

CONTINUED PUBLIC HEARING
2017-01AV Public Hearing
Holly Noelke, Area Variance required for proposed screen porch to be located 32.5’ from a side yard Setback, 76 Project 32 Road, Tax Map #76.4-3-15.116, R-2 District

Mr. Sutherland, architect, was present on behalf of the application.

Chairperson Haugen DePuy stated that the applicant needed a 7.5 foot variance.

Mr. Sutherland explained that the owner bought the property recently and was planning on doing some alterations. One alteration is a screened in porch, and a front porch. He explained that right now there is nothing over the front door so a front porch over the front door is a good thing. When Mr. Sutherland and the owner looked at the building and analyzed where we could put those additions it was clear that most likely a variance would be required. Mr. Sutherland did a site plan and designed with some conventionally sized additions. Mr. Sutherland said they have a wraparound porch idea that connects to the screened in porch area. The one corner of the wraparound porch that is closest to property side line. Mr. Sutherland put together a letter pointing out the five points for a variance. Mr. Sutherland noted that there is a shared driveway that is against the property line and if anyone was to build on the adjacent lot they would have to build on the other side of the shared driveway. If anyone was to build it would be an excess of 100 feet from the porch they proposed. Mr. Sutherland also noted that the porch could be configured in a different way but if you configured it a different way that would meet setbacks it would look odd and not fit in with the neighborhood. Mr. Sutherland continued to state that he doesn’t believe there would be an adverse effect on the neighborhood. He continued to note that even with a car driving on the shared driveway that there is a decent amount of space between them. Lastly, Mr. Sutherland noted that the configuration of the lot is odd and if you met all the zoning code there would only be a small triangle in the middle of the property and doesn’t leave much space to build a porch and makes it very limited.

Chairperson noted that the Board received a letter from a neighbor and read it to the rest of the Board.

Chairperson Haugen-DePuy open the application to the public.

No comments.

Chairperson Haugen-Depuy asked the Board if they were ready to close the public hearing.

Mr. Fornal motioned to close the public hearing. Mr. Fischer seconded.
Motion carried.
5 ayes, 0 nays, 0 abstain, 1 absent
Haugen-DePuy- Yes Mallery: Yes
Dunn- Absent Fornal: Yes
Fischer- Yes Collins: Yes

Whereas applicant Kurt Sutherland (architect for owner) filled out an Application of Zoning Permit and Classification received by the Code Enforcement Office on 15 November 2016 which subsequently determined an area variance would be required

Whereas applicant Kurt Sutherland submitted an Application to Zoning Board of Appeals #2017-01AV on 5 January 2017 requesting an area variance

Whereas applicant Kurt Sutherland submitted a survey map showing proposed construction in relation to property and bounding properties

Whereas a proposed deck and corner of the porch would encroach upon the South side yard setback by 7.5′ leaving 32.5′ to the property line

Whereas a 7.5′ variance amounts to a 18.75 percent variance which is only minimally substantial

Whereas the hardship is self-created in that the owner bought the property as is with Southwestern corner of the house placed at the 40′ mark from southerly property line

Whereas the shape of the property, rising slope to the South, Stony Kill Creek to the North and existing septic field and well create a condition that the proposed porch is only practicable via attachment to the house on the Western side

Whereas a letter dated 5 January 2017 from KWS Architecture details reasons for variance request for side yard setback and makes its case re impact to neighborhood

Whereas a letter from bounding owner closest to proposed porch, Craig Paulson, 78 Project 32 Road, states that the proposed construction will not have negative impact on his property and that “On the contrary, the visual impact will be an improvement”

Whereas a side yard setback variance will be a definite benefit to the owner of the property and will not be detrimental to the health, safety or welfare of the neighborhood

Whereas no one spoke for or against the proposal at the Public Hearing held 19 January 2017

Based upon facts and information obtained and reasons stated above, the Town of Rochester Zoning Board of Appeals, on this 19th day of January 2017 hereby approves a 7.5′ Area Variance for side yard setback

Mr. Fornal motioned to approve the variance for the variance as stated below. Mr. Fischer seconded the motion.
Motion carried.
5 ayes, 0 nays, 0 abstain, 1 absent
All in favor

2016-07 SUP Public Hearing
Amendment to PB decision 1997-06 SUP
Sandy Krupp c/o James O’Shea & Bjorn Quenemoen
8.1’ Area Variance for the rear yard setback (25’ required; 16.9’ provided) for the cabinet shop structure to correct a violation of the Schedule of District Regulations.
Proposes amendment to PB decision 1997-06 SUP granting approval to convert a dairy barn into cabinet woodworking shop. 10 Queens Highway, S/B/L 76.2-2-6.211, B and AP Overlay zoning district,
Contiguous to Ulster County Ag District #3.

Mr. O’Shea is present on behalf of the application.

Chairperson Haugen-DePuy explains why the application is in front of the Zoning Board of Appeals. She also stated that the application would have to be sent to the County Planning Board.

Mr. Fornal motioned to send the application to the County Planning Board. Mr. Fischer seconded the motion.

Mr. O’Shea explained that the application related to a previous Planning Board decision and that a quit-claim deed jogged the property line and created the non-conforming setback. He noted that they are also in front of the Planning Board at this time and that the Planning Board sent him to the Zoning Board of Appeals to get a variance for the rear yard setback.

Chairperson Haugen-DePuy asked the Board if they had any questions.

No comment.

Chairperson Haugen-DePuy opened the meeting for public hearing.

Michael Baden stood up and explained that the property does not front state route 209 and that it fronts Queens Highway which is a town road but it is within 500 feet and also within 500 feet of an agricultural district. He also explained that the Planning Board also sent the application to the County Planning Board and they replied that it is not required due to meeting the exception agreement.

Mr. Kruger stated that he owns the property right in front of this lot. He asked how many violations will occur to his property if this map is approved.

Mary Lou stated that granting a variance to the Krupp property, if the board does, does not affect the neighbor’s property and does not make any new violations but if there were violations for the property already then that’s something the code enforcement office can do.

Mr. Kruger stated that the Planning Board and Zoning Board of Appeals are creating the violations on his property by approving the variance and amending the existing approval.

Mary Lou noted that they boards are not looking at Mr. Kruger’s property at all and that they have no power over the violations.

Mr. Krueger noted that by granting the variance the boards are creating two violations on his property.

Mary Lou stated that no, that is not the case and that the property is already is subdivided and that the map in front of the board is what is filed with the county and what is on the tax maps and any violation that is on the property is there now and has been since the property was subdivided. Granting the variance for the Krupp property would not do anything to the status of Mr. Kruger’s property.

Mr. Krueger stated that he’s not against this variance but that it impacts the value of his property that the Town has decided and that they are opposing the variance and the amendment to the Krupp property.

Mr. Mallory asked if the board did not grant the variance for the Krupp property if it would affect the sale ability of Mr. Kruger’s property.

Mr. Krueger noted that the variance would affect his property and create two violations on his property.

Mary Lou noted that the violations were created by the subdivision and the quit-claim deed that was filed years ago.

Mr. Krueger stated that it was all filed by the previous property owner who the town is trying to hold accountable all this time and now for some strange reason, maybe because of Mr. Krueger’s interest, everything is flipped around and now the town is trying to make into Mr. Krueger’s problem. Mr. Krueger stated that the Town Attorney is the sole person that is making this problem for them. He stated that Marylou has spoken at every meeting and has been incorrect at every meeting and that Marylou should remove herself for the application.

Marylou stated that she thought that Mr. Krueger did not understand what they were trying to explain and she apologized if he did not understand and suggested that Mr. Krueger contacted an attorney who can talk to her about it.

Mr. Fornal asked if they grant the variance or if they did not grant the variance does it make any difference to Mr. Krueger’s situation.

Marylou stated that no, the parcels had been divided and filed with the county at a time where you didn’t have to go in front of the Planning Board to subdivide two parcels.

Mr. Krueger stated that you did have to go in front of the Planning Board in 2003 and that Marylou is wrong again and that he had maps to prove it.
Mr. Mallory asked if there is a violation on Mr. Krueger’s property right now.

Marylou stated that they do not know and that would be up to code enforcement. But in Marylou’s opinion she says yes, there are violations on both properties because where the line there is two buildings that are close to the property line. But the variance won’t change anything on Mr. Krueger’s property.

Mr. Krueger stated that the variance would affect his historic property and that the board has to think about these things and that they are making some serious decisions and he does not think they gave it very much thought.

Chairperson Haugen-DePuy stated that she knows how old that house is and to say that the board was not interested in historical value, that Mr. Krueger is dead wrong. She also stated that the application was for the Krupp property and not the neighbor’s property.

Mr. Fornal asked whether or not the Boards actions would make any difference other than it doesn’t create a violation or may change the dimensions of the violation.

Mary Lou stated that no, the properties have already been divided years ago.

Mr. Krueger stated that Marylou is saying it doesn’t create a violation when it does. That she said the last time that Mr. Krueger is going to have two variances that he is responsible for. Mr. Krueger stated that he doesn’t have any variances or issues with his property at the moment. He stated that he had never received anything from the town stating that he had any violations. He stated that by the board’s actions of fixing one violation on the Krupp property that the board is going to create two violations on Mr. Krueger’s property.

Mr. Mallory stated that if there were violations created it happened when the property was divided. He said that any violations on the Krupp’s property or the Krueger’s property happened at the time the property was divided.

Michael Baden stated that the violations were not created when the quit-claim deed was achieved. When the property was originally subdivided the Krupp’s owned 1 lot. They subdivided it into 2 lots. They needed a variance at the time for the lot that is in front, which was the Krueger’s lot. They went to the Zoning Board of Appeals for that variance. Where the confusion comes up with the 3 lines versus 5 lines is that planning board was opposed to the way it was being subdivided. It was referred to the Planning Board by the Zoning Board of Appeals, the planning board had not had any regulatory power, and they had only advisory power. The Planning Board advised the Zoning Board of Appeals that they were against the way the property was to be divided. What was then done it was then made to a 3 line version. Everything was then legal and they granted the variance. What happened next was the quit-claim deed was put into place and the lines were now changed and the barn in question would move from the Krupp property to what is now the Krueger property.

Mr. Krueger asked who filed the map.

Mr. Baden stated that it didn’t matter who filed the map, the map was filed with the county and accepted by the county and that is all the boards can go by.

Mr. Krueger asked why the Town was holding Mr. Krupp accountable all of the time to correct the violation.

Mr. Baden noted that when the quit-claim deed was done it created the violation. The violation was never noticed, or picked up until a few years ago when an application was presented to the Planning Board by Mr. Krupp for the property. Mr. Baden stated that he, himself actually picked up the difference between what Mr. Krupp brought to the Planning Board and what the county had. Mr. Baden then said he told the code enforcement officer about it and the code Enforcement Officer informed the Krupp’s of the difference and they abandoned the application at the time. Mr. Baden stated that he does not believe that the Krupp’s were ever cited for a violation at that time but they never resolved that problem. Since then Mr. Krupp has passed away and his daughter was holder of the property and she is intending to sell it but in order for her to sell it, her title company, Mr. Baden believes, told her she has to resolve the problem before the property can be sold. So what the Krupp’s were trying to do is amend the approval to match the reality of the boundary lines so they are amending the site plan that was approved. In order to the Planning Board to review that site plan, the Planning Board determined that there is a rear yard setback that needs a variance and in which is why the Planning Board referred the application to the Zoning Board of Appeals.

Chairperson Haugen-DePuy asked if there were any more questions.

No comment.

Mr. Mallery motioned to keep the public hearing open upon receipt of the response from the County Planning Board. Mr. Fornal seconded.
Motion carried.
5 ayes, 0 nays, 0 abstain, 1 absent
All in favor

Pre-Application
Joyce Burnstein c/o Valeria Gherghiu
863 Samsonville Road, Tax Map #60.3-2-36.100 R-2 district
Use Variance – Mixed use not permitted in R-2 zoning district
Area Variance – 8 proposed uses exceeding the density of district
Proposing a Restorative Justice Community Center and Retreat Center, Law office and Yoga Studio.
12X24 Studio, 4-12X12 tent platforms, 24X24 platform, 4×4 composting toilet, gravity fed rain shower.

Valeria Gherghiu was present on behalf of the application.

Ms. Gherghiu had a letter written for the board members. Ms. Gherghiu explained that she looked at the code and she believed that what she wants to do falls more under a special use permit as a non-profit club because what Ms. Gherghiu would like to do is creates a community center, non-profit retreat center, which incorporates both restorative justice and yoga for helping the community. She explained that she had lived in the area since 2008 and that she is an attorney and practices law in Kingston and running her own office, but unfortunately due to surgery she had to work more out of the city and is now trying to move everything up here and make a working/living situation for herself. She explained all of her trainings and he background to what she wants to do. She explained that restorative justice is an alternative form of justice where community members can come together and those who are harmed and those who harmed and the communities of care of those people sit in a circle and discuss how to understand how to address the obligations of the person who harmed. Ms. Gherghiu said that one way she envisioned doing all of this is by opening up this retreat center for the members of the restorative justice commu8nity in the city to come up and get trainings on the weekends and alternation between the heavy intellectual processing or emotional processing of restorative justice with yoga, and it would serve as a balance. At the same time Ms. Gherghiu would like to support the local community with restorative justice and the center would be open to groups locally. Ms. Gherghiu continued to say that her law office fits into the entire retreat/yoga center because it would offer restorative justice resolutions; she said she would seek cases that offer restorative justice solutions.

Chairperson Haugen-DePuy stated that Ms. Gherghiu was up against many uses on the same parcel.

Ms. Gherghiu noted that she understood that the multiple permitted uses would be allowed as special uses as long as the lot development standards are met.

Town Attorney Christiana stated that the Code Enforcement Officer wrote that mixed use was not permitted in an R-2 zoning district.

Ms. Gherghiu stated that the platforms that she proposed and the studio is all part of the same retreat center and that the platforms are not permanent living structures they’re just for weekend use and that she does not envision seeing more than 20 people and that number was even ambitious, more that 5 or 6 people a weekend would be staying.

Chairperson Haugen-DePuy stated that she didn’t think it would have mattered the amount of people at a time but the amount of uses that are being proposed and the Code Enforcement Officer had classified everything as different uses.

Town Attorney Christiana noted that Ms. Gherghiu might have to go back to the Code Enforcement Officer and explain to him and he may change his mind or may not. If Ms. Gherghiu said to the Code Enforcement Officer that it was all one umbrella use and these are the little pieces within it and that’s a not for profit club.

Chairperson Haugen-DePuy asked Ms. Gherghiu if she would be residing at the property as well.

Ms. Gherghiu responded stating yes, she would be residing at the property.

Town Attorney Christiana stated that it was several uses and that is why Ms. Gherghiu was not allowed and would need use variances to be able to do them along with an area variance for the density.

Chairperson Haugen-DePuy stated that in all the years she’s been on the board that only one application has received a use variance. Ms. Gherghiu would have to show that the only way for her to make money off this property is the proposed uses that she was stating to this board. Chairperson Haugen-DePuy also read the checklist for the use variance.

Ms. Gherghiu said that if she could fall under the special use permit for a non-profit restorative justice center, would that work.

Attorney Christiana stated that if Ms. Gherghiu fell into to the criteria for that then she could but it would be just for the one thing and not the mixed use with the residential. She also stated that it is the Code Enforcement Officer’s determination if whether the uses will be allowed or if it’s only allowed in mixed use. As of the meeting the Code Enforcement Officer had classified it as a mixed use and not being allowed in an R-2 district.

Ms. Gherghiu asked if a special use permitted allowed the use of a building plus a residence.

Attorney Christiana stated that it’s whatever that part of the code said. Some things would need a special use permit some need site plan approval or some you can have without getting a variance. She said to Ms. Gherghiu that if she wants to change it or discuss how you can change it to make it work on the property. The code enforcement officer stated that all the purposes are a mixed use.

Ms. Gherghiu asked how she would get a special use permit.

Attorney Christiana stated that you cannot unless you get a use variance or appealing the Code Enforcement Officer’s decision. Attorney Christiana noted that it would possibly be a good idea to set up a meeting with Ms. Gherghiu, the Planning Board Chair, Zoning Board of Appeals Chair, the Code Enforcement Officer and the Town Attorney and discuss all the options and if and how it could work.

Other Matters:

Minutes:
Mr. Fornal motioned to accept the minutes from October 20th, 2017 Ms. Collins second the motion.
5 ayes, 0 nays, 0 abstain, 1 absent
Haugen-DePuy- Yes Mallery: Yes
Dunn- Absent Fornal: Yes
Fischer- Yes Collins: Yes

Mr. Fischer motioned to accept the minutes from November 17th, 2017. Ms. Collins seconded the motion.
5 ayes, 0 nays, 0 abstain, 1 absent
Haugen-DePuy- Yes Mallery: Yes
Dunn- Absent Fornal: Yes
Fischer- Yes Collins: Yes

Chairperson Haugen-DePuy table the December 2016 minutes.

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 8:20PM Chairperson Haugen De Puy adjourned the meeting.

Respectfully submitted,

Shaye Davis, Secretary