ZONING BOARD OF APPEALS
TOWN OF ROCHESTER
ULSTER COUNTY
ACCORD, NEW YORK
(845) 626-2434
torpbzba@hvc.rr.com
MINUTES of July 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:
Rebecca Paddock Stange, Secretary.
PUBLIC HEARING
Ronald Santosky, 14 Project 32 Road, 15’ Area Variance Required for side yard setback for a 22’ x 24’ carport, Tax Map #76.4-2-16, R-2 Zoning District.
Mr. & Mrs. Santosky were present on behalf of their application.
Chairperson Haugen DePuy explained that the applicants were requesting a 15’ Area Variance for side yard setback for a 22’ x 24’ carport at 14 Project 32 Road.
Mrs. Santosky explained that their home is 100’ from Project 32 Road and it is about 50’ from each lot line on the side yards. The septic area is to one side of the house with a 5’ drop, so they can’t put the car port there. Their well also prohibits them from building the car port in that location as there is another drop off of a couple of feet. They believe this requested location to make the most sense as this is where they have always parked their cars and it comes right off of the driveway. They also need to leave the 10’ between the house and the carport so they can access their backyard and their well if they need to. There is already a garage in the back yard and the front yard is very steep and slopes into the road. They tried to bring in a lot of fill at one point to give themselves more of a level front yard, but it just washed out into the ditch. They can come 25’ from the side line and still have the 10’ opening between the house and carport. They tried to locate a copy of the survey, but couldn’t locate it. They found a charred copy of the deed as it had been in a fire.
Chairperson Haugen De Puy noted that the Board needed some sort of documentation verifying the lot lines so they knew what the actual distance was being requested.
Mr. Santosky noted that his neighbor on the side of the proposed carport, Schoonmaker, has no problem with it.
Mrs. Santosky noted that Schoonmaker and Mr. Santosky had purchased their properties at the same time and they planted a row of trees on the property line. The properties were vacant when they had surveys done and therefore there are no descriptions of the properties in regards to the relation between the lot lines and the location of the homes.
Mr. Fornal agreed that the ZBA really needed documentation as their decision needed to be based on facts presented. Maybe if their neighbor had a survey map they could use it to determine where that line was.
Mrs. Santosky re-iterated that they planted the row of trees right on that line.
Mr. Dunn noted that this property is 1 acre, so the metes and bounds should be pretty straight forward. They could get their deed from the County and this could help them know where they are measuring from—at least if they have their metes and bounds they should be able to determine a starting point.
Mrs. Santosky noted that they would submit a copy of their deed.
Mr. Fornal noted that another option could be to have a surveyor shoot that one lot line for them and flag it. That could work too.
Mr. Mallery agreed and noted to the applicants that the ZBA really needed to understand the exact distance that they were considering.
The ZBA discussed who could verify the placement of the lot line once they produced their deed? The ZBA couldn’t do it. Perhaps the CEO could. The Chairwoman would call Mr. Davis, CEO in the morning to discuss this.
The ZBA discussed that this would now set the applicant back at least another month.
Mr. Fornal noted that he asked the Attorney for the Town if the ZBA could give a Conditional Approval with the stipulation that they produce the documentation to show definitively where the lot line in question is located and the distance of an area variance being sought after. She replied that the ZBA could not give Conditional Approvals. Unfortunately they will not be able to save the applicants another month.
The Board discussed this further as some members felt that a Conditional Approval seemed like a satisfactory avenue. They could grant the variance for the 15’ and then it would be up to the CEO to make sure that they were 15’ away from the property line and if they didn’t adhere to that, they’d have to come back.
Mr. Fornal noted that this was not how the granting of an area variance from the ZBA worked. They were varying the code, to do so they needed documentation from the applicant to be able to make a decision. It would be setting a huge precedent, and it would be shifting the ZBA’s responsibility to the CEO. Plus the Attorney for the Town said it wasn’t able to be done. If they did this and got called into court, they would lose.
Mrs. Santosky questioned if the Google Aerials weren’t enough?
Mr. Fornal explained that they weren’t accurate because the lot lines on Google are based off of tax maps which aren’t 100% accurate and the lot lines don’t line up.
The Board continued to discuss granting the variance without the documentation that the ZBA asked for.
Chairperson Haugen De Puy noted that the ZBA should follow the Attorney for the Town’s opinion.
The Board agreed with this and decided to hold a special meeting on August 4th to continue the review of this application.
Mr. Fornal motioned to continue the Public Hearing until August 4, 2016 to receive requested documentation that will definitively establish the lot line in question. If the applicants are not able to produce these documents in time the Public Hearing will continue at the regular meeting in August. Seconded by Mr. Fischer. No discussion.
Vote:
Haugen-DePuy- Yes Mallery: Yes
Dunn- Yes Fornal: Yes
Fischer- Yes
Motion carried.
5 ayes, 0 nays, 0 abstain, 0absent
PRE-APPLICATION PRESENTATION
Eunice Shamalski, owner. Robert Mann/Victoria Vienna, applicants. Area Variance for acreage to bring apartment into compliance with current code, 69.4-2-34, R-2 Zoning District
Robert Mann and Victoria Vienna were present on behalf of the application. They explained that they were interested in purchasing the Shamalski property. Mr. Mann explained that there was an apartment built over the garage in the early 2000’s by Eunice’s husband. She didn’t understand why it wasn’t in compliance as she was under the understanding that all the proper permits were obtained when it was built. When it was built, the property would have been a tenth of an acre short as it is +/-1.9 acres and when it was built the whole Town was one acre zoning. It is built great. She has been paying taxes for a multifamily residence all these years as well.
Chairperson Haugen De Puy stated that the ZBA has to build a record in which to make their determination. She then read the balancing test for the ZBA decisions:
1. whether the applicant can achieve this request by other means.
2. whether the application will cause an undesirable change in the neighborhood character or nearby properties.
3. Whether request will have adverse environmental effects.
4. whether the request is substantial.
5. whether the situation is self-created.
She also noted that normally the ZBA doesn’t get involved in tax implications (referring to Mr. Mann’s claim that the applicant had been paying taxes for a multifamily residence.).
Mr. Mann noted that it goes to prove that Mrs. Shamalski didn’t know the apartment wasn’t legal—or else she wouldn’t have been paying the taxes all these years. Now the acreage in that district has doubled and now she needs a 2.1 acre variance for density. Mrs. Shamalski has stated that if she cannot obtain the variance, her other option is to rip out the kitchen. If she does that, she won’t realize her return on the sale of the property. The apartment has its own well and septic as well.
Chairperson Haugen De Puy stated that she understands that the applicant believed it was a legal apartment, but the ZBA has the documents from the Code Enforcement File and nowhere in the documentation does it state that they were applying for an apartment over the garage, nor is there any indication that Health Dept. approval was obtained for the well and septic to the garage. That is where the Town is coming from when they say it isn’t legal. It was never applied for, and there isn’t enough acreage to have the apartment.
Mr. Fornal agreed and noted that even if the ZBA were to grant a variance, the applicant would still need to clear the apartment with the Code Enforcement Office to ensure it was built to code and the Health Dept for the well and septic also.
Ms. Vienna questioned if they went to the Health Dept and were able to locate the permits for the well and septic, would they still need to come back for the variance and would they still need 4 acres?
Mr. Fornal answered yes. The ZBA and the Town are bound by the laws that are in effect now. He agreed with the Chairperson, that in reviewing the CEO file, there is no indication that anything having to do with the apartment was applied for.
Mr. Mann noted that he approached a neighbor about a lot line adjustment and they seemed interested.
Mr. Fornal answered that was a viable alternative—the applicant should make sure that they create lines that will not encroach on existing setbacks to structures, or they would still need a variance from the ZBA for setback.
Mrs. Vienna noted that they would not be purchasing the property without the apartment. Without the apartment, it was a deal breaker for them. She noted that she and Mr. Mann would research the permits with the Health Dept and decide what direction they would take next.
(**SECRETARY’s NOTE: After this meeting it was discovered that the parcel is actually in a 3 acre zoning district, not a 2 acre district and the sought after variance would have been 4.1 acres.)
The June minutes were tabled.
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 7:55PM Chairperson Haugen De Puy adjourned the meeting.
Respectfully submitted,
Rebecca Paddock Stange, Secretary