ZBA Minutes – March 2014 | Town of Rochester

ZONING BOARD OF APPEALS
TOWN OF ROCHESTER
ULSTER COUNTY
ACCORD, NEW YORK

MINUTES of March 18, 2014 the Town of Rochester Zoning Board of Appeals, held at the Town of Rochester Town Hall, Accord, NY.

Chairperson Haugen De Puy called the meeting to order at 7:00PM

PRESENT: ABSENT: Beatrice Haugen- De Puy, Chairperson

Cliff Mallery, Vice Chair

Charlie Fischer

Steven Fornal

Troy Dunn

Also present:

Rebecca Paddock Stange, Secretary.

Chairperson Haugen De Puy welcomed everyone to the first ZBA Meeting of 2014 and noted that we had to cancel the last 3 meetings due to the weather and one of the applicant’s jobs which is plowing county roads.

Chairperson Haugen De Puy introduced the Board to the Public and noted that Mr. Fornal is the new member of the ZBA. He used to be the PB Chair and he took Mr. Dawson’s place as Mr. Dawson moved on to the Planning Board.

PUBLIC HEARING FOR APPEAL OF CEO DETERMINATION

Salvatore & Isabel Marano, Appeal of CEO Determination stating that an Area Variance is required for two dwellings on less than 2 acres (Section 140-41B, Mobile home has been vacant for more than 5 years), Tax Map #77.1-2-10, ‘B’ Zoning District

Chairperson Haugen De Puy noted that this appeal states that an Area Variance is required for two dwellings on less than 2 acres (Section 140-41B, Mobile home has been vacant for more than 5 years).

Mr. Daniel Marano was present on behalf of the application.

Chairperson Haugen De Puy noted that Mr. Davis, TOR Code Enforcement Officer was also present at this meeting. She asked if Mr. Davis would explain his determination.

Mr. Davis stated that his determination came from a conversation with Mr. Marano when he came into the CEO Office. Mr. Marano wanted to demolish and take down the old buildings there and put up a new one. In speaking with him he stated that no one had lived there for 5 years. There is a 5 year lapse period for non conforming. In light of the circumstances, if he had known then what he knows now, that they had maintained that trailer- it had electric, telephone and cable utilities and the family periodically used it—it was never totally vacant. Had he known that, he didn’t think they’d be here tonight. He was agreeable to grant the building permit had he known the circumstances. The applicant did document Central Hudson bills and things like that.

Mr. Mallery questioned if this was allowable under 140-40(A).

Mr. Davis answered yes.

Chairperson Haugen De Puy noted that the process was still going to move forward because the application process was started.

Mr. Marano brought Mr. John Dawson as a representative and presented the Board with a letter of authorization allowing him to do so.

Mr. Dawson noted that pre-1970 there were 2 trailers on the property, a motel, and a diner on this property. Since then both trailers have been replaced, the motel was ripped down, the diner caught fire and some of it remained, but now there is just one trailer on one piece of property. The family was under the understanding that as long as they maintained the trailer, which his grandmother lived in, it would always be conforming in the sense that they could replace it. That is what they believed and that’s why this process was started, because they thought this was the right way to go and Mr. Marano did do it the right way. The family would like Mr. Marano to stay close by because the family isn’t well. They’d like to maintain that closeness of the family and that’s why they were here and they all knew the facts of everything going on that they believed to be so. He believed this falls under pre-existing non conforming use, but because of the occupancy it threw a wrench in the works.

Chairperson Haugen De Puy noted that she had done her research on this. Mr. Davis already stated that it was not the intent of the owner to discontinue the use by posting signs or boarding up the windows or doing anything such as part of 140-41C(1). With that being said, there was electric and there were things going to it and maybe someone slept there at times. Maybe it wasn’t fully occupied for the 5 years, but it was utilized. In the process of placing this new trailer, would the trailer then be conforming? Or would it still be a non conforming use because of the two acres?

Mr. Davis noted that this was kind of a play on words. It still has to conform to the setbacks, but it is still a pre existing non conforming lot.

Chairperson Haugen De Puy noted that she had been reading 140-41C(3) which says that you can re-establish the use.

Mr. Davis noted that the building itself needed to be conforming to the energy code and things like that, but the lot size was going to be the same.

Mr. Fornal noted that determining that the bills were for this particular trailer- as far as he knew the house numbers were the same.

Mr. Dawson noted that they have different addresses. On the electric bill turned in there were two separate addresses, the same as the cable bills. They didn’t write that down on the original application, but the bills were coming in under the two existing addresses.

Mr. Fornal noted that in the November Meeting he believed it was stated that the trailer was used as storage?

Mr. Dawson noted that they stored the grandmother’s belongings.

Mr. Marano noted that the old part of the diner was used for storage.

Mr. Fornal questioned if the contention is that it was habitated?

Mr. Dawson noted that it had the grandmother’s belongings in it. You could go in it and turn on the TV. He wouldn’t want to live there, but it was maintained in that sense.

Mr. Fornal noted that it would seem that the use that is being asked for is a habitable domicile.

Mr. Marano agreed with this.

Mr. Fornal noted that the use that it was being used for was for storage and not being lived in.

Mr. Dawson noted that it was lived in by the grandmother. She passed away about 5 years ago.

Mr. Marano noted that the home was occupied. It might not have been slept in, but it was occupied.

Mr. Fornal questioned if it was lived in daily?

Mr. Marano answered, not every day of the week.

Mr. Fornal noted that he passed by there quite a few times and it did not look like it was being lived in.

Mr. Dawson noted that it wasn’t perceived that it needed to be as long as it was maintained, which it was with the utilities to it.

Chairperson Haugen De Puy noted that they also have the tax bills that were paid.

Mr. Dunn noted that he didn’t believe that there was anything in the law that used the terms ‘lived in’. The real issue is, was the building or structure abandoned? In the words of the CEO, the building was not abandoned. In light of the evidence that Mr. Marano presented and in the words of the CEO, that it had not been abandoned, he thinks this issue is put to bed.

Mr. Mallery had a question as a point of clarification. Under 140-41C deals with under what circumstances could determine that something was abandoned. Then, under item D. of that section it goes on to say that the building inspector, upon determining these circumstances exist, the building inspector shall, by certified letter so notify the property owner. This says that a certified letter has to be sent to the property owner and then it says that the property owner has a year after that.

Mr. Davis noted that there was never a letter sent that he was aware of. The diner was condemned. The trailer was not, so that would indicate to him that it was still in operable conditions.

Mr. Mallery questioned if under this section, that Mr. Davis felt that the trailers were abandoned, the CEO would have sent a certified letter and then they still would have had a year.

Mr. Davis said, yes.

Mr. Dunn agreed with that. It was an excellent point, but the term of beating a dead horse applies here. They don’t even need to get to item D. They can if they want to, but there was no letter. The real question was when was the clock hacked? The clock never started running because it was never abandoned.

Chairperson Haugen De Puy noted that she did look up the word ‘vacant’ and there was no definition of ‘vacant’ in the building code. She did not try ‘occupancy’.

Mr. Dawson noted that in the beginning some of the confusion from the applicants was the condemnation of the diner.

Mr. Fornal saw this as the use in 140-41C(2), “The building has not been occupied for five years or more and/or the use has not been exercised.” The use they are asking for is a habitable domicile. That use was not used for over 5 years. They weren’t asking for just a building for storage and to put on a TV. They were asking to live there.

Chairperson Haugen De Puy noted that if she could find in this law where it said, ‘habitable domicile’, she would be happy to agree with Mr. Fornal, but she couldn’t.

Mr. Dawson could point out many homes in the community that aren’t occupied that are their parent’s places or just places that are setting empty.

Mr. Mallery noted that it said, ‘and/or’, so it in the alternative anyway.

Chairperson Haugen De Puy questioned if there was any public comment.

There was not.

Mr. Dunn motioned to close the Public Hearing. Seconded by Mr. Fischer. No discussion.

Vote:

Haugen- De Puy, Chairperson- Yes Mallery, Vice Chair- Yes

Dunn- Yes Fornal- Yes

Fischer- Yes

Motion carried- 5 ayes, 0 nays, 0 abstain, 0 absent

Mr. Mallery motioned for the Town of Rochester ZBA to grant the appeal brought forth by applicants Mr. Salvatore Marano and Mr. Daniel Marano based on the information and testimony brought forth at the Public Hearing in regards to Zoning Permit #300 of 2013 “Two dwellings on less than 2 acres in Business District (Section 140-41B.) Area Variance required (Mobile Home has been vacant for more than 5 years)”, Tax Map #77.1-2-10, ‘B’ Zoning District of the Town of Rochester. Seconded by Mr. Dunn.

VOTE:

Haugen- De Puy, Chairperson- Yes Mallery, Vice Chair- Yes

Dunn- Yes Fornal- No

Fischer – Abstain

Motion carried- 3 ayes, 1 nays, 1 abstain, 0 absent

PRE-APPLICATION PRESENTATION

Property Owner: Connie Happeny and Kathy Ness, Applicant: Jolanda Jansen, PE, Esq., Use Variance Required, Animal Boarding is not a permitted use in an R-5 District, Tax Map #67.2-2-1.23, R-5 District

Attorney, Jolanda Jansen and applicant, Connie Happeny were present on behalf of the application.

Ms. Happeny noted she was born and raised in Kingston. She and her sister had fostered some dogs and rescued some dogs and decided to open their own building and rescuing dogs without putting them in kennels. Not everyone wants someone to go to their house to watch their dogs. Their motto is ‘couches, not kennels’. They bought a house with 7 acres in a very nice neighborhood. One day the building inspector for the Town knocked on their door and let them know that this type of business wasn’t permitted in this district. When they closed on the house, their attorney was supposed to check into this, but they never did. There are no cages, they have a 6’ fence surrounding their backyard. The dogs sleep on beds, couches, or on floors—wherever they are comfortable. They have crates with open doors for dogs that feel more comfortable in their own spaces. Downstairs there is a whole playroom with all dog furniture. This is their whole playroom completely dedicated to the dogs. They even watch TV.

Ms. Jansen showed on the map the close proximity this property is in relation to the AR-3 District where it is permitted to do this business.

The Chairperson asked how much of the outside was used for the dogs.

Ms. Happeny noted that they had 2 acres fenced in with a black chain linked fence. They also have a huge dog shed that they made over with tapestries and things. It’s available for them to get in out of the sun or cold. There is a whole section where they can separate themselves from each other if they don’t feel like mingling. Dogs bark when they need something. If their needs are met, they don’t bark. They have between 6 and 10 dogs at any given time. 6 of them are their own.

Ms. Jansen had tried to find a definition of a kennel operation, but what her clients do isn’t really in that realm.

The house sits back about an acre from the road. There’s a 3 car garage, home, covered patio, another building…There are trees and brush in the front, so you can’t see anything in the back from the front.

Mr. Dunn questioned if there was any visual evidence from outside that this was a kennel?

The applicant answered, no. They have a little sign out front is all. They weren’t proposing to build any more structures.

Mr. Fornal noted that a Use Variance is very difficult to get in New York State. The Town Board is now in the process of revising the Town Codes and this is one that was strongly encouraged to allow this type of a use in an R-5 District. That is a priority and would be via a Special Use Permit, which would be a much easier way to go. He believed that these changes could be seen as early as 6 months. This would then be an allowable use in that district, so a Use Variance wouldn’t be needed.

Chairperson Haugen De Puy read the criteria for a Use Variance as follows:

To allow a use not otherwise allowed in zoning, an applicant must demonstrate to the Board- unnecessary hardship. Such demonstration includes all of the following, for each and every permitted use.

cannot realize a reasonable return- substantial as shown by competent financial evidence;
alleged hardship is unique and does not apply to substantial portion of district or neighborhood;
requested variance will not alter essential character of the neighborhood;
alleged hardship has not been self-created.

If approved shall grant minimum variance necessary, and may impose reasonable conditions.

ACTION ON MINUTES

Mr. Fornal motioned to approve the November 19, 2013 Minutes. Seconded by Mr. Fischer. No discussion.

VOTE:

Haugen- De Puy, Chairperson- Yes Mallery, Vice Chair- Abstain

Dunn- Yes Fornal- Yes

Fischer – Yes

Motion carried- 4 ayes, 0 nays, 1 abstain, 0 absent

OTHER MATTERS

AG & MARKETS TRAINING

Chairperson Haugen De Puy noted that in regard to the discussion on the Rominger Appeal, Mr. Chipman, Supervisor has asked with a representative from Ag & Markets to meet with the Town Board at their Audit Meeting at 5:30PM and training credit would be given to ZBA Members will be given for attendance.

Chairperson Haugen De Puy noted that with regard to the Rominger Appeal regarding Flying Change Farms— although Board Member may have received paperwork regarding this in advance of this meeting, she wanted to caution everyone on the Board—just because you get something, does not mean you can take it and run through the neighborhood with it and that is what happened with this case with Rominger. If people were going to be members to this Board and if they are given pre-emptory information, Board Members are to keep it to themselves from now on, and the next time she finds out, she will ask the Supervisor to convene an Ethics Board and take care of the person that’s done it. That’s how serious that is. This afternoon as a result of a ZBA Member going out there to the public and making an announcement that this was coming in before the Board, the girls in the Town Offices could barely keep the phones on the hood.

Mr. Dunn wanted to make a point. He knew nothing about this, but he suggested one of two things. Since the Chairperson has opened this can up here, he would continue and pop the entire lid in front of everyone here, or go into executive session. Those are the two choices, because the Chairperson cracked the lid and it’s inappropriate. Peel the band aid all the way off.

Chairperson Haugen De Puy was trying very hard to do that- she was just making an advisement.

Mr. Dunn noted that it was too late.

Chairperson Haugen De Puy noted that it wasn’t. Nothing has been stated—

Mr. Dunn interrupted and stated that the Chairperson just accosted a Board wrongly, when she needed to go after one individual, so it should have gone into executive session.

Mr. Fornal noted that the Chairperson made a general statement that when you have information, you cannot divulge it until it at least comes out in front of the public at a meeting.

Mr. Dunn agreed, but she got in there kind of heavy and now the public thinks it could be any one of them. He didn’t want his reputation tarnished because it wasn’t him.

At 7PM the ZBA went into Executive Session.

At 7:15PM the ZBA returned from Executive Session and Chairperson Haugen De Puy noted that no decisions were made and no monies were expended.

SEQRA- INTENT FOR LEAD AGENCY RESPONSE TO TORPB

Re:

PB 2014-02 SUP New Application Presentation

Special Use and Site Plan review – Resort Hotel

Granit at Hudson Valley Resort LLC,

proposes renovation and eventual demolition of current Granit resort hotel and replacement with new resort hotel and associated property improvements for continuation of all hotel, resort, and commercial activities, as well as accommodation for potential gaming facilities,

400 Granit Rd., S/B/L #76.4-1-38, 76.4-1-39.1, 76.3-1-11.12, 76.4-1-56.10, ‘R-5’ zoning district

Chairperson Haugen De Puy noted that the ZBA needed to vote on whether or not they agreed with this Lead Agency Request to allow the TORPB the Lead Agency in regards to the application.

Chairperson Haugen De Puy motioned to allow the TORPB to be Lead Agency in regards to this project. Seconded by Mr. Fornal.

Discussion:

Mr. Dunn questioned what the Board’s options were? What was the time frame?

The Board noted it was 30 days.

Mr. Fornal noted the other options were that the ZBA takes Lead Agency or any of the other Lead Agencies. Each Agency gets a chance to respond to whether they want it or not, but the TORPB really is the appropriate agency to take it.

Mr. Dunn questioned if any of the other agencies have stepped up?

The Secretary noted that the UCHD has come back and said that the PB could have it.

Mr. Fornal noted that this was standard.

Mr. Dunn didn’t see this before he came in to this meeting tonight. That’s why he was asking those questions.

Chairperson Haugen De Puy noted that the following were the involved agencies:

Town of Rochester PB- Site Plan/Special Use

ZBA of TOR- Area Variance

DEC- Stormwater Permit

UCHD- Water supply and sewage

NYSDOH- Public water

NYS Gaming Commission- Gaming license

UCDPW- Access to facility

She then questioned if Mr. Dunn wanted to let the 30 days to lag?

Mr. Dunn asked that exactly- either the time frame or all agencies have replied or negatively replied.

Mr. Fornal noted that they would have to have another meeting.

Mr. Dunn noted that if they don’t respond it’s automatic, so why would they need to meet?

Mr. Fornal questioned if that was the thought, why wouldn’t they do it now?

Mr. Dunn noted that there’s a reason that there are 30 days, so, is there a downside?

The Secretary noted that one of the downfalls for the applicant to agencies that don’t respond is the potential to hold their review up another month if there aren’t 30 days in between the time that the letter was sent and the next meeting. That isn’t the case with this particular application though.

Mr. Dunn clarified that they were only concerned with the ZBA, then?

That was the case.

Mr. Dunn noted he didn’t have a problem with it.

Chairperson Haugen De Puy motioned to allow the TORPB to be Lead Agency in regards to this project and the ZBA will be an involved agency. Seconded by Mr. Fornal.

VOTE:

Haugen- De Puy, Chairperson- Yes Mallery, Vice Chair- Yes

Dunn- Abstain Fornal- Yes

Fischer – Yes

Motion carried- 4 ayes, 0 nays, 1 abstain, 0 absent

Chairperson Haugen De Puy motioned to schedule the April meeting to April 16, 2014 for the purposes of having the Town Attorney present at the April Meeting and that such is advertised. Seconded by Mr. Fornal. No discussion.

VOTE:

Haugen- De Puy, Chairperson- Yes Mallery, Vice Chair- Yes

Dunn- Yes Fornal- Yes

Fischer – Yes

Motion carried- 5 ayes, 0 nays, 0 abstain, 0 absent

ALTERNATE

Mr. Fischer questioned if they had an alternate on this Board?

The Secretary noted that she quit before her first meeting.

ADJOURNMENT

Mr. Fischer motioned to adjourn the meeting. Seconded by Mr. Fornal. All members present in favor.

Since there was no further business, at 8:05PM Chairperson Haugen De Puy adjourned the meeting.

Respectfully submitted,

Rebecca Paddock Stange, Secretary

DRAFT