HomeMy WebLinkAboutMindlinappl.pdf Village of Cayuga Heights
Zoning Board of Appeals
Application Form
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Date Received
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Area Variance Zoning District ,
Applicable Section(s) of Villa e Code:
Use Variance
_Interpretation Request
Property address: /�� l iL� Tax parcel:
Zonytg Officer's determination:
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Requested i nee interpretation: 5-�o- ahla/ bed
Reason(s) that the requested variance or interpretation should be granted:
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Mindlin Levine Variance Application
Table of Contents
1. Application Form Answers Pages 2 - 9
2. Three Sketches Pages 10 - 12
3. Aluminum Fence Composite Page 13
4. Photos of Property Pages 14 - 16
5. Letters Submitted
Application Form Attachment
Requested variance:
1. We are requesting an area variance that allows our existing fencing to remain in place and
allows the two Midway Road gates to be upgraded so as to be fully functional (as explained to
the Zoning Officer, Brent Cross). Please see Sketch 1 for existing conditions.
2. We are offering to make certain improvements to the existing, non-compliant fencing and
gates and are willing to accept a variance with conditions that make implementation of the
following upgrades a requirement:
a. The fencing in the vicinity of the comer of Midway and Klinewoods Roads would be
relocated further back from each street, so that there is a greater setback on each street. We are
offering to pull the fence in by approximately 15 feet at the corner, so that it would generally
follow the existing, curved garden beds in this area,rather than going to the actual corner of our
property as it does now. This would bring the fencing inside of the shagbark hickory tree near
the comer,thereby creating a 15-foot, 4-inch setback at that point and reducing the length of
fencing on both streets. This relocation can be accomplished within 14 months of the granting of
this variance. Please see Sketch 2 for the proposed changes.
b. The existing steel posts and mesh fencing in the actual front yard on the Midway Road
side, north from the point where the legal wood lattice fence returns to the house, and along the
Klinewoods Road side, would be replaced with more attractive, professional fencing and a
professional gate at the east end of the stone walkway, on the Midway Road side, within fourteen
months of the granting of this variance. Please see Sketch 2.
c. The existing steel posts and mesh fencing on the Midway Road side, south of the point
where the legal wood lattice fence returns to the house (which were added to the wood lattice
fence to stop deer intrusions into our "back" yard), can be replaced with professional and more
attractive fencing and a professional tall gate, corresponding to the gate in the wood lattice fence,
within fourteen months of the granting of this variance. Please see Sketch 2.
d. By the fall of 2012, we could remove the steel posts and mesh fencing from the west
side of our driveway, to the point of the 25-foot setback. Please see Sketch 2.
We note that we and Zoning Officer Brent Cross have agreed upon a solution for the small
"bump-out"section of the existingfence, which we have learned infringes upon the right-of-way
for Klinewoods Road. Independently of this variance request, we have agreed to relocate this
part of the fence outside the right-of-way, in the fall of 2012. Thus, in this area, if the fence is
allowed to remain, it would simply continue straight along the property line, to the easterly edge
of the driveway. Please see Sketch 1, which illustrates how the existing "bump-out"will be
replaced.
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Reasons to grant request:
1. The benefit to us of granting our variance request is the continued protection of our property,
health and safety.
a. Our fencing preserves the full economic value of our grounds and home.
b. Our fencing preserves the existing aesthetics of our property and home, which are also a
key component of our peaceful enjoyment of our property and our well being.
c. Our fencing protects our health and safety. Please see the enclosed letters from Mindy's
physicians, Dr. Jamie Loehr and Dr. Barbara Mols Kowalczewski. As they have explained,
gardening at our home is the physical activity that has been most successful in keeping Mindy's
medical conditions under control. She could not pursue this activity without fencing,
because it is dangerous for her to be exposed to the animal feces which would otherwise
litter the yard. Furthermore, without protective fencing, our gardens would quickly be
destroyed.
2. Allowing our fencing to remain in place, especially if it can be improved in the ways we have
suggested and are prepared to undertake, also provides benefits to the neighborhood. Our
property,with its attractive and diverse landscaping, enhances the value and desirability of the
neighborhood and its natural resources. Our gardens have been 20 years in the making and are
unique in their style. The aesthetic accomplishment they represent is praised by neighbors,
passers-by, and many other members of the community. Our neighbors support our efforts
and this variance request. Please see the enclosed letters.
3. There are no undesirable effects on the neighborhood or the environment.
a. We have never received any complaints and there have been no formal complaints
from the village in the seventeen years that the fencing has been in place.
b. We did not and will not disrupt nor change the habitual patterns of the deer in the area, nor
did we or will we force deer onto other properties. The established patterns are unchanged.
Deer travel through the properties of the two houses to the east, on the other side of Midway
Road, and through the property one house down to the west, and sleep and feed in our
surrounding neighbors' yards, and have done so since long before our fencing was installed.
c. Our property enhances the value and desirability of the neighborhood and preserves and
protects the environment.
d. We were given permission to fence our property and have been allowed to maintain that
fencing for many years. We created and have maintained the extensive landscaping on our
property accordingly.
4. There is no other feasible means available to protect our property, health, and safety.
5. We did not create the serious over population of white tail deer which necessitated the
tall fencing and led to the introduction of large predator animals in our community, presenting
yet another necessity for protective fencing.
6. Given the history of our situation, granting a variance to allow our fencing to remain is the
fair response. Many years ago, when we wanted to establish gardens and fence our property, we
spoke to Village officials, who told us that the law on the books regulating such fencing was not
being enforced, and that we could go ahead with our plans. Based on that advice, we made
investments, not just in the fencing, but in the gardens and landscaping that we reasonably
believed would be protected by fencing which the Village condoned. Now, 17 years after
allowing us to make and sustain that investment,the Village has changed its position and seeks
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to enforce its laws against us,to the detriment of ourselves and many other property owners who
relied upon its advice. The fair solution to this difficult situation is to grant a variance that
allows us to continue to maintain the protection we were told we could install, many years ago,
ideally with conditions that would require and permit us to improve the aesthetics of the fencing,
as well as the functionality of the gates now in place.
7. When this fence ordinance was passed, it was stated that inequities in the law would be
addressed by the Zoning Board, where relief would be given to those who are unfairly impacted
by the law; specifically mentioned were property owners with more than one "front" yard
property line, and/or with corner lots, and/or with houses at or near the setbacks. We have a
comer lot with two "front" yard property lines and our house is located close to both setbacks.
We also would note that the Village Zoning Officer has acknowledged that enforcement of the
new fence ordinance has focused on fences that can be seen from village streets, which approach
does not necessarily identify all non-compliant fences.
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Detailed Answers to Statutory Questions
(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.
There will be no undesirable change in the character of the neighborhood and no detriment to
nearby properties, if the requested area variance is granted. Deer-resistant fencing has existed in
its current location for many years. The variance will simply maintain the status quo (or, if the
conditions we have suggested are imposed, the variance will actually reduce the amount of
fencing and produce a positive change in its aesthetics). A significant change in the character of
the neighborhood would occur only if the variance is denied, in which case most of the existing
landscaping will be lost.
Presently, our property provides a benefit to our neighbors and the neighborhood,provides a
habitat for beneficial wildlife, and represents twenty years of improvements in the hardscape and
plantings, including more than six dozen trees, of which sixty are still alive and thriving, eighty
bushes, and thousands of perennials, extensive stonework, legal fencing with gates to
accommodate neighbors, areas of lawn, and sculpture. It provides a place where neighbors and
friends come to sit peacefully or bring their kids and dogs to play safely. Furthermore, there will
be no change in the neighborhood because neither the legal fencing,which has been up for the
last 18 years, nor the fencing at issue, changed the deer patterns. If we are allowed to improve
the appearance of the fencing, we will also reduce the amount of fencing along each street and
increase the setback areas.
All of the back yard fencing at issue has been up since 1995, with the existing front yard fencing
going up a few years later. Creating a deer-resistant fence became a necessity because of the
increasing sampling by the increasing number of deer, who would stray from their regular paths
across nearby properties, which led to the destruction of our plantings and excessive amounts of
feces which they left behind.
We have never received a complaint about our fencing, only compliments and appreciation for
our gardens and landscaping. We were not, nor have we ever been, a site for significant deer
feeding,nor for deer bedding down, nor for deer paths. Our fencing altered nothing in terms of
existing deer activities or travel patterns. Nine to twelve deer regularly sleep and feed in our
neighbor, Mary Bartek's yard, across the street on Klinewoods. Mary's home faces our fencing
and she has sent a letter in support of our fencing. The deer travel through the back yards of the
Linkes and the Wasmuths, where they also sleep. The Linkes have submitted a letter of support
for our fencing, as have the Wasmuths.
(2) Whether the benefit sought by the applicant can be achieved by some other method,
feasible for the applicant to pursue, other than an area variance.
The benefit sought cannot be achieved by any other method. Tall fencing is the only method
available to protect our property value and our health and safety, all of which are imperiled by
the intrusion of deer and other animals into the yard.
A major benefit of being allowed to maintain our fencing (and a deer-free yard) concerns our
physical health and well-being. Because of existing medical conditions, Mindy needs
substantial, daily, physical exertion. She has not been able to achieve or maintain the level of
exertion needed to keep her condition in check through mere workouts, which she does with a
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trainer on a regular basis. Her doctors agree that the activity that has been most beneficial for
her condition is regular and intensive gardening. While this activity is difficult for her, it is
literally life sustaining. Without it, she cannot achieve the necessary results to manage her
medical issues. We have enclosed statements from her doctors confirming this. Her health and
well-being literally depend upon her ability to work regularly and intensively in our yard.
Another aspect of Mindy's physical condition is that she is more susceptible to certain animal-
borne health risks - giardhia, lyme disease, and other infections. So, she cannot risk working in
the yard if it is covered in feces, which it would be in very short order without deer-resistant
fencing. Due to the fact that our property is a corner lot, we do not have a real (3-sided) back
yard(according to the fence law), and therefore cannot install the fencing that would be
compliant in a normal back yard. Meeting all front-yard setbacks would leave most of the front
yard devastated, require the elimination of the stone walk to the back yard, and destroy all of the
"side" lot beds along Midway Road. Mindy would lose the ability and motivation to work in our
yard in the way that she has been doing for over seventeen years. Roy would also be at risk and
we would lose the use of more than 27% of our property. Please see Sketch 3 for setback
consequences.
(3)Whether the requested variance is substantial.
The length of non-compliant fencing involved is not substantial. The true front property line
fencing (along Klinewoods Road) is presently only16%of the perimeter. If the fencing along the
"side"property line, on Midway Road (which would be legal now if ours were not a comer lot),
is added in,the non-compliant fencing represents 42.6% of the perimeter, still less than fifty
percent. The fencing is at the property line on Klinewoods out of necessity, due to the placement
of our house and the planting beds. It goes from the property line to twenty-one feet back from
the property line (only four feet short of the setback requirement) along Midway Road. There is
ample green space between the road and the fencing on both streets for deer to walk or run,
which they now do when they sample and destroy the plantings outside of our fencing, despite
the fact that we used "deer resistant" species. They destroyed twelve such trees and bushes this
past winter, which is a new record.
Presently, the fencing on Midway Road is set back from our property line 21 feet at the south
end of the legal wood lattice fencing. As proposed, it would be at 15 feet 4 inches at the comer.
Under our proposal, it runs for 89% of that property line, which is only 14% over the exclosure
allowance. We could legally construct exclosures which would double the amount of fencing
within that same setback area, for 75% of the length of that property line. On Klinewoods Road,
under our proposal, fencing would cover only 63.8% of that property line, which is less than the
allowed exclosure coverage of 75%. (Creating legal exclosures on this side would also double
the total amount of fencing within this setback.) Under our proposal, the total percentage of
fencing at issue would represent only 37.1% of the perimeter of our property and the true front
yard fencing would represent only 11.7% of the property perimeter. Additionally,the
resulting single row of fencing provides a far more open setback area than would a series of
exclosures occupying up to 75% of the same area.
We are prepared to move the Midway/Klinewoods corner fencing in fifteen feet,four
inches, from outside of the shagbark hickory to inside of the tree, and to bring it as close as
possible to the curved beds, creating a meaningful corner setback of more than fifteen feet which
provides even more of our property for the deer, and makes that corner of the property even more
open. Please see Sketch#2.
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(4)Whether the proposed variance will have an adverse effect or impact on the physical or
environmental conditions in the neighborhood or district.
As noted above in Question(1), the requested variance will not have an adverse effect nor
impact on the physical or environmental conditions in the neighborhood or district. Legal
fencing has been in place on our property since 1994. That fencing did not alter habitual patterns
of any deer. The paths are to the east and west of our property, and included the use of
Klinewoods Road when we had no fencing. There are no erosion or drainage issues, nor any
other impacts that will result if this fencing remains in its current location—or, if it is relocated
back from the comer, as we have proposed.
There are no other tall property line fences on Midway or Klinewoods Roads, and no other non-
compliant fences, and none of the residents has requested permits or variances for new tall
fences. As the Board is aware, Paul Curtis said, at a public meeting about "safety" concerns
related to deer fencing, that his data is all from highway studies and the corridors he referred to
are of lengths greater than a mile. He specifically stated that one or even two or three lots in the
village would not create a corridor of concern, should they have tall fences,that fences as low as
four feet could still create the worrisome effect he described, and that whether a fence is at the
setback or the property line makes no difference as to safety. So, there is no basis for a fear that
our existing fencing poses a safety hazard.
We took a barren lot with a small house and have created a unique and beautiful environment,
enjoyed by many, which has greatly enhanced our neighborhood. Beauty and nature are critical
to a healthy and successful community environment and to the health of the community. If the
fencing is removed, the lot will revert to a barren, over-grazed state. The property would be
covered in deer feces. The value of our home and land would be greatly diminished by the loss
of twenty years of landscaping, hardscape and plantings, and our yard would be utterly unusable.
There would be an adverse impact on the neighborhood, on our micro environment, on wildlife
other than deer, and on our health and well being. This is likely to cause a negative impact on
the property values of our neighbors, as well.
We acknowledge that there is a concern with the aesthetics of our fencing(although it is
apparently minor enough that no one has ever complained). All agree that our legal wood lattice
fencing is highly desirable and increases the value of our home and enhances the neighborhood.
No one objects to the mesh extension above the wood fence, as it is virtually invisible, except in
winter, and even then, its visual impact is minimal. However,the more recent deer fencing in
question along Midway and Klinewoods does lack the aesthetic quality we want and that our
neighbors would welcome. The gates are especially problematic as they are "hinged" by zip ties.
Aesthetics are critical to us and to the degree that it is possible to achieve a quiet, stately, and
workable situation, that is what we want. We want to create fencing that will improve the value
of our home to an even greater degree, reduce maintenance problems, and provide functional
gates,while being more pleasing to the eye. Please see the submitted photos and the composite
"aluminum fencing."
As noted at the beginning of this application, we are prepared to take on the work and expense of
creating a more aesthetically pleasing fence. We have suggested that a variance could be granted
with conditions, requiring us to move the fencing back from the comer and to upgrade it
(including the gates) as we have described. To relocate and upgrade our fencing is a very
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significant cost to bear, and will require planning, hiring a contractor, and taking out a loan, but
we are prepared to do so—over the course of the next 14 months.
The replacement fence we are prepared to install would be an eight-foot-tall, aluminum fence,
matte bronze or black to blend with the environment, especially in winter, and as open as is
practical to achieve. The installation of professionally made gates will eliminate the many zip
ties acting as hinges. The gates would be essentially identical in material, color and openness to
the fence itself. We have included a composite "photo" of such an aluminum fence installed on
our property, sent via email to Brent Cross. It is accurate as to the look of the fencing, although
the super-imposed fence could not be accurately positioned.
If our fencing request is disallowed,the harm to the physical environment, our property's value,
and our health will be substantial,as will be the financial loss we will sustain.
(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).
We did not create or contribute to the deer problem. Furthermore,the history of our situation
shows the unfairness of our current predicament.
In the early 1990s, when we installed our legal four foot fencing, we consulted with the Code
Enforcement Officer. We had begun landscaping but were in the early stages of doing so. We
were told that the wood fence was in compliance, and that if we wanted to add higher, protective
fencing, we could do so as long as our immediate neighbors did not object. They did not, and so
we proceeded. That was at least four administrations ago, and,until now, each successive
administration had an expressly stated policy of non-enforcement of the then-existing fence
ordinance (which they referred to as "poorly written" and"vague").
Our front yard was planted to coexist with deer, but, given the over-population, this became
impossible. Once we were allowed to have the necessary protective fencing, we installed
hardscape and plantings along the fencing to soften and reduce the impact of the fencing. This
was sensible and encouraged by the actions and statements of our government officials,upon
which we relied, for many years, with no reason to believe that we should do otherwise. Until
now,we were never notified by the Village of any wrongdoing,nor were we ever issued any
compliance demands regarding our fencing.
The current administration went so far as to enact a moratorium on enforcement of the old fence
law, because it also recognized that that law was unenforceable as written and did not meet the
present circumstances of deer over-population and the desire of residents to have privacy and
protection for themselves, their children and their pets. This was a clear recognition of the
changing attitudes of residents and also reflected the fact that the village was now fully
developed. Additionally, the growth of trees and hedgerows, which now create virtual walls,
defeat any claim of the once desired "open feel" of the village. Yet,when the new law was
enacted, it excluded trees and hedgerows from the definition of a fence, and a provision that
would have allowed taller, property line fencing—the only realistic way to keep deer out—was
voted down. Furthermore, the new law made no provision for"grandfathering"of the many now
existing but not fully compliant fences that were erected over the past 10 to 20 or more years,
with the consent, and even the encouragement, of Village officials. Grandfathering would be the
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standard and fair approach in this kind of situation, rather than enforcement long after the fact
(with no compensation for lost investment).
Additional Requested Information
The cost of the existing fencing was approximately $6,458.00, based upon the cost of materials
at the time of installation. The total cost of the improvements we have made to our yard,
including all the plantings, is well in excess of$100,000.00. Of course, knowing that only tall
fencing could protect our yard from deer, we would not have made such an investment without
relying upon the advice and good faith of our local governmental officials, and their continued
consent for our maintaining the protection we needed.
The cost of the proposed replacement fencing and gates by a professional will likely exceed
$20,000.00. There is no real construction involved beyond the changing out of posts if we are
allowed to have a professional fence. The panels and gates are merely attached to the posts,
having been fabricated off site. If we are only allowed to retain our existing fencing, there is no
construction of any kind.
We are willing to make expensive and significant improvements and compromises; what we are
asking for from this Board is to be able to maintain the protection that the Village allowed us to
install many years ago and to maintain without complaint (until now).
In Summary
After 17 years, we now find ourselves in a situation where our substantial investment, and, in
fact, our existing way of life, can be preserved only through the issuance of a variance.
Given that your decision is to be based upon a balancing of the benefits to us versus the
detriment to the health, safety, and welfare of the community, this request should be granted.
We have described the importance of the continuation of our fencing, in protecting our health,
safety,property value, and peaceful enjoyment of our home. In fact,there is no evidence of any
significant detriment to the health, safety or welfare of the community if we are allowed to
maintain our long existing fencing. The only possible concern might be the appearance of the
non-compliant fencing, and, if the variance were conditioned as we are suggesting, it would
actually ensure a significant, professional upgrade in the aesthetics of the fencing and the gates,
and increase the setback areas and reduce the length of fencing on both public streets. We are
willing to make these expensive, significant improvements and meaningful compromises. We
see no compelling reason to cause us to suffer the unfair and unnecessary consequences from the
removal of our long-existing fencing.
Therefore, we request that our fencing be permitted to remain in its existing location, or in the
proposed location with new, professional gates and fencing, so that our gardens and yard
continue to be free of all large animals, their feces, and their destructive activities, so that Mindy
may continue to garden in safety for the sake of her physical well being, and so that we may both
continue to use and enjoy our yard and home in peace and privacy.
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21'setback 25' Sketch 1 (Existing)
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21'setback 25' Sketch 2 (Proposal)
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21'setback 25' Sketch 3 (25' Setback)
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12
Aluminum Fencing
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These are some of the beds, trees, and plantings that will be lost with
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