ZONING BOARD OF APPEALS
TOWN OF ROCHESTER
ACCORD, NEW YORK
MINUTES of the July 18th, 2019 Town of Rochester Zoning Board of Appeals, held at the Harold Lipton Community Center, Accord, NY.
Chairman Mallery called the meeting to order at 7:00PM.
Chairman Mallery recited the Pledge to the Flag.
Cliff Mallery, Chair
Steven Fornal, Vice Chair
Mary Lou Christiana, Attorney for the Town. William Barringer, Alternate. Brianna Tetro, Secretary.
Appeal of Zoning Determination
122 Catalpa Ln.
-Recording studio under construction alleged to violate Town Code.
Ms. Emily Svenson was present on behalf of the application for the appellant.
Mr. J. Benjamin Gailey was present as representation on behalf of the application for the homeowners Mr. And Mrs. Sean and Allison Hoots. Mrs. Hoots was also present on behalf of the application and acted as co-counsel of Mr. Gailey.
Mr. Gailey stated it was the position of himself and the homeowners that the appeal was untimely. He explained the building permit was issued in June 2018 and not only permitted the construction of the building in question but also the intended use of the structure and when the building permit was issued the Building Inspector made a determination that not only was the construction lawful but also the intended use of the building. He said the neighbors knew of the construction of the building as early as April 2018 and knew of the construction of the building no later than October 2018 and noted that there had been emails back and forth between the homeowner and the neighbors that very clearly stated not only when construction would begin but also announcing when construction had started. Mr. Gailey said it was their position that an appeal in May of 2019 was way too late under the 60 day statue. He noted there was also the issue of laches which was a legal argument that a party couldn’t sit on their rights to the determent of another party and in this case there was the known construction of the building as of October 2018 and the structure was virtually complete now and it was clear the appeal had to be dismissed based on that.
Chair Mallery said Mr. Gailey had mentioned emails that went back and forth between the neighbors and he asked to whom did they go to?
Mr. Gailey said it had gone to the members of the so-called Road Association and everyone on the road was a member of the association.
Mrs. Hoots read a list of all the members of the Road Association that the email was sent to.
Mr. Gailey added that aside from the email the neighbors knew construction was underway because there were complaints from those neighbors about the construction vehicles coming up and down the road.
Chair Mallery stated Mrs.Hoots had written a letter with attached exhibits to the Board on June 8th, 2019 that cited the case Palm Management vs Goldstein. Chair Mallery asked Mrs. Hoots to explain that case. He quoted the paragraph of Mrs. Hoots’ letter where she had stated the case applied. (see attached)
Mrs. Hoots explained Palm Management vs Goldstein applied in the appeal because they had applied for the initial permit in June 2018 and then a revised permit in October 2018 and that permit was granted. She stated at this point, they had had 2 determinations that the building was approved by the Town. She noted that when they applied for the permit the plans included the music studio and isolation booth. Mrs. Hoots stated there was then the complaint by the neighbors at the end of March 2019, where the CEO reviewed everything and determined that the uses which she and her husband had explained in an email that it was going to be used for a music studio, an art studio, and a guest house, were all residential uses and approved it again. She stated they had approvals in June 2018, October 2018 and then again in April 2019 when the CEO had looked and everything and still believed that he had approved something legal, it was a residential use and they could proceed with their building.
Mr. Gailey quoted Mr. Davis’ letter from April 3rd, 2019 (See attached).
Mrs. Hoots added that they never changed any of their plans.
Chair Mallery asked what kind of plans did she submit and to whom.
Mrs. Hoots stated they were architectural plans and they submitted them to the Building Inspector.
Chair Mallery asked if there was anything Mrs. Hoots or Mr. Gailey wanted the Board to be particularly aware of.
Mrs. Hoots stated the Palm Management case and Ms. Svenson’s definition of use which stated the use was an intended use showed that the decisions made in the zoning permits and the determination in April 2019 was basically a continuation of the same thing which was that the CEO had approved their intended use with the building permit and then approved it again so basically it was the same decision in April 2019. She stated that there is nothing in the code that states when a Home Occupation use should be applied for but had she known to do it before the structure was built she certainly would have applied for one before it was built, but since it wasn’t stated clearly in the Code and after speaking with the Building Inspector it was clear it wasn’t something they had to do before they applied for the building permit. She said if the ZBA determined it was something that had to be done right away, she was certainly happy to do that but they had just followed what they believed was the correct procedure.
Mr. Gailey stated the argument that the appellant’s made about the building permit should have never been issued until the Home Occupation permit had been granted just showed again how untimely the appeal was because if that building permit had been issued in error, then that building permit was unlawful in April 2019.
Mr. Fornal noted that throughout the process and even in the application, the homeowner had stated the studio would be for their own personal use.
Mrs. Hoots confirmed Mr. Fornal’s statement and added that even in applying for a Home Occupation, it would still be a residential personal use.
Chair Mallery asked if the structure had been used for any purposes.
Mrs. Hoots answered no and the floors were just being finalized and they were ready to apply for the Home Occupation but she had hoped to put on the sound proof door they had purchased to separate the two sides of the building so they could do a decibel test and show that hey did sound proof it enough as well as other acoustical items before they went ahead and applied for the Home Occupation.
Chair Mallery asked for Ms. Svenson to address the Board.
Ms. Svenson stated that they weren’t challenging the building permit they were challenging the use of the building. She said the zoning permit submitted was for a guest house/studio and there was never an application for a commercial recording studio or for a Home Occupation and that was never considered or approved. She stated in their original complaint in March 2019, they asked for a revocation of the building permit and for the building to be removed, but that was a moot point at the moment because the building was built. Ms. Svenson said what they were asking for now was for the Building Inspector and the ZBA to determine the use was not legal. She said she was under the impression that the homeowner was going to apply for a Home Occupation and that was not a legal use because it had to be under 500 sq ft and their building was over 900 sq ft.
Chair Mallery stated the homeowner would apply for a variance.
Ms. Svenson said that would mean it was an illegal use.
Chair Mallery said they hadn’t used the building and if they did intend to use it in a way that violated the zoning law wouldn’t they then have to apply for a variance? He stated if they did use it in the interim then it would be a violation.
Ms. Svenson said they were in violation at the moment because they designed and built it for the purpose of using it commercially.
Chair Mallery stated that Ms. Svenson was basically asking for the Board to find an anticipatory breach.
Ms. Svenson stated they wanted the Board to find the recording studio to not be a legal use and no Certificate of Occupancy can be issued.
Chair Mallery asked if the Certificate of Occupancy had been issued.
Ms. Svenson said not to her knowledge.
Chair Mallery asked if Ms. Svenson had inspected the Code Enforcement Officer’s file?
Ms. Svenson said they had FOILed for the inspection which resulted in their original complaint.
Chair Mallery asked if there was anything Ms. Svenson wanted the Board to be particularly aware of or pay particular detail to.
Ms. Svenson stated they went through a lot of details in the original presentation but she wanted to mention in regards to who had knowledge of the building and who didn’t, she stated some of her clients stated they had received notifications while others did not because they did not live on Catalpa Lane. She said when the residents who were doing their best to investigate went into the Building Inspector’s office they were given incomplete information, but none of that was material to the appeal because they weren’t challenging the permit they were challenging the use.
Ms. Enouen asked if they had submitted the plans for the building to the Code Enforcement Office/Building Inspector with the notations of the studio and isolation booth, etc, then wouldn’t the Building Inspector had seen the intended use and made a different determination?
Ms. Svenson stated she didn’t know what kind of information the Building Inspector had been told.
The Board took a 5 minute recess at 7:20, as one of Ms. Svenson’s clients wished to confer with her.
At 7:25pm the meeting was back in session.
Ms. Svenson stated her client had reminded her that there was confusion among the neighbors on the building because initially they had been given the impression that the building would be behind the main house and there was other construction going on so there were a number of things that led to the neighbors not being aware at an early date of what exactly the plan was for the building. She reiterated that wasn’t really material to the appeal because they weren’t challenging the permit, they were challenging the use. She stated as far was what the Building inspector knew when he issued the permit, the Town has a 2-step process being the zoning permit and the building permit. Ms. Svenson said the zoning permit stated guest house/studio and the building permit did not permit a use only the zoning permit did that. She stated perhaps the Building Inspector was told this was only going to be a recording studio for personal use but she didn’t know exactly what he was told but the homeowner had clearly stated in letters and documentation that the building would be used for commercial purposes which was not a legal use.
Chair Mallery asked if Ms. Svenson cared to comment on the argument of laches.
Ms. Svenson stated they weren’t questioning the building permit the main concern was the use and since the homeowner had made clear they were going to seek a home occupation for a commercial use, her clients wanted the Board to declare that was not a legal use and Certificate of Occupancy couldn’t be issued for that.
Chair Mallery asked if Mrs. Hoots and Mr. Gailey had any response.
Mrs. Hoots stated she felt there was a misunderstanding by the appellant as to what that secondary zoning application was for and if it was a use by right as a residential use in getting the building permit no additional applications for a permit are required. She stated if one needed to use a building in a way that required an additional application or permits such as certain types of Home Occupations then that would be required. She said at this point what had been approved was the uses that had been identified both on plans and the permit application and on the letter they wrote where they had stated what the uses of the building would be for once it was finished and any future uses they may want to do once they applied for them and if they were approved. Mrs. Hoots stated at this point a Home Occupation was not needed if she was understanding the Code correctly and that if one of the criteria for a Home Occupation was noise levels, she wanted to wait to apply for one until the soundproofing was complete in the building. She stated they had identified the residential uses that did not require a permit that they planned to use the building for until, if and when, they are approved for the other future uses that they would want to use the structure for, such as Home Occupation. She noted she currently worked out of her house on the same land and she had to submit a request to do so, and her buying the house and living in it was a residential use by right and she didn’t need to apply for that but if she wanted to work out of that building the she would have to apply for it, same as the new building.
Chair Mallery asked Ms. Svenson for her response to the homeowner.
Ms. Svenson stated that she believed there was a misunderstanding of the Code that someone did not need to determine what the use is before applying for a building permit as the Code said in 140-59:
“The Town Board shall provide for the services of a Code Enforcement Officer and/or Building Inspector to simultaneously enforce the provisions of this Law and other applicable Town of Rochester codes and the Uniform Fire Prevention and Building Code Enforcement Law. Such Building Inspector shall examine all applications for permits, issue permits and/or certificates of occupancy for construction and uses which are in accordance with the requirements of this law, record and file all applications for permits with accompanying plans and documents and make such reports as may be required including, at a minimum, a written monthly activity report to the Town Board. Permits requiring Site Plan Review and Special Use approval, however, shall only be issued with approval of the Town of Rochester Planning Board. Likewise, permits requiring variances of this law shall only be issued with approval of the Town of Rochester Zoning Board of Appeals.”
She stated that was just like every other town where before the commence of a project, there is a determination if any other review is necessary and it was only logical that is how it is determined how a site is laid out before a building permit was issued. Ms. Svenson said they now knew what the property owners were intending to do with the property which was explained in detail and they said it would be used for the homeowner’s business which was to record music with other people, and that was a commercial use. She stated it may be allowed in Home Occupations in other parts of the Town but it wasn’t allowed in this case because it was over 900 sq ft. So the use was not allowed.
Attorney Christiana stated Mrs. Hoots had said it was an intended use should they get the proper approvals. She explained if they didn’t get approved then they would simply have an at home recording studio and it didn’t mean it would ever be used because they recognized they needed to get the proper approvals. She stated no use had been made yet.
Chair Mallery asked how this differed from someone who builds a structure for a specific use and then changed their minds.
Ms. Svenson stated before a building permit could be issued the Code said that if other approvals were needed from the Planning Board or the ZBA, then those permits needed to be approved before a building permit could be issued. She said there were 2 arguments being presented at the meeting 1) They were too late with the appeal and 2) That they were too early. Ms. Svenson said they were not too late but if the Board would decide they were too early with their complaint, what they were asking for was a declaration was the use was not allowed in that zoning district.
Chair Mallery asked didn’t the Code say that? He stated the Code said what it said, so what she was asking for them to state is that the Code said exactly what it says. He stated there was no point in that statement because it was already stated in the Code.
Ms. Svenson said there was a lot more information at the moment than there was before and what had been said was the building was only being used for personal residential use but now there was a lot more information with the intention that it was going to be used commercially.
Chair Mallery stated it could be that the appellant’s were too late and too early. He stated if they were too late they could have a second chance compared to if they were too early.
Ms. Svenson said it seemed to her that this was a slow moving train because a known use was coming into the Town and no one was stopping it. She said they wanted the ZBA to stop it.
Chair Mallery stated he appreciated what she was saying but what they had was a building that was already built but not used so what they had at the moment was a train stopped at the station so to speak, and the homeowner had indicated it wouldn’t be going anywhere at least in the direction that Ms. Svenson was indicating it was going without the proper approvals.
Ms. Svenson asked if Chair Mallery was saying a recording use wasn’t allowed in the zoning district?
Chair Mallery said the zoning law said what the zoning law said and there was no request for a variance before the Board so they weren’t going to grant anything that hadn’t been requested.
Ms. Svenson said what she was asking the Board to do was look at all the evidence presented, all the documentation before them, that she and her clients had provided and what the homeowners had provided and determine that the use that was being described and what the building was being built for was not a legal use.
Chair Mallery stated he thought the homeowners had indicated clearly that there was no intention of using it in a way that violated the zoning code. He said they hadn’t used the building and they didn’t intend to use it in any other way other than personal until if and when they received the appropriate approvals. He stated they weren’t there to change the zoning laws, they weren’t re-writing anything.
Ms. Svenson stated what Chair Mallery was stating was that a building that was not purely residential, for their own personal use, that they would need to apply for a permit.
Chair Mallery said he wasn’t saying that, what he was saying was if they were using the building in a way that the zoning laws didn’t permit then they would need to seek further approvals, either with the Planning Board or the ZBA. He stated at the moment it wasn’t being used for any purpose as far as anyone knew, there’s no evidence that it was being used for any purpose what so ever. Chair Mallery explained if it was used in a way that the zoning laws state it couldn’t be used, then there would be an issue but as far as he could tell it hadn’t been used that way.
Ms.Svenson stated she was concerned with the argument the homeowner’s counsel made where he had stated the intended use had already been approved as it was not approved.
Attorney Christiana stated she believed he had said that the intended use as a personal recording studio and guest rooms had been approved.
Ms. Svenson stated the homeowner’s had stated what they were planning to do which was now on paper.
Ms. Enouen said they were applying for a Home Occupation which would require Site Plan Approval.
Ms. Svenson stated it would require a variance because it wasn’t allowed.
Attorney Christiana said that was correct but they would have to go through that process.
Ms. Svenson said it was bad practice for a Town to lead some one to build something that was going to require a use variance.
Attorney Christiana said they could have applied for all those things first, but it was a risk they were willing to take that they were going to build a structure that may very well only be allowed to be used for personal use.
Mr. Fornal stated it seemed the context Mrs. Hoots’ had explained was if/then. He said if they intended to use it in a commercial manner then they would have to apply.
Ms. Svenson said they now had a lot more information than they did when they started the process and she felt it was very useful and she didn’t know where the Board wanted to go with this appeal.
Chair Mallery said they needed to decide on the two issues before them and the two legal issues were time barred and laches and if they decided in the appellant’s favor then there would be a public hearing but if the Board decided in the homeowner’s favor then they would be done until somebody would take the next step, whatever that would be.
Ms. Svenson said as far as those issues she wanted to reiterate that there were no time barred or laches because they weren’t arguing the permit they were arguing the use. She stated if the ZBA determined that they were too early with the complaint about the use that would be a different issue but she did oppose the idea that they were time barred.
There was discussion among the Board weather or not to hear from the property owners of Wayward Ranch in regards to the Ullman Appeal as no one from the appellant’s side was present, but counsel from the property owner’s side was in attendance. It was decided they would hear from the property owner’s counsel, Patrick Logan, in order for Mr. Logan to present a letter he had written.
Appeal of Zoning Determination
30 Loosestrife Lane, Wayward Ranch
-Code Enforcement Officer’s interpretation/determination of Animal Sanctuary as stated in a letter to the Planning Board Chairperson dated June 3rd, 2019.
Ms. Enouen recused herself from the application at 7:45pm. Alternate Mr. Bill Barringer took her place on the Board.
Chair Mallery stated for the record Mr. Ullman was not present. He asked if anyone was in attendance of the land owner.
Ms. Eleni Calomiris, owner of Wayward Ranch and Mr. Patrick Logan, attorney were present on behalf of the application for the landowner.
Mr. Logan presented a letter for the Board. He stated the appeal was essentially saying when the Planning Board Chair, in May 2019, had sent an inter-office memo to the CEO requesting clarification on the zoning law, and the CEO failed to respond to those questions, that was a determination that they could now appeal. He explained the questions presented in the appeal were more or less arguments the animal sanctuary and kennel uses were not permitted on the site and as an initial matter they wanted to note that this appeal was untimely. He stated based on the record there was only one zoning determination or interpretation and it took place in February 2019 when the zoning classification and permit was issued by the CEO. Mr. Logan said that since then the CEO had not made any decisions on the zoning law and he had not made any interpretation of the zoning law and the courts had been pretty clear on these matters and unless there was an actual decision, from the administrated official, there was nothing for the ZBA to hear. He stated in this case questions had been posed and responded to but there was nothing that said the CEO was incorrect. Mr. Logan explained furthermore, even if the later letter, the response to the Planning Board Chair’s May 2019 letter , from the CEO was determined to be an interpretation, the CEO didn’t actually answer the Planning Board Chair’s questions and had referred her to her own counsel and said that he did not have enough facts to make any determination. He stated the appellant, Mr. Ullman, was a neighbor of the project and was opposing the project, then appealed the CEO’s non-reply. He stated he and the landowner were saying there had been only one actual determination and interpretation of the zoning law in this case and that was in February 2019 and there was a 60 day deadline for appealing determinations that had long since passed and there had been no determination since. Mr. Logan stated reaffirmations of a prior interpretation did not restart the clock and even if the CEO’s May 2019 letter which did not interpret the law was an interpretation that this use was permitted , that itself would not grant a 60 day window to appeal. He stated the questions posed in the appeal were not appropriate and the ZBA was limited in its jurisdiction to the issues that were before the CEO when he made a determination. He said the questions presented to the CEO from the Planning Board chair were very specific and the appeal went far beyond those questions to the extent that it asks things of the ZBA that were not asked to the CEO and the ZBA did not have the authority to answer those questions as there was no request from the CEO. He concluded that the appeal was untimely and out of the jurisdiction of the ZBA but if the Board did go forward with the appeal, they would be happy to comment on the merits of the appellant’s argument.
The Board discussed the application was ongoing in front of the Planning Board and that they had several questions for the appellant that they wanted to have answered.
Mr. Fornal made the motion to table the Ullman appeal application until the August 15th, 2019 Meeting. Mr. Psaras seconded the motion.
All in Favor. Motion Carried.
5 ayes, 0 nays, 0 absent, 0 abstentions, 1 recused.
The Board asked that the secretary send a letter to Mr. Ullman requesting his attendance at the August 15th, 2019 meeting.
Ms. Enouen returned to the meeting at 7:50pm.
Mr. Fornal made a motion regarding Catalpa Lane:
Facts Established and DECISION:
Whereas said Building Permit (#18/177) was issued by the Town of Rochester Building Inspector/Code Enforcement Officer Albert “Jerry” Davis on 25 June 2018 for construction of structure for use as a guest house/music studio
Whereas said Building Permit was amended on 18 October 2018 to include a basement area
Whereas construction commenced on or about 25 October 2018 (See: Alison Hoots letter dated 8 July 2019)
Whereas various social media and email exchanges were introduced as evidence (from on or about 28 March to present) along with a petition signed by 22 residents (Catalpa Lane Association members and various residents in vicinity of project) as well as a general summation of complaints re the Hoots’ Guest House/Music Studio being allowed, dated 29 March 2019 was sent to Town Supervisor Mike Baden and Code Enforcement Officer Albert “Jerry” Davis.
Whereas on 1 April 2019, a letter dated 28 March 2019 from attorney Emily B. Svenson was received by the Town of Rochester Zoning Board of Appeals stipulating an appeal of the Building Permit (#18/177) issued to the Hoots for a Guest House/Music Studio was imminent and a request was made to “investigate and revoke the building permit.”
Whereas a letter from CEO dated 3 April 2019 stated “the matter has been investigated and no current violations have been found” as the Hoots’ “have applied and been granted the above mentioned Building Permit for their own personal legal use.” This letter reaffirmed the issuance of the June 2018 building permit and October 2018 amended building permit vis-à-vis whether the building permit included use of structure permitted.
Whereas a Notice of Appeal replete with various document Exhibits from Attorney Emily B. Svenson dated 16 May 2019 was received by the Town of Rochester Code Enforcement Officer and Zoning Board of Appeals Chairman outlining an appeal relating to Hoots’ Building Permit (#18/177)
Whereas an Appeal Application (#2019-04) was filed on 28 May 2019 requesting a review of the Building Inspector’s determination [RE: Letter from CEO dated 3 April 2019] alleging that “Recording studio under construction violates town code as detailed in 16 May 2019 letter.”
Whereas a meeting between Emily B. Svenson, ESQ and the Zoning Board of Appeals, with Town Attorney Mary Lou Christiana present, was held on 20 June 2019 to discuss the appeal application
Whereas Hoots’ attorney J. Benjamin Gailey submitted a letter dated 20 June 2019 in which it was argued that the appeal was untimely. Included with this submission was an email dated 30 April 2018 [Exhibit C] from Allison Hoots to Jesse Marcus and copied to the Catalpa Lane Association and 17 individuals in the vicinity or with interest in the project discussing the music studio issue in some depth.
Whereas on 18 July 2019 the Town of Rochester ZBA heard presentations by Emily B. Svenson, attorney for Rovika Rajkishun and others as well as from J. Benjamin Gailey, attorney for Allison and Sean Hoots
Whereas the email discussion of 30 April 2018 [Exhibit C contained in J. Benjamin Gailey 20 June 2019 letter] was followed by nearly a full year without formal appeal on the part of the Catalpa Lane Association nor any individual with standing, the Laches Doctrine applies wherein the Hoots proceeded with their project by obtaining a legal building permit on 25 June 2018 which was amended on 18 October 2018 to include a basement and then began legal construction of the guest house/music studio on or about 25 October 2018 continuing until present day thereby expending a considerable amount of money, time and effort on said project prior to formal appeal being brought.
Therefore, on this 18th day of July, 2019, having reviewed the voluminous documentation provided and having heard presentations from attorneys representing both sides, the Town of Rochester Zoning Board of Appeals determines the appeal requested is Time Barred as certainly many if not all of the people filing and/or with interest in filing the appeal should have been aware of the music studio being built by no later than 30 April 2018 as the pertinent facts re Music Studio were stipulated in an email written by the “Hootes” and copied to seventeen individuals with interest in proposed project and/or as members of the Catalpa Lane Association. Any appeal should have been filed according to New York State Town Law §267-a(5b) and Town of Rochester Zoning Code §140-67 (F) which require an appeal shall be commenced within sixty days of any decision, interpretation or determination by a CEO/Building Inspector, which– allowing for the 30 April 2018 email exchange notification as determining date of full knowledge of proposed project –would have necessitated an appeal no later than 24 August 2018 (60 days from the issuance of building permit dated 25 June 2018).
Motion made by: Mr. Fornal
Motion seconded by: Ms. Enouen
5 ayes, 0 nays, 0 absent, 0 abstentions
Adopted: July 18th, 2019
Ms. Enouen wanted to address what Ms. Svenson had said that they were not appealing the building permit but the use of the building.
Mr. Fornal explained the building permit was for a music studio/guest house that has not been used. He stated if they do use it as for personal use, that would be okay, but if they did want to use the building for commercial use, they would need to first get a variance which was not easy as well as other approvals that would be needed. He said if they charged or bartered in exchange for use of the building, that would be a commercial use.
There was no further discussion in regards to Catalpa Lane.
ACCEPTING MEETING MINUTES:
Mr. Fornal made the motion to accept the minutes from the June 20th, 2019 meeting. Mr. Fischer seconded the motion. Chair Mallery and Mr. Psaras abstained.
3 ayes, 0 nays, 0 absent, 2 abstentions.
Mr. Fornal made the motion to adjourn the meeting at 8:15 pm. Ms. Enouen seconded the motion.
All in Favor. Motion Carried.
5 ayes, 0 nays, 0 absent, 0 abstentions.
Brianna Tetro, Secretary
Accepted August 15th, 2019