ZONING BOARD OF APPEALS
TOWN OF ROCHESTER
ULSTER COUNTY
ACCORD, NEW YORK
(845) 626-2434
btetro@townofrochester.ny.gov

MINUTES of the May 21st, 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 Steve Fornal
Bruce Psaras, Vice Chair Erin Enouen
Charlie Fischer

ALSO PRESENT: Mary Lou Christiana, Town Attorney, William Barringer, Alternate. Brianna Tetro, Secretary. Mike Baden, Town Supervisor and meeting host.

APPLICATIONS:
*Chair Mallery noted that Alternate Mr. Barringer would be joining the discussion as they were down two members.

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.

Mr. Stecyk said they were now seeking a variance to building the deck closer to the home as the state fire code required a floating deck to be 12 ft away from the house.

Chair Mallery said he had spoken to Jerry Davis, Code Enforcement Officer, and had discussed having a ramp connecting the deck to the home and if they did that, would a variance be required and he asked the applicant if they had discussed something like this with Mr. Davis.

Mr. Steyck answered he had not as according to what he believed Mr. Davis had explained to him was that it would have to be a 12 ft ramp to be from the setback to the ramp. He said if it was closer than that it would be considered part of the structure.

Chair Mallery stated he had asked Mr. Davis if the deck abutted the house, would that be an issue?

Attorney Christiana stated if there was a state fire code requirement, the ZBA could not grant a variance.

Chair Mallery stated it was fire code, not state code.

Mr. Psaras stated it was under 140-13.

Chair Mallery said it was his understanding that if there was a ramp or a breeze attaching the deck to the house, then there was not an issue.

Mr. Steyck said there would still be the set back issue.

Mr. Steyck stated his case for the variance and said they weren’t conflicting with the character of the neighborhood, in fact no one would see the deck. He said they had modified the application and still they could not make it work and they didn’t see why they could not obtain a variance.

Supervisor Baden and Attorney Christiana found the portion in the Town’s code in reference to fire code and it was not state code.

The Board discussed the application further.

Chair Mallery stated the application could be set for public hearing.

Attorney Christiana suggested that when the public hearing was set, it would be a good idea to send it to the fire department for their comments.

Chair Mallery asked the secretary to send it to the fire department.

Mr. Fischer made the motion to set the application for public hearing at the June 18th, 2020 meeting. Mr. Barringer seconded the motion.
ROLL CALL:
Chair Mallery- Yes Mr. Fischer- Yes
Mr. Psaras- Yes Mr. Barringer- Yes
All in Favor. Motion Carried.
4 ayes, 0 nays, 0 absent, 0 abstentions, 2 vacancies

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. Adam Paddock, Property Owner and Mr. Brandon Smith, Borrego Solar, were present on behalf of the application.

Mr. Smith refreshed the Board about what the application was all about.

Chair Mallery opened the public hearing.

No one from the public spoke.

Chair Mallery noted they had received a letter from Mr. Steve Fornal in regards to the application and asked the Board members to review it.

Mr. Psaras made the motion to close the public hearing. Mr. Barringer seconded the motion.
ROLL CALL:
Chair Mallery- Yes Mr. Fischer- Yes
Mr. Psaras- Yes Mr. Barringer- Yes
All in Favor. Motion Carried.
4 ayes, 0 nays, 0 absent, 0 abstentions, 2 vacancies

Chair Mallery stated the public hearing was now closed and they would reach a decision the following month.

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 and Mr. Ben Gailey, attorney.

Mr. Gailey stated he had read the very lengthy comments provided by those opposed to the studio and found that a lot of what was said in the public comments were moot as the issues raised had been addressed by the applicant. He stated he did agree that the variance was substantial but not an impossible request and the increase in size does not increase determent. He said the Board needed to look at things based on case law and not just that people were opposed to the studio and all signs pointed to granting the variance.

Chair Mallery opened the public hearing.

Mr. Jesse Marcus stated he lived at 86 Catalpa Lane and had spoken at the last meeting. He said not much had changed in the past month and as lane president for over 2 years he had complaints from others on the road. He stated there was traffic and construction all the time on the road due to the Hoots’ and it wasn’t just those who lived on the road that had complained to him but also others from roads around the area. He said they had all purchased homes on the road due to the R2 zoning and there were a lot of concerns about the traffic and the noise as they wanted their peace and quiet.

Ms. Emily Svenson, representing several neighbors, said the Board should not grant the area variance because it was not a Home Occupation and there were several key points. She reiterated it was not a Home Occupation and said in a letter she had provided to the Board on April 16th, 2020 it did not meet the criteria. She said the size of the studio did have an impact on the neighbors as it would increase traffic and noise due to having more groups going to the studio to perform. She stated the intended use, as stated by the applicant and seen in present evidence, that there were going to be outside bands coming to record and that there was evidence of noise being able to be heard by the neighbors as shown in sound study. Ms. Svenson argued this all could have been achieved without having to build something so large and that a professional sign had recently been installed on the Hoots’ property stating where the studio was and the need for a variance was entirely self created. She stated again that it was not a home occupation and a variance should not be granted.

Ms. Rovika Rajkishun and Mr. David Austerweil reiterated what they had spoke about at the previous month’s meeting. Ms. Rajkishun said not one or two people were opposed to the Hoots’ obtaining an area variance, but twenty-three neighbors opposed. She said people had to get organized and get collectively together in order to hire an attorney (Ms. Svenson). She stated there would be a decrease in property values if this variance was granted and there was a lot of concern about the traffic and the noise. She said people had invested their entire savings into buying homes in the area for the peace and quiet. She said there had been unnecessary construction happening during the pandemic and how was that allowed and how would they act once it was over? Ms. Rajkishun stated that they did not trust the Hoots’ because they never stick to any order and it had been difficult on everyone’s lives since the Hoots’ had moved onto the road, it was not insignificant. She asked the ZBA how they would feel living with the same circumstances?

Mr. Steve Tiffany stated he was the next door neighbor to the Hoots’. He said Catalpa Lane was a dead end road and that was why most people lived there and the Hoots’ lived at the very end of the road, so anything that went down to their home would need to come back out again and go past everyone else homes. He stated the applicant’s intention of having a private commercial studio was an oxymoron because how can something be both private and commercial. He said he did not want a commercial business on the road and that everyone lived there because it was a private dead end road. He said the Town did not uphold the zoning laws and if something was zoned residential it should stay residential. He concluded that there should not even be a hearing as everyone had been disturbed.

Mr. Gailey said that the comments being said about the Hoots’ were offensive. He said that the traffic had been bad during construction but that since the building was completed and construction was over, they could not worry about future traffic and visitors. He stated they could not project into the future and that the Hoots’ had complied with the laws in the Town. He said the issues of traffic and noise had been addressed and were very clear that the building would not be commercial and that the noise had been explained in detail and was why the building had been made the size it was. Mr. Gailey said a Home Occupation was a permitted use. He addressed the new sign and the protests against it and stated the sign was fine and there was no evidence of it effecting the neighbors.

Mrs. Hoots stated the previous owner of their home was only there on the weekends and summer and that’s what the neighbors were use to and wanted. She stated that she understood the complaints and they had tried to mitigate them as best they could. She said they paid for speed zone signs among other items to accommodate the road. She said it was a private road but that didn’t mean the people who lived on it got to control everything that happened. She argued that she and her husband worked from home but if they had jobs they needed to travel to every day then the traffic would be increased from them leaving and coming back. She said the neighbors who have not spoke up are concerned because there had been rumors going around and it was very frustrating. She said the neighbors couldn’t bully them just because they didn’t like what she and her husband do on their own property. Mrs. Hoots stated she had spoken to a real estate agent who said the studio would have no impact on home values. She argued that the studio would operate just as one would if it was 500 sq ft but that it had been made 784 sq ft to accommodate instruments and sound and it would not have worked if it had been made smaller. She noted the recent trucks that had been delivering to their home was for gardens and that the neighbors were always watching and reporting what was happening at their home, and that was a determent to her and Mr. Hoots lives and should not be condoned by the ZBA.

Chair Mallery stated the variance would run with the land and if the Board granted it, what was to say someone would not buy it and use it for larger bands, or even an orchestra.

Mr. Hoots responded that it was not his intention to record large bands, maybe six people at the most. He said there was no room to accommodate an orchestra or anything to that affect.

Mrs. Hoots noted that Mr. Jesse Marcus had,for years, ran a commerical business om the road that employed one other person and no one complained or gave him a hard time about it. She also noted that the attorney, Ms. Svenson was hired by only 3 homeowners, not all 23 opposed neighbors.

Ms. Svenson stated that the letters of support for the Hoots’ came from people who did not live on Catalpa Lane and that they were character witnesses.

Mr. Marcus stated no one wanted conflict among neighbors and even though it was technically only three homes bringing forth the appeal and who hired the attorney, it still was an issue for most of the residents living on the road. He said they were not bullies they just did not want the studio and they were dealing with construction vehicles going up the road presently, as he saw a Williams truck go to the Hoots’ home the other day. He explained that the people who owned the Hoots’ home previously used it as a summer home and were quiet and respectful neighbors.
Ms. Rajkishun said people did have voices and they mattered. She asked the Board to not think they were just riled up.

Mr. Barringer asked Mr. And Mrs. Hoots what year they bought their home.

Mrs. Hoots answered 2016.

Mr. Barringer asked when they bought the home, did they plan on building the studio?

Mr. Hoots said they did.

There was a discussion between the Board and the applicants.

Mr. Fischer asked how many homes were on the road.

Mr. Marcus, as the Catalpa Lane road association president, answered 11.

Mr. Gailey stated everything that needed to be addressed and said by the applicants and neighbors had been said. He added that they had not heard about anything that was determinantal to the neighbors aside from the fact that they didn’t like the studio and their fears of traffic and noise increase were only that, fears, and they were unfounded. He said the Hoots had made it very clear that there would be no increase of traffic or noise.

Ms. Svenson argued that they obviously couldn’t measure the traffic and noise for something that hadn’t started yet but it was clear that it was inevitable as the intended use included outside people coming to use the studio.

Mr. Steve Fornal stated he wanted to take exception to Mr. Gailey’s statement that there was no evidence of determent to the neighborhood due to noise and traffic and the evidence had been submitted by Allison Hoots herself, and the noise per the data showed 9 dba above the ambient level and the code said detectable and 9 dba was certainly detectable. He said when it came to the traffic increase, there was an increase when it came to residential use and that was a fact. He stated the first go around when the Hoots’ had first come in front of the ZBA months ago, it was stated time and time again that they were only going to be using the studio for personal use only and the ZBA had made it specific that if at a later date they wanted to turn the studio into a commercial use that it would not go over well. Mr. Fornal stated there was an elephant in the room and the fact was this was a prohibited use in an R2 zoned area that was in the code and at no time was a home occupation able to usurp the prohibition and that was clear in the Town’s schedule of uses and he wanted to make those points very clear.

Chair Mallery asked if there was anyone else who wished to speak.

Mr. Gailey said he wanted to just make a statement in response to Mr. Fornal and that was a home occupation class II was a permitted use in the R2 zoning district and there was no prohibition.

There was a discussion in regards to closing the public hearing.
Mr. Fischer made the motion to keep the public hearing open for one week to allow Ms. Svenson to respond to the May 13th, 2020 letter from Mr. Manzella and allow a further 3 days to allow Mr. Gailey to respond to Ms. Svenson for a total of 10 days in which then the hearing would be closed. Mr. Psaras seconded the motion.
ROLL CALL:
Chair Mallery- Yes Mr. Fischer- Yes
Mr. Psaras- Yes Mr. Barringer- No
Motion Carried.
3cayes, 1 nays, 0 absent, 0 abstentions, 2 vacancies.

Mrs. Hoots stated she wanted to say one quick thing and that was what Mr. Hoots was proposing was to be an artist in an artist studio and it wasn’t some massive business undertaking and he just wanted to make art and collaborate with his friends and occasionally receive money for his services in that space, that was it. She stated they were sorry that it had become a terrifying thing to the neighbors and they had been as responsive as they could be.

Chair Mallery said the Board would take everything under advisement and then would deliberate and make a determination at the following month’s meeting.

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 was present on behalf of the appellants.

Ms. Svenson explained what the appeal was about. She stated why they did not believe the purposed use of a Home Occupation Class II would be allowed and why they were opposed to it. She said she had written a letter and submitted it that day and reiterated key points of the letter along with evidence pertaining to the appeal. She cited the Mason vs. Dept. Of Buildings of City of New York specifically in her letter.

The Board discussed the application. As the previous application was in direct correlation with the appeal much of what was said were reiterations of discussions brought up in the previous application.

Mr. Psaras brought up that in the home occupation class II definition it stated there could be no more than one employee on site, unless it was a family member, and if Mr. Hoots’ band members were also using the studio, then they would be considered employees and it would be more than one.

Mr. Barringer argued only if they were getting paid.

Mr. Barringer made the motion to open the public hearing. Mr. Fischer seconded the motion.
ROLL CALL:
Chair Mallery- Yes Mr. Fischer- Yes
Mr. Psaras- Yes Mr. Barringer- Yes
All in Favor. Motion Carried.
4 ayes, 0 nays, 0 absent, 0 abstentions, 2 vacancies.

Mr. Gailey stated that Mr. Hoots had already made it very clear the nature of the home occupation and Ms. Svenson had blatantly mis-characterized what Mr. Hoots had said. He stated that Mr. Hoots will not have any employees because the other band members or collaborators that may come in to work with Mr. Hoots were not employees and a class II home occupation allows the provision of services and if Mr. Hoots was acting as a producer for someone that would be the services in which he was providing and it couldn’t be limited to himself, alone, making music. He said when it came to noise, even thought it was a public hearing, he asked the Board to take in consideration what had been said in the previous application review and noted that the noise study had purposely been done with high levels of noise in the studio to measure how the noise would sound at the property line and even with those high levels there was minimal increase of noise and that there was the supplemental letter from the sound engineer that said when the studio is regularly operating there will be no increase of sound at the property lines. He argued that the Mason case wasn’t a relative argument because in that case there were employees, in Mr. Hoots’ case he was just providing services.

Ms. Svenson said she wanted to have the Board refer to the February 6th, 2020 letter from Mrs. Hoots in support of the area variance where it had been stated Mr. Hoots was going to be using the studio for projects where he would be compensated as solely a producer.

Mr. Hoots stated that characterizing the word producer as to not meaning artist was narrowing the concept of the term and it was a spectrum of services but his type of producing was very collaborative and part of the creative process.

Mrs. Hoots mentioned that they felt that the home occupation was drafted by the zoning law in a very clear way but stated if that was found to not be the case and it was found to be ambiguous in anyway, that case law had demonstrated that any ambiguity in the law must be resolved against the party enforcing the law and in favor of the home owner. She said they believed they had met every aspect of the criteria which was why they took so long to apply so they could sound proof so they could demonstrate that they met all the aspects, they took a risk and that was on them, but ultimately if the zoning law was ambiguous then they would respectively ask that the zoning board looked to case law and that they find in favor of the home owner.

Ms. Svenson argued that it was not ambiguous it was in the definition of home occupation and that was what they were relying on.

Mr. Gailey stated they had first hand evidence and testimony from the Hoots regarding the nature of Mr. Hoots’ home occupation and on the other hand there was absolutely nothing from the appellants and Ms. Svenson other than claims of what may happen and no knowledge what so ever and they were mostly just falsehoods and following up with what Mrs. Hoots said about the definition of the home occupation, he believed they met them and would comply with them and if those criteria were actually violated as opposed to just the speculation of the appellant, then the code enforcement officer will enforce against them, as it should be.

Ms. Svenson stated her clients had no way of knowing what was going on inside someone’s home after it was happening, what they were relying on was all the documentations the applicants had provided to the Board describing their intended use.

Chair Mallery asked Ms. Svenson if they did close the public hearing, would she have liked the same 7 days as there had been in the prior application, to respond.

Ms. Svenson said yes, as she wanted to answer for both the public hearings.

Chair Mallery made the motion to keep the public hearing open for one week to allow Ms. Svenson to respond to the May 13th, 2020 letter from Mr. Manzella and allow a further 3 days to allow Mr. Gailey to respond to Ms. Svenson for a total of 10 days in which then the hearing would be closed. Mr. Psaras seconded the motion.
ROLL CALL:
Chair Mallery- Yes Mr. Fischer- Yes
Mr. Psaras- Yes Mr. Barringer- Yes
Motion Carried.
4 ayes, 0 nays, 0 absent, 0 abstentions, 2 vacancies.

Chair Mallery stated at the next meeting of June 18th, there would be deliberation and a decision.

There was no further discussion.

OTHER MATTERS:
-Accepting the regular meeting minutes of April 16th, 2020

Mr. Psaras made the motion to accept the minutes from the April 16th, 2020 regular meeting. Mr. Fischer seconded the motion. Chair Mallery abstained.
ROLL CALL:
Chair Mallery- Abstain Mr. Fischer- Yes
Mr. Psaras- Yes Mr. Barringer- Yes
Motion Carried.
3 ayes, 0 nays, 0 absent, 1 abstentions, 2 vacancies.

Mr. Barringer commented that he would like items submitted by applicants to be to the Board no later than a week before meetings, as a lot of applicants were submitting items either the day of or before meetings and it didn’t give them a lot of time to look everything over.

The Board discussed Mr. Barringer’s request and it was decide to table the matter until a later meeting.

ADJOURNMENT:

Chair Mallery made the motion to adjourn the meeting at 9:05pm. Mr. Barringer seconded the motion.
ROLL CALL:
Chair Mallery- Yes Mr. Fischer- Yes
Mr. Psaras- Yes Mr. Barringer- Yes
All in Favor. Motion Carried.

4 ayes, 0 nays, 0 absent, 0 abstentions, 2 vacancies.

Respectfully Submitted,

Brianna Tetro, Secretary
Accepted January 21st, 2021