ZONING BOARD OF APPEALS
TOWN OF ROCHESTER
ULSTER COUNTY
ACCORD, NEW YORK
(845) 626-2434
nknapp@townofrochester.ny.gov
MINUTES of the November 18, 2021 Town of Rochester Zoning Board of Appeals, held via Zoom and Livestreamed on Youtube.
Chair Psaras called the meeting to order at 6:01PM.
The secretary did roll call.
PRESENT: ABSENT:
Bruce Psaras, Chair
Michael Wassell
Charles Fischer
Bill Barringer
Jill Bressler (left at 6:07pm)
ALSO PRESENT: Mary Lou Christiana, Attorney for the Town; Nicole Knapp, Planning and Zoning Board Secretary; Erin Enouen, Councilwoman and ZBA Liaison
OTHER MATTERS:
1. Chair Psaras and Ms. Christiana advised the Board that there is a hybrid/remote meeting option for those members who do not feel comfortable meeting in person. This stays in effect until 1/15/2022, unless prolonged by the Governor. The meeting with Zoom link will be noticed to all Board members.
Chair Psaras made a motion to adopt this hybrid model. Mr. Wassell seconded the motion.
ROLL CALL:
Charlie Fischer – Aye
Bill Barringer – Aye
Michael Wassell – Aye
Jill Bressler – Aye
Chair Psaras – Aye
All in Favor. Motion Carried.
5 ayes, 0 nays, 0 abstentions
2. Chair Psaras read a letter from Steve Fornal:
To: Town of Rochester ZBA Chairman and members of the board
Re: Sisson Area Variance
I’ve been watching the ZOOM meetings with a particular interest in the Sisson case. After appearing in town court over this matter in July 2021, the Sisson’s appeared at the August 2021 ZBA meeting seeking to “negotiate” with the ZBA as to what would be acceptable as per his illegally constructed accessory structures consisting of a poured slab and a 18’x30′ shed.
Mr. Sisson was told by the ZBA Chairman that he would have to submit a new plan and the ZBA would then determine whether or not a variance would be approved. He wrangled for quite a while before offering to take off 4′ from one end of the shed thereby lessening the requested side yard variance.
In my judgment, that 4′ does not in any way constitute a significant change from what the ZBA rejected two-and-a-half years ago.
Be that as it may, Mr. Sisson has not turned in another plan to the Code Enforcement Office as he needed to do to continue the ZBA process. Therefore, I request that the ZBA send Mr. Sisson a letter indicating his responsibility to submit a variance application with the proposed change to the CEO. I also request a letter be sent to the Town Court updating it on this case (to include a copy of the ZBA letter sent to the Sissons).
I am aware of no prohibition of a ZBA updating a town court as to a pending case before it so that it may have all the latest information. Without sending out these letters, it is easy to see the reason this town has routinely neglected zoning infractions; they simply get lost in the shuffle.
It is about time the Town of Rochester get serious about zoning infractions. Especially ones as blatant as this case is. For the benefit of the new ZBA member (and to refresh the memory of those that sat on the board during that case), in the Fall of 2018, Mr. Sisson visited the CEO and asked what needed to be done to put up a shed in his front yard. He was told he needed two variances (front and side yard) and then obtain a building permit and undergo inspections. Mr. Sisson proceeded to pour a slab and erect the structure without either the variances or a building permit. When later Mr. Sisson’s violation was reported (Violation Notice letter from CEO to Sisson dated 7 January 2019). After Mr. Sisson was finally served, he returned to the ZBA in February 2020 and offered nothing new; other than to level a charge that the decision rendered by the ZBA contained an error; to wit, the Sisson property had been “in the family for a hundred years.” [That is not true per the Sisson lot created in 1999 nor was it relevant to the decision] In addition, Mr. Sisson claimed he never got the decision mailed to him. The ZBA secretary confirmed the decision had been sent out. The ZBA Attorney established the fact that Mr. Sisson had been present at the meeting during which the decision was read out loud. The ZBA Attorney further stated that Mr. Sisson had had a certain amount of time to appeal that decision but had not.
Two years and two months after the denial of the Sisson variance request issued by the ZBA, Mr. Sisson got called into Town Court (July 2021) and subsequently put in an appearance with the ZBA in August 2021. He did not follow up in September, nor October, as is required in order to have his new plan considered, public hearing noticed and held and decision rendered. I can easily see how simply not showing back up will allow his blatant violation to go uncorrected. So, please, a letter to Mr. Sisson outlining his obligation to resubmit a variance request and a letter to the court updating it on Sisson’s open case.
Thank You for considering this matter.
Steven L. Fornal
Accord, NY
The Board discussed the letter. Mr. Fischer stated it is up to the Code Enforcement Office to enforce the code, not the ZBA. Ms. Christiana agreed, stating the ZBA does not submit documentation to the Court. The Court could subpoena any documents relating to the case from the ZBA, however.
3. Mr. Wassell made a motion to approve the minutes from 10/21/21. Mr. Fischer seconded the motion.
ROLL CALL:
Charlie Fischer – Aye
Bill Barringer – Aye
Michael Wassell – Aye
Chair Psaras – Aye
All in Favor. Motion Carried.
4 ayes, 0 nays, 0 abstentions
4. The Secretary presented the Board with proposed 2022 meeting dates. The time will remain the same, beginning at 6PM.
Chair Psaras made a motion to accept the proposed 2022 meeting dates. Mr. Wassell seconded the motion.
ROLL CALL:
Charlie Fischer – Aye
Bill Barringer – Aye
Michael Wassell – Aye
Chair Psaras – Aye
All in Favor. Motion Carried.
4 ayes, 0 nays, 0 abstentions
APPLICATIONS:
21/520 – Bettina Schneider – Area Variance/Public Hearing (WITHDRAWN)
700 Cty. Rte. 6/SBL: 77.2-4-7 R-2 District
Chair Psaras notified the Board that Ms. Schneider had withdrawn her application at this point in time.
21/049 AV – Tow Path Rd. LLC/John Sturges – Area Variance
442 Tow Path Rd./ SBL: 77.2-4-48 R-5 District
Mr. Sturges was present on behalf of the application.
Mr. Barringer made a motion to deny the variance based on the previous ECC letter (see 10/21/21 ZBA minutes) and due to the property being in a flood zone. There was no second to the motion.
Chair Psaras pointed out the building itself is not in the flood zone.
Mr. Wassell stated this is an area with ecological sensitivities. He also clarified there is no shed in the plan, as mentioned in the ECC letter. He believes the applicant to be a responsible land owner and he will protect the land.
Mr. Barringer mentioned the variance will stay with the land forever and asked if the future land owners will show the same care as the current applicant.
Chair Psaras read the following motion:
ZBA Decision: 20-049AV
Applicant: Tow Path Road LLC – John Sturges as Agent
Reason for Request: Application for Side yard and High water mark area variance. Application was amended on July 22, 2021 to seek variances of 6.5 feet for the side yard and 19 feet to the high water mark.
Location: 442 Tow Path Rd, Accord, N.Y. Total Acreage: +/(-) 1.7
S/B/L: 77.2-1-48 Zoning District: R-5
Code Enforcement Determination:
• Parcel is in the R-5 zoning district
• Parcel is+/- 1.7 acres
• Applicant proposes the erection of a single-family residence
• Applicant does not meet the 100′ setback set from the high-water line
• Proposed structure is+/- 70′ away from the high-water line
• Applicant would need a+/- 30′ variance
Application was amended July 22, 2021 – to a Side Yard setback of 6.5′ and a r 19′ setback to the High Water Mark setback with the adjusted dwelling siting as shown on the revised site plan dated July 19, 2021
ZBA Application filed: March 18, 2021
SEQR Type: Type II SEQR Determination: N/A
EAF filed: N/A Other Agency Referrals: N/A
Documents considered by the Zoning Board of Appeals for review:
1. Sturges.CEO_letter_to_ZBA.2021-04-23.pdf
2. Sturges.Zoning_Permit.2021-04-23.pdf
3. Sturges.Pre_App_Application(No number).2021-04-26.pdf
4. Sturges.Ag_data_statement.2021-04-26.pdf
5. Sturges.EAF_Part_I.2021-04-26.pdf
6. Tow Path Cabin Building Permit 4-22-2014.pdf
7. Scanned from a Xerox Multifunction Device (1).pdf
8. 2021-6-25_SturgesSurvey.jpg
9. 2021-7-2_Sturges_emailchain.pdf
10. 2021-7-7_Sturges_siteplan.pdf
11. 2021-7-7_Sturges_emailchain.pdf
12. 2021-7-12_Sturgis_siteplan.pdf
13. 2021-7-19_Sturges_siteplan.pdf
14. 2021-7-19_Sturges_siteplan_magnified.docx
15. 2021-7-22_Sturges_amendedapp.pdf
16. 2021-7-23_Sturges_PHnotice.docx
17. 2021-8-11_Sturges_letterofagent.pdf
18. 2021-8-16_Sturges_amendedapp.pdf
19. SturgesAV_ECCpacket.pdf
20. 2021-9-16_SturgesAV_ECCemail.pdf
21. 2021-10-7_SturgesAV_ECCcomments.pdf
22. 2021-11-3_SturgesAV_responseletter.pdf
Notice of Public Hearing: Town of Rochester Website and Shawangunk Journal, Published in the July 30th, 2021 edition
Date(s) of Public Hearing: August 19, 2021 Place: Harold Lipton Community Center, at 15 Tobacco Road, Accord, NY
Public Comment: (see Minutes of Town of Rochester Zoning Board of Appeals)
1. 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.
a. Yes No
b. Finding: There is no significant change in the character of the neighborhood or district.
2. Whether the benefit sought by the applicant can be achieved by some method, feasible for the applicant to pursue, other than an area variance.
a. Yes No
b. Finding: The proposed dwelling has yet to be constructed. The opportunity to redesign and/or reposition the structure in a way to either eliminate or reduce the need for the variance is feasible.
3. Whether the requested area variance is substantial.
a. Yes No
b. Finding: The requested side yard variance for the proposed dwelling is 6.5 feet. This is moderate at 13% of the 50 foot requirement and below the allowable maximum of 50% for side yard variance for a nonconforming lot per code §140-43 – “Use of existing nonconforming lots of record”.
c. Yes No
d. Finding: The requested variance to the High Water Mark setback to accommodate a proposed porch is 19.0 feet, a significant value of 19% of the required 100 feet.
e. Yes No
f. Finding: The proposed dwelling without the porch would require a 5.0 foot variance to the High Water Mark setback or 5% or the 100 foot requirement.
4. Whether the proposed variance will have an adverse effect or impact on the physical or environmental conditions in the neighborhood or district.
a. Yes No
b. Finding: The New York State Department of Environmental Conservation Hudson Valley Natural Resource Mapper indicates the subject property is within an area known for rare plants, aquatic and terrestrial animals. The woodland and forest on, and surrounding the property, are classified as a “Core Forest” indicating it is especially important for maintaining habitats for sensitive wildlife.
5. Whether the alleged difficulty was self-created, which consideration shall be relevant to the decision of the board of appeals but shall not necessarily preclude the granting of the area variance.
a. Yes No
b. Finding: The topography and waterfront location of the lot is not peculiar to the district. The hardship results from the proposed placement and size of the dwelling and porch.
Determination based on the above factors:
It is hereby determined by the Town of Rochester Zoning Board of Appeals the request for an area variance for a side yard setback of 6.5 feet is GRANTED with the condition the proposed dwelling is constructed with a footprint consistent with the site plan as submitted by the applicant in the document labelled “2021-7-19_Sturges_siteplan_magnified”.
It is hereby determined by the Town of Rochester Zoning Board of Appeals the request for an area variance from the High Water Mark setback of 19.0 feet is DENIED.
It is hereby determined by the Town of Rochester Zoning Board of Appeals the request for an area variance from the High Water Mark setback of 5.0 feet is GRANTED with the condition the proposed dwelling is constructed with a footprint consistent with the site plan as submitted by the applicant in the document labelled “2021-7-19_Sturges_siteplan_magnified”.
The determination is consistent with the Town of Rochester comprehensive plan concerning protections for environmental quality and natural resources by minimizing disturbance to wildlife and vegetation.
Motion made by: Mr. Psaras
Motion seconded by: Mr. Wassell
ROLL CALL:
Charlie Fischer – Aye
Bill Barringer – Nay
Michael Wassell – Aye
Chair Psaras – Aye
Majority in Favor. Motion Carried.
Vote: Ayes: 3 Nays: 1 Abstain: 0 Absent: 1 Vacancies: 0
Adopted: November 18, 2021
Mr. Sturges stated he would re-submit a plan to the CEO deleting the deck off the house and shifting the house closer to the road.
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20/264 – DiFlamminio/Kudryavtseva – Area Variance
21 Ski Slope Rd./SBL: 59.7-2-31 R-2 District
Mr. Wassell read the following motion:
ZBA Decision: 20-264AV
Applicant: Selene DiFlamminio & Marina Kudryavtseva (Applicant/Owner)
Reason for Request: The application proposes an Area Variance to implement a lot line improvement as the current property line runs through a cabin on a neighboring lot.
Location: 21 Ski Slope Road, Kerhonkson, NY 11249 Total Acreage: +/- 1.60 acres
S/B/L: 59.7-2-31 Zoning District: R-2 Low Density Residential
Code Enforcement Determination: Area variance required
Zoning Board of Appeals Application: 20/264 SEQR Type: Type II
ZBA Application filed: 7-15-2020 SEQR Determination: N/A
EAF filed: N/A Other Agency Referrals: N/A
Documents considered by the Zoning Board of Appeals for review:
1. 07-15-2020- DiFlamminio & Kudryavtseva-Zoning Permit Application-Area Variance
2. 08-11-2020- DiFlamminio & Kudryavtseva-ZBA Application
3. 08-17-2020- DiFlamminio & Kudryavtseva–Photos of property (3)
4. 11-10-2020- DiFlamminio & Kudryavtseva -Survey Map showing proposed Lot Line Improvement.
5. 04-21-2021- DiFlamminio & Kudryavtseva- Survey Map showing existing lot line
6. 06-17-2021- DiFlamminio & Kudryavtseva-Letter from Trails End Residents Association
Notice of Public Hearing:
1. Published in the Shawangunk Journal, October 7th, 2021 Edition
2. Notice by mail to known landowners within 500’ and application referral agencies: 09-22-2021
3. Posted on the Town of Rochester Clerk bulletin board: 10-4-2021
Date(s) of Public Hearing: 10/21/2021 Place: Harold Lipton Community Center, 15 Tobacco Road, Accord, NY
Public Comment: (see Minutes of Town of Rochester Zoning Board of Appeals – 10/21/2021
The Town of Rochester Zoning Board of Appeals hereby makes the following findings with respect to the specific criteria for area variances as set forth in the of the Town’s Code local law § 125.18(A)2 and 140.66(C)
6. 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.
a) Yes ☐ No ☒
Finding: Approval of the Area Variance will not negatively impact the surrounding community or pose any apparent detriment to neighboring properties. The applicants are beginning with two non-conforming lots and the proposed variance will result in two non-conforming lots.
7. Whether the benefit sought by the applicant can be achieved by some method, feasible for the applicant to pursue, other than an area variance.
b) Yes ☐ No ☒
c) Finding: The alternative method considered to achieve the sought-after benefit involves physically moving the cabin. The applicant has described challenges in the topography and an existing natural barrier comprised of trees that make this approach impractical. In addition, the physical environment of the lot would be disturbed as septic, well and utility lines would need to be relocated.
8. Whether the requested area variance is substantial.
a) Yes ☐ No ☒
b) Finding: The requested lot line adjustment is not deemed substantial. One lot will be reduced from 1.6 acres to 1.2 acres and the adjoining lot will be increased from .57 acres to 1.0 acre. Both begin as non-conforming and end as non-conforming, however, it is noted that the adjustment will result in a less lopsided, and more balanced, lot configuration between the two. This offsetting change in lot lines, when taken together, results in a minimal variance overall. Also noteworthy is the fact that this lot line adjustment would result in establishing an approximate 40’ side yard setback from the newly established lot line to the cabin. The current lot line travels directly through the cabin, leaving no side yard setback whatsoever. The proposed lot line adjustment would cure this shortcoming and result in a setback consistent with the Town of Rochester Zoning Law, Schedule of District Regulations pertaining to lands located in a R-2 Low Density Residential District, which calls for a 40’ side yard setback.
9. Whether the proposed variance will have an adverse effect or impact on the physical or environmental conditions in the neighborhood or district.
a) Yes ☐ No ☒
b) Finding: Moving the lot line as proposed would have no adverse effect or impact on the physical or environmental conditions of the neighborhood or district.
10. Whether the alleged difficulty was self-created, which consideration shall be relevant to the decision of the board of appeals, but shall not necessarily preclude the granting of the area variance.
a) Yes ☐ No ☒
b) Finding: The applicant purchased the lots in question, with their lot lines drawn and cabin already built. Nevertheless, given that the homes on each lot have separate wells, septic and electricity, it appears reasonable to conclude that the applicant believed that there was no such issue with the lot lines at the time of purchase. Such an assumption, when made in good faith, as it appears it was in this case, does not meet the ordinary definition of a self-created difficulty. This view is further supported by the fact that the original driveway features provided separate access to each respective property. Lastly, as mentioned above, the proposed variance would establish a side yard setback in keeping with Town Code.
Determination based on the above factors:
Granted ☒ Denied ☐
It is hereby determined by the Town of Rochester Zoning Board of Appeals that the request for an Area Variance is GRANTED.
Motion made by: Mr. Wassell
Motion seconded by: Mr. Barringer
ROLL CALL:
Charlie Fischer – Aye
Bill Barringer – Nay
Michael Wassell – Aye
Chair Psaras – Aye
All in Favor. Motion Carried.
Vote: Ayes: 4 Nays: 0 Abstain: 0 Absent: 1 Vacancies: 0
Adopted: November 18, 2021
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21/373 AV – Kevin Sisson – Area Variance
192 Rochester Center Rd./ SBL: 68.3-2-33 R-2 District
Ms. Christiana stated there would need to be a motion to rehear the application and it would need to be unanimous.
There have been no changes to the application for the last 4 months.
Chair Psaras read the following motion:
ZBA Decision: #21/373
Applicant: Kevin Sisson
Reason for Request: Application for a Side and Front yard Are Variance.
Location: 192 Rochester Center Rd, Accord, N.Y. Total Acreage: +/(-) 0.28
S/B/L: 68.3-52-33 Zoning District: R-2
Code Enforcement Determination:
• Parcel is in the R-2 zoning district
• Parcel is+/- 0.28 acres
• Applicant has erected a 30’x18’ garage
• Applicant does not meet the setback for side/front yards
ZBA Application filed: July 14th , 2021
SEQR Type: Type II SEQR Determination: N/A
EAF filed: N/A Other Agency Referrals: N/A
Documents considered by the Zoning Board of Appeals for review:
23. 2021-7-23_SissonAV_Zoning_Permit.pdf
24. 2021-7-23_SissonAV_PropertySketch.pdf
25. Completed-Dated-Sisson-Application-4-25-19.pdf
26. 4-5-2019-Sisson-Map.pdf
On July 23rd, 2021 the Code Enforcement Officer (CEO) issued a determination letter, Zoning Permit #21/373, stating Mr. Sisson’s property;
• Is in the R2 zoning district
• Is +/- 0.28 acres
• Mr. Sisson erected a 30’ x 18’ garage
• The garage did not meet the setback for the side / front yards.
Mr. Sisson met with the ZBA on August 19th, 2021 and stated there was no significant change to the building.
Mr. Sisson revised the site plan at the meeting showing a reduction in the building footprint from 30’ x 18’ to 26’ x 18’. Mr. Sisson was advised by the Zoning Board of Appeals (ZBA) to resubmit the plan to the CEO for a determination.
As of November 18th, 2021 a new application has not been submitted to the CEO. The ZBA has before it application #21/373 which does not vary from Mr. Sisson prior application #19-03AV, submitted on April 5th 2019 and denied by the ZBA on May 16th, 2019. The denied application #19-03AV has not been previously reheard.
The ZBA has determined the current application #21/373 is an appeal for a rehearing for #19-03AV
Motion made by: Mr. Psaras
Motion seconded by: Mr. Wassell
ROLL CALL:
Charlie Fischer – Aye
Bill Barringer – Nay
Michael Wassell – Aye
Chair Psaras – Aye
All in Favor. Motion Carried.
Vote: Ayes: 4 Nays: 0 Abstain: 0 Absent: 1 Vacancies: 0
The ZBA has DENIED the appeal for a rehearing.
Motion made by: Mr. Psaras
Motion seconded by: Mr. Wassell
ROLL CALL:
Charlie Fischer – Aye
Bill Barringer – Nay
Michael Wassell – Aye
Chair Psaras – Aye
All in Favor. Motion Carried.
Vote: Ayes: 4 Nays: 0 Abstain: 0 Absent: 1 Vacancies: 0
Adopted: November 18, 2021
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ADJOURNMENT:
Mr. Fischer made the motion to adjourn the meeting. Mr. Barringer seconded the motion.
All in favor. Motion Carried.
4 ayes, 0 nays, 0 abstentions
Respectfully Submitted,
Nicole Knapp, Secretary