ZONING BOARD OF APPEALS
TOWN OF ROCHESTER
ULSTER COUNTY
ACCORD, NEW YORK
(845) 626-2434
btetro@townofrochester.ny.gov
MINUTES of the June 18th, 2020 Town of Rochester Zoning Board of Appeals, held via Zoom and Livestreamed on Youtube.
Chairman Mallery called the meeting to order at 7:00PM.
Chairman Mallery recited the Pledge to the Flag.
PRESENT: ABSENT: VACANT:
Cliff Mallery, Chair Bill Barringer, Alternate Steve Fornal Bruce Psaras, Vice Chair Erin Enouen
Charlie Fischer
ALSO PRESENT: Mary Lou Christiana, Town Attorney, Brianna Tetro, Secretary. Mike Baden, Town Supervisor and meeting host.
Chair Mallery read the following statement:
I have confirmed with the Town’s Counsel that tonight’s meeting has been convened in accordance with the Governor’s March 13, 2020 Executive Order 202.1 which suspends certain provisions of the Open Meetings Law to allow a municipal Board to convene a meeting via videoconferencing. In accordance with the Executive Order, the public has been provided with the ability to view tonight’s meeting via YouTube and a transcript will be provided at a later date.
The Secretary has completed a roll call of the Board Members and there is a quorum present for this meeting. I have also confirmed with the Secretary that this meeting has been duly noticed. We have fulfilled our legal notice requirements by posting Notice on the Town Clerk bulletin board and outside door, posting legal notice in the Shawangunk Journal, and posting notice on the Town’s website.
Chair Mallery also noted that there were 3 members present and therefore a quorum.
APPLICATIONS:
CONTINUED APPLICATION
2019-07AV- Stecyk, Oleh
Area Variance
295 City Hall Rd./ SBL: 68.3-4-6/ R-2 District
Proposed Use: Deck
– Area Variance required: Applicant proposes 11’ Side Yard Setback in an R-2 district.
Mr. And Mrs. Oleh and Zenovia Stecyk were present on behalf of the application.
Chair Mallery refreshed the Board about what the application was all about.
Chair Mallery opened the public hearing.
The secretary read into the record, a letter from Mr. Steve Fornal that had arrived earlier that day:
“Re: Stecyk Area Variance Public Comment
I just want to make sure the ZBA members recall that the Stecyks essentially already have a 37.5 percent variance by virtue of their Grandfathered nonconforming placement of their home fifteen feet into the side yard setback.
What is being requested is that the existing nonconformance be extended via new structure. I think this is troubling vis-à-vis precedent setting potential. After all, this request for a deck is one of preference and convenience as to placement and certainly not one of necessity. Also, as a free-standing deck it could be located elsewhere on the property.
Plus, the request is for a 72.5 percent variance which is extremely substantial.
To maintain the integrity of the Town of Rochester Zoning Code, this application should be denied.
Steven Fornal
Accord, NY”
No one else from the public spoke and no other letters had been received in regards to the application.
Mr Psaras made the motion to close the public hearing. Mr. Fischer seconded the motion.
ROLL CALL:
Chair Mallery Yes
Mr. Psaras- Yes
Mr. Fischer- Yes
All in Favor. Motion Carried.
3 ayes, 0 nays, 0 absent, 0 abstentions, 2 vacancies
Mr. Stecyk stated that they were still going forward with their appeal for an area variance to build a free-standing deck at 149 sq ft on the side of their yard adjacent to their home, so they could have egress onto the deck from their existing door and he just wanted to be clear that this was all they were after. He said that Mr. Fornal’s statement in his letter, about the request being 72.5% was clearly not the case. Mr. Stecyk stated all the prior reasons they had given for why the variance should be granted still held and he didn’t have anymore to add.
There was a discussion about reducing the size of the deck to 144 sq ft and if that would still require a variance.
Mr. Psaras noted reducing the size of the deck 5 sq ft could make a difference and there could be value in getting in touch with Mr. Davis, the Code Enforcement Officer, and speaking to him about reducing the size of the deck and may be not needing a variance if that were the case.
Mr. Stecyk said that he had spoken to Mr. Davis and he had made it very clear that it needed to be 12 ft away from the house regardless of the deck’s size. He stated reducing it to 144 sq ft would not be an issue.
Mr. Psaras asked Mr. Stecyk if they would consider tabling the application until next month in order to speak with Mr. Davis and see if reducing the size of the deck and not needing a variance would be possible.
Mr. Stecyk said they were losing time.
Attorney Christiana noted there was 62 days alloted to make a decision after a public hearing was closed and if there would be a motion made that evening, there would need to be 3 votes all in favor of the motion. She said it was up to the Board’s discretion.
Chair Mallery proposed putting the application off until the July 16th, 2020 meeting in order to give the applicant a chance to speak with Mr. Davis.
There was no further discussion.
CONTINUED APPLICATION/PUBLIC HEARING
2020-02AV- Borrego Solar/ Paddock, Adam & Jaime
Area Variance
4784 Route 209/ SBL: 69.3-2-23/ R2
Proposed Use: The northeastern property line is proposed to be moved
approximately 35’-50’ to The northeast, enlarging the size of the lot to 2.896 acres.
-Area Variance required: Proposed use not permitted. Making a non-comforming use more non-comforming.
Mr. Brandon Smith was present on behalf of the application.
Chair Mallery refreshed the Board about what the application was about and noted the public hearing had been closed at the last meeting.
Mr. Smith stated he had nothing further to add and reiterated that the proposal would not have any sort of negative impacts.
Mr. Psaras made a motion:
DECISION # ZBA 2020-02 AV
A motion for approval is made based upon the available facts and Town of Rochester Zoning Code Chapter 140
Applicant: Borrego Solar/ Paddock, Adam & Jaime (Applicant/ Owner)
Reason for Request: The application proposes an Area Variance that would create an increase in a non-conforming use.
Location: 4784 Route 209 Total Acreage: +/- 1.851 & 2.437
S/B/L: 69.3-2-22 & 69.3-2-23 Zoning District: R-2
Code Enforcement Determination: Area Variance Zoning Permit: #19/537
Zoning Board of Appeals Application: 2/18/2020 SEQR Type: N/A
ZBA Application filed: 2/18/2020 SEQR Determination: N/A
EAF filed: N/A
Other Agency Referrals: Not Applicable
Documents considered by the Zoning Board of Appeals for review:
1. 02-05-2020-Borrgeo-Paddock-LLI Maps
2. 02-10-2020-Paddock LLI-Area Variance- Zoning Permit
3. 02-18-2020-Paddock-Borrego-Variance Application
4. 05-21-2020-Fornal letter to ZBA re Borrego-Borrego-Paddock
Notice of Public Hearing:
1. Published in the Shawangunk Journal March 12th, 2020
2. Notice by mail to known landowners within 500’ and application referral agencies
3. Posted on the Town of Rochester Clerk bulletin board
Date(s) of Public Hearing: March 19th, April 16th, May 21st
Place: Community Center, Accord, NY and Remote Dial-in (Zoom)
Public Comment: (see Minutes of Town of Rochester Zoning Board of Appeals, March 19th, April 23rd, May 21st )
* * * *
The Town of Rochester Zoning Board of Appeals hereby makes the following findings with respect to the specific criteria for area variances as set forth in Town Law and other applicable provisions.
1. Whether an undesirable change will be produced in the character of the neighborhood or a detriment to nearby properties will be created by the granting of the area variance.
a. Yes No
b. Finding: The setback requirements will not be reduced beyond the current code requirement for lot 69.3-2-22. The lot line adjustment would not decrease the front yard setback. Only the side setback will be impacted with a shift from approximately 80 feet to approximately 45 feet. This is within the side yard setback required by code of 40 feet. There is no proposed a change in use of the lots.
2. Whether the benefit sought by the applicant can be achieved by some method, feasible for the applicant to pursue, other than an area variance.
a. Yes No
b. Finding: The Zoning Board asked the applicant to consider moving the lot lines in the opposite direction to achieve the objective of placing the easement within a single lot. The applicant reviewed the suggestion and indicated although the area variance needed would be less, the outcome would simply shift the non-conformance from one lot, 69.3-2-22 to the other lot, 69.3-2-23.
3. Whether the requested area variance is substantial.
a. Yes No
b. Finding: The variance requested is substantial at 24.7%.
4. Whether the proposed variance will have an adverse effect or impact on the physical or environmental conditions in the neighborhood or district.
a. Yes No
b. Finding: Granting of the variance would have little to no affect, in either a positive or negative way, on the physical or environmental conditions.
5. Whether the alleged difficulty was self-created, which consideration shall be relevant to the decision of the board of appeals, but shall not necessarily preclude the granting of the area variance.
a. Yes No
b. Finding: The granting of the easement by the applicant was a self-created difficulty.
Determination based on the above factors:
It is hereby determined by the Town of Rochester Zoning Board of Appeals the request for an Area Variance is APPROVED.
Motion made by: Mr. Psaras
Motion seconded by: Mr. Fischer
Vote: Ayes: 3 Nays: 0 Abstain: 0 Absent: 0 Vacancies: 2
Adopted: June 18th, 2020
Mr. Fischer seconded the motion.
ROLL CALL:
Chair Mallery- Yes
Mr. Psaras- Yes
Mr. Fischer- Yes
All in Favor. Motion Carried.
3 ayes, 0 nays, 0 absent, 0 abstentions, 2 vacancies
There was no further discussion.
CONTINUED APPLICATION/PUBLIC HEARING
2020-01AV- Hoots, Allison& Sean
Area Variance
122 Catalpa Ln. / SBL: 77.3-1-8/ R2
Proposed Use: Use the space that is just under 800 sq ft of accessory building for private commerical music studio, consistent with a Class II Home Occupation Class II- requiring an area variance to fit musical instruments and equipment.
– Area Variance required: Home Occupation Class II: Proposed exceeds 500 sq ft of floor area 140- 19 A.
Mr. Sean and Mrs. Allison Hoots were present on behalf of the application
Chair Mallery explained what the application was about. He asked the Board if they had read the letters from May 29th, 2020 and June 6th, 2020 from Ms. Svenson and the Hoots’ respectively.
Mr. Psaras stated he would look at the letters quickly.
Chair Mallery stated for the record that he had read the letters.
Chair Mallery asked if they had any questions in regards to the mentioned letters.
The Board members stated they did not.
The Board began to review the 5 factors that they needed to take in consideration for variances.
-Whether an undesirable change will be produced in the character of the neighborhood or a detriment to nearby properties will be created by the granting of the area variance:
Mr. Psaras explained recording studios were not listed as Special Use Permit in the R2 zone, and he believed the exclusion was specific in this case and that calling it a Home Occupation was basically saying if paired with an Area Variance, then it would be allowed, but that wasn’t accurate.
Chair Mallery stated they had received a lot of testimonies from the neighbors that said there would be a detriment to the neighborhood if the area variance had been allowed. He said they had quite a bit of conflicting views.
Mr. Psaras stated that some of the factors that came out were out of the Town’s control such as the traffic issue, as he wasn’t sure they had the authority to regulate traffic volume on a given road.
Chair Mallery stated he agreed and many of the items they had heard from both sides may or may not have existed with or without the recording studio. He said they needed to focus on the effects on the neighborhood that would be in direct correlation with the recording studio, such as the noise.
Chair Mallery said for the purposes of their discussion he wanted to read into the record the definition of a home occupation:
“HOME OCCUPATION
Any use customarily conducted entirely within a principal structure and/or other structure accessory thereto and carried on by the inhabitants thereof, which use is clearly incidental and secondary to the principal use and does not change the character thereof. See § 140-19 for further descriptions of home occupations by class”
Chair Mallery noted there were 3 classes of Home Occupations I, II, and III and what had been discussed in regards to the current application was a Class II.
-Whether the benefit sought by the applicant can be achieved by some method, feasible for the applicant to pursue, other than an area variance.
Mr. Psaras stated certainly reducing the square footage would be an avenue to take, although he had not heard anything from the applicant in reducing the size. He stated they also had the opportunity to apply for a use variance.
-Whether the requested area variance is substantial.
Chair Mallery stated a Home Occupation Class II was up to 500 sq ft in an R2 zone and that the applicant was asking for an additional 284 sq ft.
Mr. Psaras and Attorney Christiana noted this was a 56.8% variance.
Chair Mallery said a 56.8% variance was substantial.
Mr. Psaras noted that this was even beyond what a Home Occupation Class III would allow ( 750 sq ft) and a Home Occupation Class III was not allowed in an R2 district.
-Whether the proposed variance will have an adverse effect or impact on the physical or environmental conditions in the neighborhood or district.
Chair Mallery explained he didn’t know how to answer that one, as the home occupation was in a self contained building.
Mr. Psaras stated the building had already been built so the footprint wasn’t expanding and the exterior would not be changed. Mr. Psaras questioned whether the noise could impact the environmental conditions.
Chair Mallery said the noise could have an impact but noted that he could not think of any type of home occupation that would not produce some kind of noise.
Mr. Psaras countered that in 140-19 where it list the Home Occupation classes and regulations, that it states there would be no detectable noise at the property lines and that the applicant’s noise engineer had measure the noise levels at 5 different points a the property lines and found there was a 6-8 decibel increase at the property and was in a document submitted by the applicant. He said also in the applicant’s submission there was a document from the NYS DEC that said the human reaction to a sound increase of 5-10 decibels was considered intrusive and he was inclined to believe it did impact the environmental conditions.
Chair Mallery said on the other hand, he had a neighbor who was an opera singer and he believed she kept her windows closed but he didn’t know if she had to, and the noise would still be detectable.
Mr. Psaras asked but was she applying for an area variance?
Chair Mallery said no, but he was just trying to think of the practical impact on the neighborhood.
Mr. Fischer said someone mowing their lawn would make a lot more noise than the recording studio as far as he was concerned because the studio had been sound proofed.
Chair Mallery stated when it came to this section, it seemed as though there had been effort to mitigate the sound and while noise may still had been detectable, did it have an adverse effect on the physical or environmental conditions? Chair Mallery said this was a separate issue from a Home Occupation where the Board may have taken a slightly different view of it.
Mr. Psaras stated noise was noise, it still had an impact when it was detectable.
-Whether the alleged difficulty was self-created, which consideration shall be relevant to the decision of the board of appeals, but shall not necessarily preclude the granting of the area variance.
Chair Mallery stated it was fairly obvious it had been self created as the structure had been built and the studio planned out before seeking an area variance.
Mr. Psaras explained it had also been stated in one of the documents the applicant had provided that it had been self created.
Chair Mallery suggested that since the next agenda item was closely related to the current application and the discussion in that may impact the decision of the application and that they table the discussion until after they considered the appeal.
Mr. Psaras said it was a large decision and it wouldn’t be wrong to take time to come to a conclusion they were all comfortable with.
Attorney Christiana stated it would be valuable, especially since the Board had now heard one another’s discussions, to go back and review the many submittals again, keeping in mind other points that had been brought up that evening by other Board members.
Chair Mallery noted the two applications were so closely related they needed to take in consideration each to decide the other.
Chair Mallery made the motion to table the matter until after consideration of the Catalpa Lane appeal and after they had time to compare and contrast the two. Mr Fischer seconded the motion.
ROLL CALL:
Chair Mallery- Yes
Mr. Psaras- Yes
Mr. Fischer- Yes
All in Favor. Motion Carried.
3 ayes, 0 nays, 0 absent, 0 abstentions, 2 vacancies.
CONTINUED APPLICATION/PUBLIC HEARING
2020-01CA- Rajkishun, Rovika- Austerweil, David-Marcus, Jesse- Tocco, MaryJean- Tiffany, Steven
Appeal of Code Enforcement
122 Catalpa Lane- Recording Studio
Reason for appeal: Appealing Code Enforcement Officer’s January 22nd, 2020 determination.
Ms. Emily Svenson, attorney for appellants, was present on behalf of the application. Mr. Sean and Mrs. Allison Hoots were present on behalf of the homeowners.
Chair Mallery reminded the Board of what the application was about and what had been discussed and decided upon at the May regular meeting.
Attorney Christiana stated to the Board that what they were doing was putting themselves in the place of the Code Enforcement Officer at the time he received the application and look at the evidence before them to determine if he made the correct decision. She stated the Board could substitute their decision if they felt he made an incorrect decision.
Chair Mallery said there were 5 considerations for the basis of the appeal presented in a letter from Ms. Svenson, attorney for appellants, dated March 25th, 2020. He stated their discussion should be based upon the 5 considerations that were set forth in the code #140-66 (c). He said the first point from the March 25th letter, was that a use variance needed to be established for the purposed commercial use. He said that in the AR-3, AB-3, and I districts a recording studio required a Special use Permit, in a B district it was a principal use, it was not listed as being a use in an R2 district. He read into the record a portion of #140-8 (A): “This shall not permit the reclassification of uses that are already listed nor shall the Town Board permit any use that is not listed in a particular district if that use is already permitted in another district.” He stated this meant the process was if it wasn’t mentioned, a Special Use permit would be need to be granted from the Planning Board however, if it was mentioned as a use in other districts, then that would not be possible. Chair Mallery said the question the appellant had posed was needing a use variance in order to have a recording studio in an R2 district.
Mr. Psaras said in this situation, clearly the recording studio was a commerical use, whether or not it was a home occupation was a question as well and wanted to hear the rest of the Board’s thoughts on whether or not they felt it was a home occupation.
Chair Mallery said it raised some questions for him as to what someone could do with their property and what you couldn’t. He stated the section in the code that dealt with home occupations talked about things that were customarily located in a house and items were reasonable for the use of the house. Chair Mallery stated playing music in a house was about as customary as someone could get, as he did it all the time on his stereo or computer and he had even tried to make music using a mandolin and a harmonica to no success and he had had teachers come over to teach him how to play the mandolin and his block would have large get together where people would play music, people liked to play and have music. He stated he also had a tape recorder in his house and if he wanted to record himself playing the harmonica or mandolin and he could do that, things like making, playing, or recording music seemed like things that were customary to things someone would do in their home.
Mr. Psaras asked but was he doing it commercially or for his own benefit? He stated he felt there was a line between personal use and commerical use and the schedule of districts was where the line existed. He said they had stated to the applicant in the previous months that personal use was okay but once it crossed into commercial, that was when the schedule of districts came into play to define what the line was.
Chair Mallery asked if personal use could be commerical.
Mr. Psaras answered no. He said there was a declination between commerical and personal, one was for financial gain.
Chair Mallery asked if Mr. Hoots was to record something and sell it, and it was only him on the recording, could he sell it?
Mr. Psaras stated if it was only Mr. Hoots, then that would be fine it was when other musicians got involved, that it would change. He said even in the home occupation class II definition, it stated there could be only be one other employee, and this proposal would bring more traffic as there would be several employees (musicians) coming in, and he felt the intent of that regulation was to limit traffic.
Chair Mallery asked if Mr. Psaras was saying if Mr. Hoots or anyone played a solo that was fine but as soon as it became a duet it was not?
Mr. Psaras stated what he was saying was once it became commerical the schedule of regulations were the deciding authority.
Chair Mallery stated that they had both agreed that if Mr. Hoots recorded himself playing a banjo or what have you, and it was a solo that was alright to sell. He then asked Mr. Psaras if he was saying once it became a duet, it wasn’t?
Mr. Psaras said it was a fine line and it would be commerical even if it was just one individual.
Mr. Fischer asked if someone had a band, and they used the recording studio to practice, then went out and played their music elsewhere and received money, would that be the same thing?
Mr. Psaras said no.
Mr. Fischer asked, why not?
Mr. Psaras stated they would earn the money where they were playing, not at the site they were practicing.
Mr. Fischer noted that if they didn’t practice, then they would not earn any money.
Mr. Psaras argued it was their option to practice or not.
Chair Mallery said from a practical stand point if someone didn’t practice, then they wouldn’t make much money.
Mr. Psaras said they would still be earning money at the site at which they were performing and not at the practice facility. He used the example that if you were a golfer you wouldn’t get paid at the driving range, you’d get paid at the tournament. He said he found value in what was being said, but that the practice space wasn’t where the financial transaction was taking place.
Chair Mallery asked could you argue that you would record something in your home, but you weren’t selling it out of your home, you’d take it elsewhere and you wouldn’t make the money until it was taken to a music producer, would that be a valid argument?
Mr. Psaras stated he felt they were going down a lot of “ifs” and “buts” on this and he thought and he appreciated the testing of the theories but the list of scenarios that could arise were far more than they could list and enumerate.
Attorney Christiana said for all class of home occupation, I, II, and III all were talking about businesses in a residence so it would be comtemplated on any home occupation application, that was what it was.
Mr. Psaras noted that what it came down to was, if the code enforcement officer accurate by determining that this was a class II home occupation, that was what the appeal was based on.
Chair Mallery suggested moving on. He stated they had addressed the issue of if there would be detectable noise, but another item of the appeal was this was not a class II home occupation because of the size and the use of mechanical equipment but rather a class III which was 750 sq ft and allowed mechanical equipment.
Mr. Psaras stated the Home Occupation Class III’s definition was similar to a Class II.
Chair Mallery said there had been a discussion of whether or not a second musician would be considered an on-site employee.
Mr. Psaras said where he was going with it was that the intent of limiting the amount of employees was intended to limit the number of people on that site partaking in the commerical activity. He stated there was an exception for family members who would live in the dwelling and not cause additional traffic. He said they had heard the term collaborator come up at several meetings and collaboration was categorized as a vendor, or employee, or a client thats how someone generated business. Mr. Psaras also wondered if perhaps Mr. Davis, when he received the application, should have looked at the square footage, etc and determined it to be a class III and asked where in that application did it show evidence of being a Class II and not a Class III?
Chair Mallery said at this point that was what was being presented for the appeal and part of their duty was to consider an item exactly like the one before them.
Mr. Psaras said this was the situation, that you couldn’t change the class of a home occupation and ask for an area variance for additional square footage, without going up in class. He stated it brought up too much precedence. Mr. Psaras suggested tabling he application til the next month’s meeting.
Chair Mallery stated a number of issues had been raised and there were no firm conclusions and he felt they needed more time to firm up their views on the application.
Attorney Christiana said they had lots of material to review with the application, much like the previous one, and they might want to take the time to go back and review it all again.
Chair Mallery asked Attorney Christiana if there was anything they had missed or needed to bring up.
Attorney Christiana said she was going to look at it all again as well and attorney’s advice on the matter she preferred to give on the outside.
Mr. Psaras made the motion to table the discussion and decision until the July 16th, 2020 meeting. Mr. Fischer seconded the motion.
ROLL CALL:
Chair Mallery- Yes
Mr. Psaras- Yes
Mr. Fischer- Yes
All in Favor. Motion Carried.
3 ayes, 0 nays, 0 absent, 0 abstentions, 2 vacancies.
Chair Mallery reminded the Board to review the material so they could make a decision at the next meeting. He also asked that the secretary reach out to Mr. Barringer, Alternate, to have him view the meeting so he would be prepared next month as well.
OTHER MATTERS:
-Accepting the regular meeting minutes of May 21st, 2020
The Board tabled the May 21st, 2020 meeting minutes until next month.
ADJOURNMENT:
Mr. Psaras made the motion to adjourn the meeting at 8:18pm. Mr. Fischer seconded the motion.
ROLL CALL:
Chair Mallery- Yes
Mr. Fischer- Yes
Mr. Psaras- Yes
All in Favor. Motion Carried.
3 ayes, 0 nays, 0 absent, 0 abstentions, 2 vacancies.
Respectfully Submitted,
Brianna Tetro, Secretary
Accepted January 21st, 2021