ZBA Minutes – October 2019

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MINUTES of the October 17th, 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.

Cliff Mallery, Chair
Steven Fornal, Vice Chair
Charles Fischer
Bruce Psaras
Erin Enouen

ALSO PRESENT: William Barringer, Alternate. Brianna Tetro, Secretary.

2019-06AV- Tardibuono, Martha
Area Variance
205 Rock Hill Rd./ SBL: 77.2-4-39.100/R-2 district
Proposed Use: 6’ Fence, road side for privacy
-Area Variance required: 140-13H(2): Any fencing shall not exceed a height of four feet when located in front yard setback.

Ms. Martha Tardibuono and Ms. Nancy Tardibuono were present on behalf of the application.

Chair Mallery explained what the application was all about for those who were not in attendance the previous month.

Chair Mallery also noted that a letter had been sent to the Highway Department for their thoughts and comments in regards to the fence impacting and/or impeding driving conditions on the road. He said the Deputy Highway Superintendent, Jeff Frey, had responded there would be no impact. Chair Mallery stated that the applicant had also provided the Board with more photographs of their property.

Martha Tardibuono reiterated that the fence was not going to be the entire length of the property, just roadside, because further down the length of the property there was quite a bit of growth.

Ms Enouen said they had spoke about the height of the fence a lot at the previous month’s meeting and when she looked at the information that had been provided by the company doing the fence, it seemed as though they were measuring the height from the road and not the ground and in some places the fence would be 11 feet high.

Martha Tardibuono said the fence would never be over 6 ft.

Ms. Enouen said if measured from the ground, the height would be over 6 ft.

Nancy Tardibuono explained there would be space from the ground, about 12 inches, but the fence would never exceed 6 ft.

Mr. Psaras explained that the fence would be attached to two pickets on either side so the boards going across would start 12 inches from the ground or 24 inches from the ground but the height of the pole would vary so it could accommodate the fence.

Ms. Enouen said in the document from the fencing company, it said there would be a 3-5 ft gap but she asked would the post exceed 6 ft or just the paneling. She said her understanding was it would be the height of the paneling that the Board would be taking in consideration.

Nancy Tardibuono said it would follow however the road went but as far as the actual height of the fence went, it would not be over 6 ft.

Mr. Prasas explained the distance from the ground to the top of the panel would sometimes be 6 ft, sometimes 7 ft, sometimes 8 ft as the grade of the ground varied. \

Ms. Enouen said in a previous application the Board talked about the height of the fence being what the height was from the ground to the top and that meant in some places the fence would be up to 11 ft.

Mr. Fornal said if the filled in the fence, it would be a 11 ft fence, but it was just a 6 ft panel so it would not exceed 6 ft. And the purpose of the fence was to block the light coming from the road, so from the surface of the road it would measure 6 ft.

Mr. Psaras stated the screen height from the ground in some cases would be 6 ft and in some cases it would be as high as 11 ft.

The Board discussed the actual measurement of the fence as in was it measured from the road or from the ground to the top.

Mr. Fornal said they had requested the fence for the light intrusion and that was what the variance application was in front of the Board for.

Chair Mallery said his understanding was from the ground to the top of the fence was how the fence height was measured and it made a difference between what type of variance would be granted.

Mr. Fornal said to address the light intrusion issue, the fence was measured from the road.

Ms. Enouen said she understood what the applicant was doing but that the Board needed to define what their variance was.

Chair Mallery agreed with Ms. Enouen and said was it a 6 ft fence or an 11 ft fence.

Nancy Tardibuono said it was a 6 ft fence but the posts would be higher in some areas.

Ms. Enouen stated the Board had a way that they should be interpreting the variance and she wanted to make sure that they were doing it properly and that she understood for the applicant’s purposes the fence was 6 ft but for the Board’s purposes it was her understanding that they should measure from the ground to the top where the fence stopped, not from the road.

Mr. Fornal said 140-13(H) did not say anything about how the height of a fence was measured but it did mention something about having an adequate blockade and the way he had looked at it in order to meet the applicant’s legitimate complaint it would be measured from road height to address the light intrusion.

The Board discussed with the applicant, other options for a fence without needing a variance from the Board. There was disagreement among the Board of what the actual variance would be.

Chair Mallery said there were essentially two questions 1) What is the front yard? And 2) what is the side yard and what kind of variance was the Board looking at, and that was what the Board had to agree on.

Nancy Tardibuono pointed out to the Board on her provided photos where they wanted to put the fence and that they wanted the fence to be 6 ft measured from the road level.

There was discussion among the Board on where the front of the yard was.

Martha Tardibuono said they were looking to put up the fence for two reasons 1) The light intrusion and privacy issues and 2) The cars coming onto their property from the road.

Nancy Tardibuono said the cars came on their yard because they took the corner too fast and recently a Mini Cooper had driven off to the road onto their property and needed to be towed.

Chair Mallery asked if they felt that the fence would keep the cars and people off the property.

Martha Tardibuno said yes, it was their only solution.

Mr. Fornal said Martha Tardibuono had been talking about needing a fence to the caliber in discussion for years as this had been a long time issue.

Ms. Enouen retierated the need to know where exactly the measurement of the fence was coming from as in previous applications it had not been measured from the road and the Board needed to be consistent.

Chair Mallery questioned if a 6 ft fence would solve the issues that the applicant had stated they needed addressed.

Mr. Fornal said the fence would not go all the way down the property line, where there was a curve at a downward grade, but if the measurements were from the ground to the top, it would make the fence 11 ft high and that just wouldn’t be possible to grant a variance.

The Board wanted to hear comments from the public.

Chair Mallery opened the public hearing.

Mr. Richard Newman stated he lived at 181 Rock Hill Rd and that he was retired journalist and his wife Marlene and himself were the Tardibuono’s nextdoor neighbors and Rock Hill Rd were their full time, year round residence. He said he had no problem with the height of the proposed fence described in the application, but he was very concerned that fence would be used as yet another back drop or billboard upon which Mrs. Tardibuono would add to the offensive signage that had been directed that year at her neighbors and visitors, signage that was not in keeping with the character of the neighbor and that was frankly was scaring people in light of the frequent and loud target shooting with military styled firearms that they heard far too often. He said the very unusual, high standing, mesh fence that had been erected in recent weeks and faced the road had about a dozen severely worded signs on it that said things such as: “No Trespassing and you are under video surveillance and don’t let your dog poop here .” and in his opinion it was just over the top, in your face, grandstanding that made people uncomfortable. He stated he and his wife also had curious visitors from the Bungalow colonies that wandered onto their property but they only had 2, 2 in four years, and about the signs he said, one or two would have made the point, not a dozen. Mr. Newman said his concern with the new fence could be even worse. He explained that earlier in the year, the Tardibuonos had erected a very unattractive, 4×8 ft unfinished plywood, orange spray painted graffiti styled, no trespassing sign about 10 yards from his driveway, right where he could not miss it going in and out, and he didn’t know why. He said he was glad to hear she had finally removed the sign, that day, and he wondered if she had put the sign there because he once put his garbage cans on her side of the property lines on pick up day and he admitted it was “his bad” and it wouldn’t happen again and he apologized for being inconsiderate. Mr. Newman said unfortunately, the proposed fence would not shield him from the ridiculous amount of noise coming from the Tardibuonos weekend militia firing range, which regularly disturbed all of the neighbors’ peace and tranquility. He stated in the past, when he complained because he didn’t like all the noise, the Tardibuonos responded with getting more ammunition, going up from 200 rounds/hour to 300 rounds/hour so he had stopped complaining and had taken his own guns out of storage, for self-defense. He said he was a Vietnam era veteran and he had guns too and like others on the road he was tired, frustrated, and sad at the Tardibuonos unwarranted phone calls and behaviors, and they respectfully requested that the ZBA or other appropriate officials, took measure to make it so if her proposed fence was approved, it would not be used as a billboard to post more antagonistic and threatening signs under the guise of free speech. He concluded that all the people on Rock Hill Rd deserved to have peace and tranquility in their homes and on their properties.

Chair Mallery commented that the application was for a variance between a 4 ft fence and a 6 ft fence, if the Tardibuono wanted to build a 4 ft fence they would not be in front of the ZBA and they could also put signs on it and the ZBA’s issue was the height of the fence, the 2 ft variance. He said weather the ZBA granted the application or not it wouldn’t change with what Mr. Newman said, because they could put signs on a 4 ft fence and they wouldn’t need to be in front of the Board for a variance and they could make all the noise they wanted with a 4 ft fence and they wouldn’t need a variance, and he just wanted Mr Newman and the other members of the public, to understand the ZBA’s role.

Mr. Newman said he did but he didn’t know if the Tardibuonos could put any messages they wanted up.

Chair Mallery said that was different story weather it was a 4 ft fence or a 6 ft fence, the same rules applied on what could or could not be put on the fence but the ZBA was there to decide a variance, put he appreciated Mr. Newman’s comments and they were noted.

There were no other comments from the public.

Mr. Fornal made the motion to close the public hearing. Mr. Fischer seconded the motion.
All in Favor. Motion Carried.
5 ayes, 0 nays, 0 absent, 0 abstentions.

The Board had a discussion again about the measurement of the fence height as it affected if there would be a 2 ft (a 6ft high fence) or essentially a 7 ft variance. (an 11 ft high fence) There was a lot of disagreement on how the height was measured, either from the ground to the top or from the road.

Chair Mallery asked Martha Tardibuono if they would consider putting a berm in so the fence would not have space underneath it.

Nancy Tardibuono said they did not want a berm, they wanted a fence, a berm would cost more money and they already planted 25 pine trees with only 15 left due to the amount of water.

Mr. Fornal said that the precedence that would be set with the application would be for a purpose, I.e.- the light intrusion and privacy issue, of the contour of the property as opposed to allowing or denying based on 11 ft.

Chair Mallery said it seemed the most common form of measurement was from the ground to the top.

Nancy Tardibuono stated that she had been told by every fence company they sought an estimate from, had said they measured from the road height. She stated Jerry Davis, the Town of Rochester Code Enforcement Officer, had told her thats how it was measured.

Mr. Fornal said the common practice was measuring from the ground to the top.

Ms. Enouen stated she wanted to hear from Jerry Davis how he interpreted the height of the fence.

Chair Mallery said he agreed and he said he wanted to know not only what Jerry used as his basis, but why he measures the way he does.

Mr. Fornal said the Board could ask Jerry, but he knew Jerry measured from the ground up, but they were being asked to vary the law for a specific purpose- the privacy and light intrusion issue- and the ZBA could do that. He said that would become precedence and if they granted it they had two ways to go, almost a 300% variance or above elevation because of the particular circumstance, otherwise it would need to be denied.

Nancy Tardibuono still argued Jerry Davis had told her it was measured from the road.

Mr. Fornal said he didn’t believe that Jerry had said that was how the fence was measured.

Nancy Tardibuono wanted to know how they were getting 300% variance.

Mr. Fornal said a 4 ft fence to an 11 ft fence was just about 300% and that was a large variance.

Mr. Fornal made the motion to keep the public hearing open, with the applicant’s consent, until the November 21st, 2019 meeting. Ms. Enouen seconded the motion.
All in Favor. Motion Carried.
5 ayes, 0 nays, 0 absent, 0 abstentions.

Mr. Fornal made the motion to have the Chairman to write a letter to Jerry Davis requesting his determination on how a fence is measured, did he measure from the ground to the road, and if so why? Ms. Enouen seconded the motion.
All in Favor. Motion Carried.
5 ayes, 0 nays, 0 absent, 0 abstentions.

Chair Mallery said they would make it clear in the letter that it was a property with a rolling contour with reference to their particular application.

There were no other questions or comments from the Board.

Mr. Fornal made the motion to accept the minutes from the September19th, 2019 Regular Meeting. Ms. Enouen seconded the motion. Chair Mallery abstained.
Motion Carried.
4 ayes, 0 nays, 0 absent, 1 abstentions.


Mr. Fornal made the motion to adjourn the meeting at 7:55pm. Mr. Fischer seconded the motion.
All in Favor. Motion Carried.
5 ayes, 0 nays, 0 absent, 0 abstentions.

Respectfully Submitted,

Brianna Tetro, Secretary
Accepted: November 21st, 2019