ZONING BOARD OF APPEALS
TOWN OF ROCHESTER
ULSTER COUNTY
ACCORD, NEW YORK
(845) 626-2434
btetro@townofrochester.ny.gov
MINUTES of the March 21st, 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.
PRESENT: ABSENT:
Cliff Mallery
Steven Fornal
Charles Fischer
Erin Enouen
Bruce Psaras
Also present:
William Barringer, Alternate. Brianna Tetro, Secretary.
CONTINUED APPLICATION/ PUBLIC HEARING
2019-01AV
Peter & Lyn Tschirky
Area Variance
222 Queens Highway, Tax Map #68.19-2-48, R-1 Zoning Distrct, .0.5 Acres.
-Proposing to construct new garage. Garage does not meet 25’ set back.
Mr. And Mrs.Tschirky were present on behalf of the application.
Chair Mallery asked that, for the record, Mr. And Mrs. Tschirky present their application the board.
Mr. Tschirky explained they were proposing a two car garage on their property that would be 20’x24’ and that they had surveys done that were presented at the previous month’s meeting. He stated the original plan was 24’x24’ but they reduced that size and moved it over more to allow a less setback intrusion.
Chair Mallery requested that, for the record, Mr. And Mrs. Tschirky explain why there wasn’t another place to put the garage other than where they were seeking the variance.
Mr. Tschirky explained that in the back was where the septic was located and in the front was where the well was located. Therefore the only place they could build the garage was the area where they were seeking the variance.
There were no comments or questions from the public.
There were no more comments or questions from the Board.
Mr. Fischer made the motion to close the Public Hearing. Mr. Fornal seconded the motion.
All In Favor. Motion Carried.
5 ayes, 0 nays, 0 abstentions, 0 absent
Mr. Fornal made a motion to the Board:
Facts established and DECISION:
Whereas an Application of Zoning Permit and Classification (#18/401) was filed 26 November 2018 for building a 24′ x 24′ garage and was determined to violate the 25′ side yard setback for R-1 properties thereby requiring an Area Variance.
Whereas an Application To Zoning Board Of Appeals requesting an Area Variance for 13′ was filed 27 November 2018.
Whereas a letter (dated 11-28-18) was submitted on 27 November 2018 detailing the narrative for why an area variance was needed (no other area for garage to be practically placed on property).
Whereas a pre-app meeting was held with ZBA on 13 December 2018 during which the Tschirkys explained their garage building project and were asked to provide a survey map in order to determine distance to side yard lot line; to consider downsizing the garage; to provide height of proposed garage and house (to comply with 140-13D “All unattached structures shall be separated by a minimum of 12 feet or one-half the average height of the two structures”); and produce a letter from neighbor as to their opinion on the proposed project.
Whereas a new Variance Application (#2019-01) was filed on 7 February 2019.
Whereas a letter from closest neighbor Laryssa Pavliv, at 218 Queens Highway was submitted on 15 February 2019 declaring there was no objection to the variance request.
Whereas at the 21 February 2019 ZBA meeting the Tschirkys provided the height of the house at 12′; height of garage at 12′; a survey map showing the lot line in question. They also stated that the garage will be reduced in size, thereby reducing the variance request to 9′ / 11′.
Whereas the ZBA determined this application to be a Type II SEQR classification per 6 NYCRR Part 617.5(c)(12) and requires no further review.
Whereas the proposed garage would now be approximately 10+’ from principle structure (ergo fulfilling 140-13D requirement).
Whereas the proposed garage would fit the character of the neighborhood (East side of Queens Hwy) as most lots are non-conforming with houses that are single story with attached and detached garages in the side yard.
Whereas the proposed garage would benefit the applicant without negatively impacting the neighborhood or environment.
Whereas the limits to placement of garage due to septic field and well cannot be considered a hardship as such existed at time of purchase of property
Whereas the Area Variance requested (9′ at 36% and 11′ at 44% or 40% average) are moderately substantial.
Therefore, based upon facts and information obtained and reasons stated above, the Town of Rochester Zoning Board of Appeals, on this 21st day of March 2019, approves the Area Variance for up to 11′ (thereby requiring a minimum of 14′ to lot line) with the following condition:
• A building permit be obtained before construction begins on garage
Motion made by: Mr. Fornal
Motion seconded by: Ms. Enouen
Vote: Ayes: ¬¬¬¬¬¬¬ 5 Nays: 0 Abstain: 0 Absent: 0
Adopted: March 21st, 2019
CONTINUED APPLICATION/ PUBLIC HEARING
2019-02 Code Interpretation
Melanie Hulse
40 Sidney Street, Tax Map #84.7-1-40, R-2 Zoning District, 0.449 Acres
-Proposing expansion of single family residence on an undersized lot.
Code Interpretation- ZBA interpretation requested of #140-43 (A).
#140-43 (A) reads: “A principal structure may be erected on any non-conforming lot of record existing at the time this Law is enacted provided no front yard is reduced in size and no side yard is reduced to less than 50% of the requirement for the district in which it is located or 20 feet, whichever is greater, and a sewage disposal system meeting New York State standards, including well and septic isolation distances, can be placed on the lot should public facilities be unavailable”
Ms. Melanie Hulse and her architect, Mr. Paul Jankovitz were present on behalf of the application.
Chair Mallery asked that Ms. Hulse and Mr. Jankovitz would state their case and provide anything they would like to provide to the Board.
Mr. Jankovitz stated they were looking for an interpretation of the Zoning Code #140-42 and #140-43 and that this was a pre-existing structure on an undersized lot with various setbacks that were really meant for a 2 acre lot. He further stated that there were constraints in the front yard as there was a community well and constraints in the rear yard as the septic was there and it was recently reworked. Mr. Jankovitz stated there were two frontages that went to the street and in order to main those setbacks and the rear setbacks they were basically looking for was a side yard variance but using the exception of #140-43 they believed it would apply to their particular case to an undersized lot.
Mr. Psaras stated he had written an analysis of #140-43 and provided it for the record;
“The intent and impact of ordinances may seem contrary at times.
Near end of the last month’s meeting the applicant’s architect commented that he perceives 140-43 as possibly providing an unfair advantage to developer of a vacant lot when compared to a lot having an existing principal structure. I think this is an important consideration in the interpretation of the ordinance.
• We are fortunate to have Mr. Fornal, who was a contributor in the drafting the ordinance on the ZBA and present at the both last month’s meeting and this meeting.
• Mr. Fornal indicated in the last meeting the original draft of the ordinance included specific language with regard to vacant lots.
• Prior to adoption the word vacant was redacted and the ordinance adjusted so that it would accommodate accessory buildings, e.g. a wood sheds, storage sheds, etc. that are common in the community.
• I interpret the ordinance as intended to encourage development on non-conforming lots so that the potential for detrimental effects on the district are reduced.
• This is achieved in part by providing relief related to setback requirements.
• In my experience neglected and undeveloped lots in a residential district may have less frequent maintenance, become over grown, invite dumping, attract nuisance wildlife, transient activities, etc.
• I do not believe this to be providing an advantage to those developing vacant lots, but rather a pathway to encourage the development.
• Interpreting the phrase “A principal structure may be erected on any non-conforming lot” as allowing, essentially, the repair, reconstruction, restoration and/or expansion of a currently existing principal structure does not seem logical.
• The plain meaning of the phrase “may be erected” implies that a principal structure has not yet been erected on the non-conforming lot.
o Unambiguous words in an ordinance should ordinarily be given their plain meaning. Doctors Council v. NYC Employees Retirement System, 71 N.Y.2d 669, 674-75.
• Other, more specific sections of Article 6 deal with restoration, reconstruction, and expansions; those sections which specifically deal with the situation the applicant is presenting control over more the general sections.
o See Section 140-41, Restoration, Reconstruction or Re-establishment; Section 140-42, Changes, Additions, and Expansions.
• Therefore, the sole use of “erected” in Section 140-43 necessarily implies the exclusion of other non-erection activities mentioned elsewhere, such as alteration, repair, enlargement, and so forth.
o (in legal speak, expressio unius est exclusio alterius). See, e.g., Mac Fadden v. Martini, 463 N.Y.S.2d 674, 679 (“Where a law expressly describes a particular act, thing or person to which it shall apply, an irrefutable inference must be drawn that what is omitted or not included was intended to be omitted or excluded.”)
• Even if Section 140-43 could arguably apply, the more specific ordinances control over the general one, e.g., In re Jackson, 27 Misc.3d 463.
o The ordinance must be construed as a whole, and its various sections must be considered together and with reference to each other. East Acupuncture, P.C. v. Allstate Ins. Co., 61 A.D.3d 202.
• The legislative history of the ordinance indicates that the intention was to permit the erection of principal structures on non-conforming lots that were either vacant or only contained accessory structures.
o The history of an ordinance’s amendment may be considered in interpreting that ordinance. Lansdown Entertainment Corp. v. New York City Dept. of Consumer Affairs, 74 N.Y.2d 761, 763; Holly Holding Corp. v. Moss, 246 A.D. 57.
• The ordinance is only “strictly construed against the municipality” (read: “tie goes to the applicant”) if there is ambiguity in the language of the ordinance. Matter of Allen v. Adami, 39 N.Y.2d 275, 277.
o In the reasons stated above, there is no ambiguity.
o In any event, assuming the Zoning Board has the authority to interpret the ordinance, the Board’s interpretation need only be reasonable and rational to be upheld. Frishman v. Schmidt, 61 N.Y.2d 823.
• There is no question a principal structure has already been erected on the lot. This is not a new construction, but rather repair, reconstruction, restoration and/or expansion of the existing structure as noted on the plans submitted.
• To provide relief for changes to an existing principal structure under 140-43 would have the undesirable impact of allowing a furtherance of non-conforming extension and expansion.
• Applicants seeking to expand or extend an existing a principal structure on a non-conforming lot are able to, and should, seek relief through an Area Variance application.’’
Chair Mallery stated that the language of #140-43 was pretty clear but that it could be argued that if someone could erect a structure on a non-confirming lot, then why couldn’t someone alter it, repair it, and do various other things to it.
Mr. Psaras stated that he felt someone could, but that he didn’t feel like it could be done under #140-42 or #140-43.
Chair Mallery said basically all Mr. Psaras was saying in his analysis was that this was really an Area Variance and that there was no exception to the Variance.
Mr. Psaras said he would encourage Ms. Hulse to submit a new application for an Area Variance.
Chair Mallery stated that he could still see where #140-43 did apply but that he could also see the other side of the argument too.
Chair Mallery then asked Ms. Hulse if she was prepared to go ahead with an Area Variance application.
Mr. Jankovitz stated that was a direction they could go in and that they certainly needed an area variance because they had tried everything else and the property didn’t have a lot of options when it came to making changes.
Mr. Fornal said that the home had been built before the Zoning Code came into place in 1969, the house was put on it and expanded thereafter, and a new code came into place in 2009 and now seeing expansion again. He explained that saying the lot was small and didn’t have a lot of options for improvement was pre existing and known to Ms. Hulse when she bought it.
Chair Mallery asked if there were any members of the public had anything questions or comments.
There were no questions or comments from the public.
Ms. Enouen made the motion to close the Public Hearing. Mr. Fornal seconded the motion.
All in favor. Motion carried.
5 ayes, 0 nays, 0 abstentions, 0 absent
Mr. Fornal made a motion to the Board:
Facts established and DECISION:
Whereas an Application Of Zoning Permit and Classification (#19/016) was submitted on 22 January 2019 and was classified as requiring an Interpretation from the Zoning Board of Appeals (ZBA).
Whereas a Variance Application was submitted on 31 January 2019 requesting an Interpretation of § 140-42 and § 140-43 of the Town of Rochester Zoning Code.
Whereas §140-42 C in relevant part stipulates, “…a nonconforming single or two-family residential use shall be granted an exception from this requirement upon receipt of an area variance from the Zoning Board of Appeals.”
Whereas § 140-43 Use of Existing Non-conforming Lots of Record as is contained in the original online copy of the code stipulates: “A structure may be erected on any lot of record, existing at the time this Law is enacted; provided no front yard is reduced in size and no side yard is reduced to less than 50% of the requirement for the district in which it is located or 20 feet, whichever is greater; and a sewage disposal system meeting New York State standards, including well and septic isolation distances, can be placed on the lot should public facilities be unavailable.”
Whereas in the Spring of 2015 it was discovered that § 140-43 was being applied in contradiction to the original intention of the code (which was to have been applied to vacant, non-conforming lots of record only).
Whereas in the Spring of 2015 a proposed § 140-43 language change was brought to the Town Board to consider:
” A. A residential structure may be erected on any vacant non-conforming lot of record existing at the time this Law is enacted provided no front yard is reduced in size and no side yard is reduced to less than 50% of the requirement for the district in which it is located or 20 feet, whichever is greater, and a sewage disposal system meeting New York State standards, including well and septic isolation distances, can be placed on the lot should public facilities be unavailable. B. Accessory structures placed on non-conforming lots of record after the effective date of this law shall comply with Section 140-13 of this Law, Accessory Structures and Uses”
Whereas a Town Council member made the point that should someone want to erect a shed on such a property for storing tools to maintain the property, the word “vacant” would deny that lot owner the right to erect a residential structure so the word “vacant” was subsequently removed from the code change (rather than an accessory structure made an exception). The word residential (offered to differentiate from a new business use) was changed to principal structure as §140-42 in relevant part stipulates, “No change, addition, or expansion shall result in a more intensive category of use” which would disallow a business use supplanting a residential use.
Whereas discussing this application with our Town Attorney, it has been determined that the original intent remains intact so that § 140-43 applies to newly erected principal structures only and §140-42 C is the applicable section for this application.
Therefore, based upon facts and information obtained and reasons stated above, the Town of Rochester Zoning Board of Appeals, on this 21st day of March 2019, determines that Ms. Hulse must obtain an Area Variance as stipulated in §140-42 C.
Motion made by: Mr. Fornal
Motion seconded by: Mr. Fischer
Vote: Ayes: ¬¬¬¬¬¬¬ 5 Nays: 0 Abstain: 0 Absent: 0
Adopted: March 21st, 2019
Mr. Jankovitz wanted clarification on what he was or wasn’t allowed to do to Ms. Hulse’s structure.
Mr. Fornal stated he could restore it within the footprint of the existing structure but if he wanted to do construction outside of that, then that would require an area variance.
Mr. Jankovtiz stated it was still ambiguous as far as he was concerned and that the Code Enforcement officer should be clearer.
Chair Mallery explained that the Board wasn’t necessarily unsympathetic to their request, but that they had to follow the Code as it was interpreted.
Chair Mallery stated that he had a comment about the decision. He stated the statement from Paragraph 5-8, that there was no record that dealt with any of those statements made and therefore it would have to be Mr. Fornal’s testimony.
Mr. Fornal stated that for the record the statements made from paragraphs 5-8 were his recollections and institutionalized knowledge he and the Town Attorney had in regards to the meeting where #140-43 had been changed and where he and the Town Attorney had been present at to witness these changes to mentioned code.
Mr. Jankovitz asked if it would be another 62 day process if they did put an application for an area variance.
Mr. Fornal made the motion that if Ms. Hulse and Mr. Jankovitz did put the application in and paid all the fees prior to the report date for the legal notice then the Board could schedule the public hearing for the next month. Mr. Fischer seconded the motion.
All in Favor. Motion carried.
5 ayes, 0 nays, 0 abstentions, 0 absent
Ms. Enouen made the motion to schedule a Public Hearing for the April 18th, 2019 ZBA Regular meeting on the condition that the Board received the Area Variance Application and the fee for the mentioned application before the notices for the Public Hearing needed to be sent out. Mr. Fornal seconded the motion.
All in Favor. Motion carried.
5 ayes, 0 nays, 0 abstentions, 0 absent
OTHER MATTERS
There was a discussion among the Board about writing a letter to the Town Board in regards to reinstating the word “vacant” back into #140-43 and in regards to other sections of the Code that needed to be revisited and clarified.
Mr. Fornal made the motion to write a letter to the Town Board in regards to sections of the code needing clarification . Ms. Enouen seconded the motion.
All in Favor. Motion carried.
5 ayes, 0 nays, 0 abstentions, 0 absent
ACCEPTING THE MEETING MINUTES FROM FEBRUARY 21st, 2019:
Mr. Fornal made the motion to accept the minutes from the February 21st, 2019 regular meeting. Ms. Enouen seconded the motion.
Motion Carried.
4 ayes, 0 nays, 1 abstentions, 0 absent
APPROVING CORRECTED PROCEDURAL GUIDELINES:
Mr. Fornal made the motion to adopt the corrected ZBA Procedural Guidelines. Ms. Enouen seconded the motion.
All in Favor. Motion carried.
5 ayes, 0 nays, 0 abstentions, 0 absent
ADJOURNMENT
Mr. Fornal made the motion to adjourn the meeting at 7:42pm. Mr. Psaras seconded the motion.
All in Favor. Motion carried.
5 ayes, 0 nays, 0 abstentions, 0 absent
Respectfully submitted,
Brianna Tetro, Secretary
Accepted April 18th, 2019