ZBA Minutes – November 2014

ZONING BOARD OF APPEALS

TOWN OF ROCHESTER

ULSTER COUNTY

ACCORD, NEW YORK

(845) 626-2434

torpbzba@hvc.rr.com

 

MINUTES of November 20, 2014 the Town of Rochester Zoning Board of Appeals, held at the Town of Town of Rochester Town Hall, Accord, NY.

 

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

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Pledge to the Flag.

 

PRESENT:                                                                                        ABSENT:                                                              Beatrice Haugen- De Puy, Chairperson

                Cliff Mallery, Vice Chair

Charlie Fischer

Steven Fornal

Troy Dunn

 

Also present:

John Dawson, III, Alternate. Rebecca Paddock Stange, Secretary.

 

PRE-APPLICATION PRESENTATION

Boyd Brower, 5’ Area Variance for front yard setback, 10 Via Pioli, Kerhonkson, Tax Map #60.1-3-63.200, R-2 District

 

Mr. & Mrs. Brower were present on behalf of their application. Mr. Brower noted that they live on a dead end single lane road and are looking to put a barn on their property. Right now the area is used for parking. He will need to move an existing building back and will destroy it once the barn is built. It’s a 34’ x 34’ shed that is there now and falling apart. The barn will be a pole barn. He noted that his property is on either side of Via Pioli Road and there is runoff on his property from Schroon Hill Road and this is why this is the only place to put the barn. He submitted pictures of his property to the Board showing the layout and the water problems that he has. The barn will be 40’ x 48’. This is unique because Via Pioli goes through his property and splits it into about one acre on one side and an acre and ¾ on the other side of it. The shed to the side is 25’ x 12’.

 

Chairperson Haugen De Puy read 140-12C. Front Yard Determination as follows:

“ Front yard determination. Front yards shall be measured from the edge of the road right-of-way, which shall be assumed to be 50 feet in width in all cases where unknown. The assumed edge of right-of-way in such instances shall be measured from the centerline of pavement and established at a distance of 25 feet from such

centerline.”

 

Mr. Fornal noted that the front yard setback goes 25’ from the center as we don’t know the width of the right of way, so it is assumed to be 50’. So, that’s 35’ back from the 25’ measurement from the center of the road—and that gives him a 60’ setback from the center of the road, so this doesn’t seem like it should be a 5’ Area Variance, but rather a 22’ Area Variance. He thinks the CEO was measuring from the edge of the actual road.

 

Board members discussed possibly turning the structure.

 

Members agreed that it wouldn’t make a substantial difference.

 

Mr. Brower noted that originally he was going to do a car port and then changed his mind and a pole barn suited their needs better.

 

Mrs. Brower noted that originally when they were going to build a car port, they didn’t know that they needed to get a building permit. Then they reassessed their needs and decided a pole barn made more sense. They are members of 4-H.

 

Mr. Fornal noted that the Code says that if you are in 4-H, permits aren’t required.

 

Mr. Brower noted that Mr. Davis originally said this when they first spoke, and then when he started building the structure he was told that wasn’t the case.

 

Chairperson Haugen De Puy read Section 140-14H:

“Notwithstanding the limitations set forth in this article, there shall be no permit required, nor limitation imposed, upon individuals involved in 4-H project(s), provided that proof of 4-H endorsement thereto or membership thereof is submitted to the Code Enforcement Officer.”

 

Mr. Fornal noted that this says “No permits”. This is for their own use for 4-H according to the applicants. This might be easier for them as the way he views the setback variance, they are looking at +/-22’ which is near a 50% reduction.

 

Mr. Dunn noted that the highway law in NYS is very interesting. He believes that the 50’ width comes from that. Unless a width is described, it is 3 rods. A rod is 16 ½’—that’s 49.5’.

 

Mr. Mallery noted that we have setbacks so that we don’t take away or infringe upon the rights of our neighbors. In this case, his neighbor is himself.

 

Mr. Dunn noted that it was also to protect Mr. Kelder, Highway Superintendent because of snow plowing. But in this case, Mr. Brower’s porch on his house is closer to the road than the proposed barn. Is it practical to claim Via Pioli under these setbacks?

 

Mr. Fornal noted that it’s also because the Town reserves the right to expand roads in the future, but the Town isn’t going to expand the road 30’.

 

Mr. Mallery noted that it is unlikely that they would extend the road. It’s a dead end with an airport at the end.

 

Mr. Brower noted that originally it was probably just a driveway.

 

Mr. Dunn noted that this was probably why there was no description of the road or right of way width because it became a road by use.

 

Chairperson Haugen De Puy noted that today when the Town takes over a road, the road needs to be brought up to Town specs.

 

Mr. Dunn noted that this road was already taken over prior to those regulations.

 

Mr. Mallery questioned if they granted the variance, would this create a problem for the Highway Dept. for plowing or the Fire Dept. for fire access?

 

Mr. Fornal noted that they just learned from the Flying Change Farms application that 30’ was required around the structure for fire safety, which they had.

 

Mr. Brower noted that he couldn’t put the barn anywhere else.

 

Mr. Fornal noted that the Board needed to make sure that they focused on the property being split by the road in terms of future precedent.

 

(Chairperson Haugen De Puy welcomed the arrival of high school students to the audience and explained that we were holding an informal meeting, speaking with applicants who were trying to build a barn, but didn’t meet the required laws for how far back it needed to in the front yard. They were discussing ideas with the applicant, discussing the best way to move forward. The ZBA was a 5 member Board, each member serving a 5 year term.)

 

Mr. Mallery questioned if this property was one lot?

 

Mr. Brower answered that it was. +/- 1 acre on one side and +/-2 acres on the other side of Via Pioli.

 

At this time Chairperson Haugen De Puy read the balancing test that the Board is required to use when reviewing Area Variances found in 140-66C. of the Zoning Ordinance:

“Area variances.

(1) The Zoning Board of Appeals shall have the power, upon an appeal from a decision or determination of the administrative officials charged with the enforcement of this law, to grant area variances as defined herein.

(2) In making its determination, the Zoning Board of Appeals shall take into consideration the benefit to the applicant if the variance is granted, as weighed against the detriment to the health, safety and welfare of the neighborhood or community by such grant. In making such determination the Board of Appeals shall also consider:(a) 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;

(b) whether the benefit sought by the applicant can be achieved by some method, feasible for the applicant to pursue, other than an area variance;

(c) whether the requested area variance is substantial;

(d) whether the proposed variance will have an adverse effect or impact on the physical or environmental conditions in the neighborhood or district; and

(e) whether the alleged difficulty was self-created, which consideration shall be relevant to the decision of the Zoning Board of Appeals, but shall not necessarily preclude the granting of the area variance.

(f) The Zoning Board of Appeals, in the granting of area variances, shall grant the minimum variance that it shall deem necessary and adequate and at the same time preserve and protect the character of the neighborhood and the health, safety and welfare of the community.”

Chairperson Haugen De Puy also noted that when granting Area Variances, the ZBA must grant the minimum variance possible for the applicant to achieve their goal.

In moving forward, the Board discussed seeking out the following items:

  • Proof of 4-H Membership
  • Clarification from Mr. Davis, CEO as to the amount of variance required
  • Comments from Mr. Kelder, Highway Superintendent regarding snow removal and                     maintenance of Via Pioli Road in relation to the location of the proposed barn, noting that the home on the other side of the road owned by the applicant is already closer than the proposed barn.
  • Clarification from the Attorney for the Town regarding 140-14H, and whether or not permits are not required for just animals or for buildings as well with proof of 4-H Membership.

 

The applicants were asked about snow removal and the proximity of their house to Via Pioli. They replied that it’s loud, but the snow doesn’t reach their house.

 

Chairperson Haugen De Puy motioned to schedule the Public Hearing for December 18, 2014. Seconded by Mr. Fornal. No discussion.

Vote:

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

Dunn-                                                 Yes                  Fornal-                                   Yes

Fischer –                                             Yes

 

ACTION ON MINUTES

Mr. Fornal motioned to accept the September 2014 Minutes. Seconded by Mr. Fischer. No discussion.

Vote:

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

Dunn-                                                 Yes                  Fornal-                                   Yes

Fischer –                                             Yes

 

OTHER MATTERS

Mr. Fornal attended training on case law update and found out some very interesting facts. He gave everyone a copy of the material he received from the training and encouraged everyone to read it as it touched upon things that were very pertinent to the Town.

 

MOTION TO ADJOURN

Mr. Dunn motioned to adjourn the meeting seconded by Chairperson Haugen De Puy. No discussion. All Members present in favor.

 

Since there was no further business, at 7:45PM Chairperson Haugen De Puy adjourned the meeting.

 

 

Respectfully submitted,

 

Rebecca Paddock Stange, Secretary