ZONING BOARD OF APPEALS
TOWN OF ROCHESTER
ULSTER COUNTY
ACCORD, NEW YORK
(845) 626-2434
btetro@townofrochester.ny.gov
MINUTES of the May 16th, 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
Erin Enouen
Bruce Psaras
Charles Fischer
Also present:
William Barringer, Alternate. Brianna Tetro, Secretary.
CONTINUED APPLICATION/PUBLIC HEARING:
Kevin&Christine Sisson
Area Variance
192 Rochester Center Rd. Accord, NY 12404
68.3-2-33, .28 Acres
Proposed Use: An 18’x30’ metal garage.
Area Variance required. Does not meet required setbacks for side yard or front yard in an R-2 zoned district.
Mr. and Mrs. Sisson were present on behalf of the application.
Chair Mallery asked that Mr. and Mrs. Sisson explain what the application was all about.
Mr. Sisson stated that he had built an 18’x30’ metal garage on his property and he needed a variance for it.
Chair Mallery stated it was 540 sq ft garage and it was already in place and Mr. Sisson was seeking a variance for both the front yard and the side yard.
Mr. Sisson stated he was 14ft from the property line on the front yard and a 13 1/2 ft from the property line on the side yard.
Chair Mallery asked if their house sat behind where the garage was.
Mr. Sisson stated yes and the back of the house was maybe 14 or 15 ft from the property line.
Mrs. Sisson stated the property was inherited and this was all they were able to work with.
Mr. Fornal asked to explain what they meant about the property in terms of purchasing it.
Mr. Sisson stated it was just a quick deed over from Mrs. Sisson’s Uncle.
Mrs. Sisson stated the property had been in her family for over 100 years and it had just been handed down from generation to generation and they had just happened to be the next in line.
Mr. Fornal said the information he got was that the property was in their name in 2007 and then it went to the County and they got it back in 2015.
Mrs. Sisson said it first came in their possession in 2000 and they hadn’t made it legal until 2007.
Mr. Fornal asked why they had kept the 13 1/2 feet on the side as that was what Mr. Sisson had said he had left that space for him to park his travel trailer.
Mr. Sisson said that was where he had kept his 29ft. Travel trailer that was now at Mrs. Sisson’s Aunt’s home but that was where it went.
Mr. Psaras stated that looking at the Tax Map from Ulster County Parcel Viewer, it looked like there had been additions put on the home in 1997 and one was a 10×24 and one was a 12×20.
Mr. Sisson said yes those additions were put on.
Mr. Psaras asked if there had been any zoning regulations for set backs when those additions had been put on the house.
Mr. Sisson stated no he had drawn up the plans and then submitted them.
Mr. Psaras asked if the zoning was the same in 1997.
Mr. Fornal stated no.
Chair Mallery asked if there was a small structure on the side of the home.
Mr. Sisson said there was a small shed.
Chair Mallery opened the public hearing. No one from the public spoke.
Mr. Fornal made the motion to close the Public Hearing. Ms. Enouen seconded the motion.
All in Favor. Motion Carried.
5 ayes, 0 nays, 0 abstentions, 0 absent.
Chair Mallery stated that even though the building was already in place the ZBA had to look at it as if the garage wasn’t there and therefore the variance would have been denied either way. Chair Mallery further stated that if Mr. Sisson had come to the ZBA before the building was up they could have given him suggestions such as making the building smaller, that could have helped him gain a variance.
Mr. Sisson said they had no storage which is why they had decided to build a garage so large, he asked did it have to be 12×16 or could it be bigger?
Mr. Fornal stated it would have to be less than 200 sq ft to not need a side yard setback. He stated the side yard setback was huge at 66.75.
Mr. Sisson stated that would be less than half the size of the structure that he had and he had so many items packed In the garage he wouldn’t even know what to do with all the stuff if the garage was smaller.
Chair Mallery stated what was being dealt with was a structure that was already up and the discussion they were having was one that should have happened before Mr. Sisson built the garage.
Mr. Fornal stated if they allowed the variance in this instant, the precedence would be set and if they allow that then essentially there would be no zoning.
Mr. Sisson said the reason why he went as big as he did was because he had no storage.
Mr. Fornal said he understood his needs but they couldn’t use personal preference for what they had to do and they had to go by the Code and if they said that the Code was unfair for Mr. Sisson then they would have to say it was unfair for 1,247 other properties that were considered too small.
Ms. Enouen stated typically they look at a proposal before the structure was up and she knows that the Board would have been able to offer other suggestions to help Mr. Sisson and that the Board wouldn’t have to grant such a large variance. She further stated that the Board was sympathetic to all the non-conforming lots but she had to look at it as if the structure wasn’t already there and in that case they would not allow such a large variance.
Mr. Sisson stated they made a little more room in the driveway on the side yard.
Mr. Fornal said coming off the side it was 13 1/2 ft but Mr. Sisson would have to go 10-15 more feet. He also stated if Mr. Sisson downsized the building and could move it up and over where the travel trailer was parked- where Mr. Fornal also noted that the travel trailer parked in the front was not allowed in the Code either.
Mr. Sisson asked would that mean the travel trailer had to stay parked at Mrs. Sisson’s Aunt’s House?
Mrs. Sisson stated that it was in her Aunt’s front yard too and everything else in the Town of Rochester.
Mr. Fornal stated it was in violation weather it was being enforced or not.
Mr. Sisson asked what were the options to where they could move the Garage then.
Mr. Fornal said he’d have to take in the side or the back yard.
Mr. Sisson said that would be impossible as it was all hill.
Mr. Fornal said it was a very limited piece and that talked to the property itself and not the Code and in this case it was the property that was the problem and not the Code.
Mrs. Sisson asked if the Deputy Highway Superintendent said it wasn’t a hindrance and even though the Board asked him and he answered that it wasn’t an issue, it still didn’t mean anything.
Chair Mallery said it was something that they certainly took in consideration but there were five factors that they took in consideration when it came to granting an Area Variance and each one of those factors had different components to them and one of the compenants could be weather or not the structure pose an issue to traffic, as that was the reason for the front yard set back, would it make it difficult for the Town to plow and maintain the road, so what the Deputy Highway Superintendent said wasn’t irrelevant but it was just one factor.
Mr. Fornal stated there was a Code change that was in the works that would establish that Town roads would have to be measured 25 ft from the center for the Highway Right of Way.
Mrs. Sisson stated that most people who live on Rochester Center park on the road.
Mr. Fornal stated there were 38 properties that have road frontage and 4 that did not.
Chair Mallery stated that they weren’t here to judge others as they had the Sisson’s application and that was what they were dealing with.
Mrs. Sisson stated they had their application because she was served with papers because of someone who drove by and saw their garage but there were other properties with structures built in the front and they weren’t getting violations.
Chair Mallery stated that he didn’t know about the other properties and that was the Code Enforcement Officers job to find out if the structures pre-dated the current Zoning Code or if they had variances, but the Board wasn’t an investigated body they were one that considered applications and the Sisson’s application was the one they had and it may not sound fair but there was a process.
Mr. Fornal stated he suggested the Sisson’s write a letter to the Code Enforcement Office and point out all the other properties that had structures in the front.
Mrs. Sisson stated she didn’t want anyone else to have this problem.
Mr. Fornal stated if it didn’t set a precedence for others he may have agreed with the Sissons but since if the ZBA granted the Variance it would set a precedence.
Chair Mallery stated if they gave the Variance to the Sissons then they would have to give it to everyone else and what they had to do as a Board was make a determination if the facts and statements in regards to the particular application in front of them, would justify a Variance and that even though someone else may have granted a Variance in the past but at the moment the Board had to do what they thought was a proper interpretation of the Law and the Code.
Mr. Fornal said that if the Sissons had a footprint on their property that pre-dated Zoning and the building had been put on top of that footprint, there would be a different result.
Mrs. Sisson asked what would happen if they sold the property in the future, could they then take the garage down, and then do away with the garage.
Chair Mallery asked if she was asking what would happen if they denied the Variance.
Mrs. Sisson stated yes.
Chair Mallery explained that was up to the Code Enforcement Officer and he stated that according to #140-62 (D) the Code Enforcement Officer could put a fine on the violation of up to $350.00 for each week the property is in violation, but that wasn’t up to the Board, they only decided weather or not to grant or deny the Variance.
Mr. Fornal stated the Sissons could file an article-78 which was essentially a lawsuit against the Town, but they’d have to hire an attorney and it would have to go to the Court.
Mr. Psaras asked if the Board was comfortable answering each of the five questions in adequate detail to state they took in consideration each of those five elements and even though the applicant had already violated the ordinance and built the garage the Board had to act as though the building did not exist and it was being treated as a new variance so that the violation wouldn’t be held against them but equally the Board could not provide sympathy for any cost the applicant may incur.
Chair Mallery stated the hardship was self created.
Mr. Fornal stated that in proving the hardship was self created they could reference the violation.
Chair Mallery went through the five questions for the Board to review and answer:
*Secretary Note: Can be found in the Zoning Code #140-66 (C) (2) Area Variances *
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;
Mr. Psaras stated there were 38-40 tax parcels within there and there were only 4-5 buildings not included in the subject property not in compliance, 3 looked to be residence that were built prior to 1900 if he had to guess, one was a barn and the last one being the one that was unlikely to have been built prior to the Zoning and it had cinderblock walls, so there was only a small percentage of the properties on the road, about 10 %.
Chair Mallery asked if anyone on the Board felt that a detriment would be created or an undesirable change to the neighborhood.
Mr. Psaras stated it depended on how broadly someone would want to define the word neighborhood.
Mr. Fornal stated it was not typical and the HighwayDepartment stated it was not a problem and that would take care of the neighborhood, it was not a problem with the Highway and as far if it was typical, no it was not.
Mr. Psaras stated he felt there was an affect on the community as a whole if it was based on precedence.
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;
Mr. Fornal stated in one instance they could by downsizing under 200 sq ft they would remove the need for a side yard variance.
Chair Mallery stated there were things that could have been done to avoid a side yard variance at all.
c) whether the requested area variance is substantial;
Mr. Fornal stated yes.
Chair Mallery stated he felt the Board agreed it was a substantial request.
d) whether the proposed variance will have an adverse effect or impact on the physical or environmental conditions in the neighborhood or district; and
Mr. Fornal said the SEQRA statement stated there was no adverse environmental impact.
Mr. Psaras stated the Highway Department stated no adverse physical impact.
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.
Mr. Psaras stated it was not the self-creation of the structure that they built it was of the existing property.
Mr. Fornal said the self-creation was that Mr. Sisson did not come to the ZBA, that was a self- created difficulty because they could have made suggestions which was what the Board was suppose to do by lessening the variance request.
Chair Mallery stated basically the variance request they had made was based upon a structure that was built without the variance.
Mr. Psaras stated yes but he considered that a contradiction to that they are suppose to act as though the building wasn’t already there.
Mr. Fornal stated it wasn’t an elephant in the room, the Board had to acknowledge that the structure was there because that was what got then applicants to the Board and the fact that they could have made suggestions to remove one variance and lessen the other substantially that was the self-created difficulty.
Chair Mallery stated that the last clause in that was “but it shall not necessarily preclude the granting of the area variance.” so he felt that this was more a question of substantiallity, and the factor that mitigated against granting the variance was that it was a very large variance and the fact that it was self created was that if the applicant had built a smaller structure it would be a different story, even though the applicant had built the garage the Board had to look at the scope of the variance and how big it was in making their determination and because it was the size it was and it was placed where it was placed, the Board was left with a variance that was substantial.
Ms. Enouen stated that she was considering the application that the garage was already there but if it wasn’t there then the Board would make suggestions to move it and then they would ask to amend the application and she asked if it was possible to grant the variance on the condition that the existing garage was torn down or would it have to have a second variance application.
Chair Mallery stated that they had to consider the motion made that was based on the applicantion in front of them and that the applicants could come back with a different plan that was not so substantial, they had the law they had to follow. He further stated if the structure wasn’t already in place they would have a lot more room to make suggestions.
Mr. Fornal made a motion:
DECISION # ZBA 2019-03AV
Application by: Kevin and Christine Sisson
Application #:19-03AV
Application filed on: April 5th, 2019
For: Area Variance pursuant to the Schedule of Zoning Uses of the Code of the Town of Rochester.
Reason for Variance request: Request for variance due to setback issues.
Acreage Property: +/- .28 Zoning District: R-2 Tax Map Sec.: 68.3-2-33
Type of structure: Storage Shed
Location: 192 Rochester Center Rd, Accord, NY 12404
Notice of Hearing published in the Shawangunk Journal and notice by mail to known adjacent landowners within 500’, and posted on the Town Website and bulletin board in the Town Clerk’s Office.
Date of Public Hearing: May 16th, 2019
Place: Harold Lipton Community Center, Accord, NY
A motion for denial is made based upon the available facts and Town of Rochester Zoning Code Chapter 140
Whereas a Violation Notice from the Code Enforcement Office (CEO) was issued 7 January 2019 due to the applicant having built a storage shed (18′ x 30′) without permit ( violation not delivered until April 2019 by Chief Constable Rich Miller)
Whereas an Application Of Zoning Permit And Classification (#19/079) was submitted by applicant on 5 April 2019 and it was determined said applicant required Area Variance for not meeting side and front yard setbacks
Whereas a preliminary Variance Application was filed on 8 April 2019 requesting an Area Variance
Whereas a pre-App meeting was held by the Town of Rochester Zoning Board of Appeals (ZBA) on 18 April 2019 to discuss the application
Whereas at the pre-App meeting with the ZBA, applicant explained that he had visited the CEO’s office and that CEO Jerry Davis had informed him that he would need an Area Variance before securing a Building Permit prior to building the proposed shed. The applicant stated that he thought the process would be lengthy so went ahead and built the shed without an Area Variance or a Building Permit because he wanted construction done before the winter weather got bad.
Whereas when asked why he built the shed so close to the road (Southside of property) he responded that he wanted to leave 13′ of room North of the shed to store a travel trailer.
Whereas the applicant stated that the only thing he could have done differently was to downsize the building as there wasn’t a lot of room to place it anywhere else on the property as the house was up against the property lines [NOTE: East and North side of house in violation of setbacks] and septic and well further restricted placement
Whereas at the pre-App meeting the applicant was informed that he would have to file a formal Variance Application and pay the fee by due date in order to have a Public Hearing on 16 May 2019
Whereas the .28 acre property in question was apparently created out of a 15.18 acre lot when the Town of Rochester required one acre minimum zoning throughout the town thereby creating a nonconforming lot subsequently bought by applicant in 2007 and apparently lost to county but repurchased in 2015 (Attached Ulster County Parcel Viewer information)
Whereas a detailed map submitted 5 April 2019 shows the location of the shed’s closest wall (South wall) at 24′ from the center of Rochester Center Road and West wall at 13.5′ from the side yard property line
Whereas the Town of Rochester requires a 35′ front yard setback and 40′ side yard setback in an R-2 Zoning District
Whereas there was some question as to the building having been constructed one foot within the 25′ Highway Right of Way (as established by NYS Highway Law)
Whereas liaison to the ZBA, Town Supervisor Mike Baden submitted a 42 page document (1 May 2019) regarding the complexity of Highway ROWs especially within the Town of Rochester; which included a comment from the current Highway Superintendent that if the town only clears and maintains to the side of the pavement, after six years, that constitutes the Highway Right of Way.
Whereas ZBA Chairman Cliff Mallery wrote a letter dated 1 May 2019 to the Town of Rochester Highway Department requesting a review of the unauthorized structure as pertains to safety and/or maintenance issues and received a letter dated 3 May 2019 from Deputy Highway Superintendent Jeffrey Frey stating the shed would not pose any difficulties or safety concerns;
Whereas the applicant provided a copy of the deed on 6 May 2019 that determined the property front line started at the edge of the road and not, as most properties on town roads, extending to the center of the road.
Whereas the State of New York requires that local ZBAs “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.”
Whereas since the first Town of Rochester Zoning Code was adopted in 1969 emphasis has been placed upon NOT building accessory structures in the Front Yard Setback; this prohibition continuing in all subsequent code updates including the complete reworking of Zoning Code adopted in 2009 [§140-13C2]
Whereas this ZBA gives the full benefit of doubt to the applicant vis-à-vis where the front yard starts, at the edge of Rochester Center road where a steep slope begins and runs 14′ northward before the property flattens out and is where the shed is located extending another 18′ until a 13′ area begins before another slope rises several feet to level area of house (this 13′ set aside for the parking of travel trailer)
Whereas a 2005 Town of Rochester Assessor Property Analysis established that of 2940 built upon residential properties in the Town of Rochester, 1247 are properties less than two acres; 479 of those less than one acre [SEE: attached Assessor Analysis Record]
Whereas no doubt the size and placement of shed in question benefits the applicant, to allow such breaches of setbacks (Front yard at 60 percent as the building lies wholly within the 35′ front yard setback; Side yard at 66.25 percent; both of these variances considered very large vis-à-vis substantiality) would then set a precedent for EVERY pre-existing non-conforming lot which, at 1247 properties or 42.41 percent of all built upon residential properties would thus render zoning superfluous as the reason for allowing such setback variances in this instance, is the property is too small to allow the applicant to do what they want which would essentially be applicable to every pre-existing non-conforming property. This could have a huge negative impact on the community by allowing a collapse of zoning setbacks for a huge number of parcels. [SEE: attached Assessor Analysis Record]
Whereas the application was determined to be Type II action under SEQR (617.5 (c) (12) and therefore does not pose an adverse environmental impact.
Whereas four photos were supplied 6 May 2019 showing structures close to Rochester Center roadside, these structures are primary/principle structures (w/only one accessory structure) which, when considering there are approximately 38 properties with road frontage along the road in question, do not render such closeness to roadside a neighborhood characteristic. [SEE: Attached UC Parcel Viewer map]
Whereas several letters from Rochester Center Road property owners stated they had no problem with the variance request and subsequently held Public Hearing produced no comments.
Whereas had the applicant come to the ZBA first, Variance options were available (e.g., downsizing the building to 12’x16′ thereby falling under 200 sq. ft. which would allow for placement as close as 10′ to side property line [§140-13C1] thereby not requiring a Side Yard Variance; as well as placing the reduced sized shed further back another 13′ would have only then required only a 2′ or a 5.7 percent Front Yard Variance)
Whereas the applicant’s difficulty as regards the purchasing of such a small non-conforming lot with its inherent difficulties, the building of shed without first getting a variance, the building of the shed without first gaining a building permit, the placement of shed not opting for 13′ further North due to desire to park a travel trailer in that space [which would be a violation of §140-23 E 2; relevant part ” such unoccupied recreational vehicle shall not be parked or located between the street line and the front building line of such premises or be connected to utilities.”] thereby significantly reducing the requested Front Yard Setback, along with the failure to downsize the shed to less than 200 sq. ft. in order to eliminate the need for Side Yard Setback Variance, are all self-created difficulties
Therefore, based upon facts and information obtained and reasons stated, the Town of Rochester ZBA, on this 16th day of May 2019 denies this Area Variance request.
Motion made by: Mr. Fornal
Motion seconded by: Mr. Psaras
Abstained: Mr. Fischer
Vote: Ayes: ¬¬¬¬¬¬¬ 4 Nays: 0 Abstain: 1 Absent: 0
Adopted: May 16th, 2019
_______________________________
Cliff Mallery, Chairperson
Ms. Enouen stated if the applicants met with the Code Enforcement Officer about what to do with the existing violation then if they were going to move the exisiting garage they should apply for a variance in regards to the new placement and put in their application what they thought would be best before they built the structure and come to the ZBA again and at that point the Board could give them advice.
Mr. Sisson asked if the Board had any other suggestions.
Mr. Fornal stated an Article 78 but he wouldn’t suggest them doing it on their own.
Mr. Sisson stated that he would go back to the Code Enforcement Officer.
There was no other discussion or questions.
OTHER MATTERS
Accepting the April 18th, 2019 regular meeting minutes:
Mr. Fornal made the motion to accept the minutes from the April 18th, 2019 regular meeting minutes. Mr. Fischer seconded the motion. Chair Mallery abstained.
Motion Carried.
4 ayes, 0 nays, 1 abstentions, 0 absent
Mr. Fischer made the motion to have the secretary put a notice in the paper that the meetings for the months of June and July would be held at the Town of Rochester Town Hall. Mr. Fornal seconded the motion.
All in Favor. Motion Carried.
5 ayes, 0 nays, 0 abstentions, 0 absent.
ADJOURNMENT:
Mr. Psaras made the motion to adjourn at 8:10pm. Mr. Fornal seconded the motion.
All in Favor. Motion Carried.
5 ayes, 0 nays, 0 abstentions, 0 absent.
Respectfully Submitted,
Brianna Tetro, Secretary