HomeMy WebLinkAbout2022-06-28 BZA Meetings1
BOARD OF ZONING APPEALS MINUTES
Town of Danby Board of Zoning Appeals
Minutes of Hearing and Meeting
June 28, 2022
PRESENT:
Lew Billington
Toby Dean
Ted Jones
Betsy Lamb
Earl Hicks (Chair)
OTHER ATTENDEES:
Town Planner David West
Recording Secretary Alyssa de Villiers
Public Cindy Black, Peter Brown, Andrea Butje, Leslie Connors (Town Board member),
Ted Crane, Mary Faber, Michael Faber, Joann Gruttadaurio, Katharine Hunter
(Town Board member), Lori Maratea, Ray Maratea, Rob Morache, Charles
Muirhead, Mr. and Mrs. Muirhead, Chris Napolitano, Mina Napolitano, Neal
Racinowski, Hannah Van Ostrand
This meeting was conducted virtually on the Zoom platform.
The meeting was called to order at 7:02 p.m.
1. AGENDA REVIEW
There were no additions or deletions to the agenda.
Planner West reported that there are two zoning amendments winding their way through the Town Board
approval process: one looks at adding two parcels to the Hamlet Neighborhood zone on Bald Hill Rd. and
the other would adjust the definition of industrial establishment and add the Town’s restrictive definition of
light industry to the Commercial C zone.
2. MINUTES APPROVAL
MOTION: Approve the minutes from February 22, 2022
Moved by Lamb, seconded by Dean
The motion passed.
In favor: Billington, Dean, Jones, Lamb, Hicks
3. NEW BUSINESS
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BOARD OF ZONING APPEALS MINUTES
Chair Hicks introduced the Board and explained the process.
VAR-2022-02, 204 German Cross Rd.
Parcel: 4.-1-11.22
Applicant: Charles Muirhead
Anticipated Board action(s) this month: Public Hearing, Consideration of Appeal
Zone: Low Density Residential
SEQR: Type II, no further review required
County 239 Review: Exempt
Proposal: The applicant would like to subdivide but does not have the required frontage as per
Section 603 of the zoning code. The applicant has a stated preference for 257' frontage for the
existing residence and 110' for the proposed subdivision but has an alternative split for
consideration.
Applicant’s Description
The applicant, Mr. Muirhead, showed a map of what he was proposing. He said he would like to build an
access drive that goes all the way back to the center of the subdivided parcel, where the homesite would
be. The single-family home on 18.3 acres would not be visible from the road or other properties and would
be at least 500’ from any neighboring residences. The cleared area would be small with most of the
property kept forested, and the driveway would be permeable.
Mr. Muirhead said that the code states that 200’ of frontage and two acres is needed, and the
landowner, Ray Maratea, would like to retain two acres and sell the rest. Mr. Muirhead showed that if the
proposed subdivision has 110’ foot of frontage, Mr. Maratea would have 257’ frontage. Alternatively, Mr.
Maratea could have 200’ and the proposed subdivision 167’, but then the two acres encroaches back
further. As there would only be a gravel driveway in the frontage area of the proposed subdivision, the
applicant did not feel that the subdivision would make a difference in the character of the neighborhood.
Mr. Muirhead added that his parents live across the street at 209 German Cross Rd., and he and
his family would like to help them out and be near them. His background is in environmental science and
conservation, and he does not plan to clear cut or have a big footprint. He felt the proposal would allow a
single-family home with minimal impact. The alternative would be to build on his parents’ land, but that
would have to be next to the road due to a ravine at the back of that property.
Public Comment
The public hearing was opened at 7:27 p.m.
Michael Faber said he and Mary Faber live next door at 180 German Cross Rd. Their concern was that in
the 110’ strip where the driveway is proposed, there is a swale that undergoes heavy flooding. They have
had to put in new underground drainage and raise soil levels on their own property because of the flooding.
He wondered how Mr. Muirhead would put a road in that can withstand the amount of moisture in that
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swale and said that the ecology needs to be taken into consideration. He added that if Mr. Muirhead could
figure that out, they would welcome a new neighbor.
Mr. Muirhead said he would have to bring in a hydrologist to look at what the appropriate
engineering would be. He said they did not want their driveway to wash out so they would certainly
be taking this into account and added that they were happy to reposition the driveway in that area
to accommodate neighbors.
Joann Gruttadaurio of 234 German Cross Rd. said she was impressed with the thoughtfulness of the
application and felt it addressed a lot of her concerns around environmental impact and the impact on the
community. The applicant seemed thoughtful and conscious about these issues. She thought it was good
the water issue was brought up. She said it sounded like a great idea.
Lori Maratea, one of the current landowners at 204 German Cross Rd., said their wanting to sell the land
and finding this buyer is exactly in line with their wishes because then one person can have the whole 18
acres and only put up one home.
Chair Hicks read aloud a letter from Mr. and Mrs. Brown of 190 German Cross Rd. They said there had
been a previous variance request on the property in which several adjoining property owners voiced strong
opposition and the BZA unanimously denied the variance, expressing the v iew that their number one
priority was to make sure existing landowners’ water supply was not put in jeopardy by making exceptions
to the established regulations. The Browns said they still have concerns about the dwindling supply of
potable water; they have had problems with their well and now need to purchase water for drinking and
cooking. Both Planner West and Chair Hicks said they had received a call from the Browns .
The public hearing was closed at 7:39 p.m.
Board Questions and Discussion
Chair Hicks said he spoke with Mr. Brown via phone prior to the meeting. The information that was shared
was similar to the letter, with the addition that Mr. Brown stated that they are not able to get Health
Department approval of their well water because it is contaminated with some biological organism. Hicks
thought that sounded like a surface water issue rather than an aquifer issue. Hicks said that the Town Clerk
had shared the past BZA decision that was referenced in the Browns’ letter. One detail he gleaned was that
the applicants, the Marateas, were requesting the parcel be broken into three lots, which is different than
the current request; thus, it was not apples to apples on the variance requests. He noted that Leslie
Connors was on the BZA at that time, and he asked her for her memory of it. She said that there had been
a lot of concerns about water; she did not know if any water studies had been done or if anything has
changed.
Chair Hicks allowed the neighbors present to share further comments about water, which they did. It was
established that much of the previous concern had to do with the number of potential houses and people
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BOARD OF ZONING APPEALS MINUTES
living there. Mr. Brown said he was still concerned about the drinking water issue as he had muddy water
for a long time after the last two houses were built on German Cross Rd.
Betsy Lamb said there are no further environmental requirements for SEQRA, but the water issue seems to
be an environmental issue. Planner West explained that the variance review is Type II, but if they go
through a subdivision with the Planning Board, that is an Unlisted action , and there would be a SEQR at
that time. In the Town’s water protection law, there is a threshold for requiring specific review of water
withdrawals, and that is a draw of 2,000 gallons per day or more. A typical household could expect about
60 gallons per person per day.
Lamb also asked about the driveway, saying she assumed the applicant had just drawn it straight as an
example—it would go in the most appropriate place. The applicant said it would likely be more of a
meandering forest drive to accommodate water flow and old growth trees.
Hicks asked about the preferred (110’) and alternate (167’) frontage options for the proposed parcel, and
the map was reviewed. The applicant noted that the frontage had been surveyed. In response to a question
from Lamb, the Marateas said they had no preference on the driveway and the frontage choice was not a
sticking point for them. Hicks said he had paced off the frontage and 167’ is near a garage and electric
meter; he thought a boundary there would potentially create a violation of the 10’ side setback requirement
for accessory buildings. Mr. Muirhead noted that those have no foundations and could be moved slightly as
necessary.
Toby Dean asked if there was somewhere between the 110’ and 167’ that would moderate the variance.
Mr. Muirhead expressed that whatever the Board would be comfortable with would be fine with him. Dean
added that they have had trouble with flag lots in the past, but the density on Coddington is high, with many
small, non-conforming lots.
Ted Jones emphasized that this was primarily a consideration of road frontage, but the Board needs to try
to minimize the variance and impact as much as possible. Because the requirement is 200’, he thought
having 167’ for the proposed lot would make the most sense in terms of minimal impact.
Area Variance Findings & Decision
The Board of Zoning Appeals considered the appeal of Charles Muirhead regarding the property at 204
German Cross Rd. (Tax parcel 4.-1-11.22) for an Area Variance from the zoning code Section 603, 4a that
requires 200’ of road frontage.
1. The Board agreed no undesirable change would be produced in the character of the neighborhood
or a detriment to nearby properties.
Dean thought there would not be a big change in the neighborhood and the water issue
was beyond their expertise. He felt the applicant was willing to be careful with the driveway
placement and the surface water flow and the house would be screened away. Billington wondered
whether the potential hydrological problem was their responsibility as they were charged with
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BOARD OF ZONING APPEALS MINUTES
hammering out an issue of road frontage. He did not think the road frontage would produce a
character change. Lamb agreed with Billington and Dean. Jones thought that the 500’ from other
residences would benefit the water recovery rate. Hicks answered no because of the lot’s large
size, well over the minimum.
2. The Board agreed that the benefit sought by the applicant could not be achieved by a feasible
alternative of the variance.
Dean thought it was fair to request either the 167’ or something close to that. Billington
also said he was in favor of the full 167’ of frontage. Lamb appreciated that the applicant had
provided some of the alternatives. She felt there was no other way to access the back of the
property and thought the 167’ was the least possible difference from code. Jones and Hicks felt
similarly. Planner West added that under the current zoning the owner could have a road built into
the site and have three more lots as the road would give them frontage.
3. The Board was split on whether the requested variance was not substantial.
Dean felt yes, although the 167’ would be less substantial. Billington thought not,
especially as the house would be far from other houses in the area. Planner West noted that at
167’ frontage, a building could be put closer to the road without a condition placed on the lot; with
the 110’ frontage, due to the required setbacks, a house in the pole part of the flag lot would not be
possible. Lamb said she would want a condition placed of no house in the flagpole if the Board
granted the 167’. Jones said the variance asked for is 33’, so he did not think it was substantial.
He, too, thought the discussed condition should be placed.
4. The Board agreed the variance would not have an adverse impact on the physical or
environmental conditions in the neighborhood.
Dean said that, aside from hydrological issues, he did not see an adverse impact. All
others agreed. Hicks said he would like to ask the Planning Board to consider the aquifer, if not
request the applicant provide some third-party testing or opinion showing the aquifer can handle
another single-family home without a negative environmental effect on the neighborhood. He said
there are a number of places in Danby where water is funky, and if wells are going dry, that is a
concern. Hicks asked the neighbors present if anyone’s well had gone dry, and none had.
5. The Board agreed that the alleged difficulty was self-created.
All members felt it was self-created.
Hicks asked the Board about requiring further study of the hydrology. Dean thought that would be nice to
know, but it would be a slow and expensive process for the applicant that seemed unrealistic and unfair to
require. Billington and Jones agreed. Lamb felt that the issue fit better into the Planning Board’s purview as
the BZA’s concern was the road frontage. Jones and Hicks agreed with Lamb. Hicks said he would want to
alert the Planning Board to take a hard look at the aquifer. Hicks summarized that the majority of the Board
was ready to move forward.
The Board was concerned about creating the need for another variance, so they decided to give a buffer of
20’ to avoid a side yard setback issue with existing accessory structures—thus requiring 147’ of frontage.
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BOARD OF ZONING APPEALS MINUTES
The BZA found 53’ was the minimum variance that should be granted in order to preserve and protect the
character of the neighborhood and the health, safety and welfare of the community because of all of the
above discussed reasons. The following condition was added:
1. No residence may be built in the flag pole section of the flag lot.
MOTION: The benefit to the applicant does outweigh the detriment to the neighborhood or community.
Moved by Dean, seconded by Lamb
The motion passed.
In favor: Billington, Dean, Jones, Lamb, Hicks
VAR-2022-03, 1040 Comfort Rd.
Parcel: 15.-1-11.41
Applicant: Andrea Butje and Cynthia Black
Anticipated Board action(s) this month: Public Hearing, Consideration of Appeal
Zone: Rural 2
SEQR: Type II, no further review required
County 239 Review: Exempt
Proposal: The applicants own 1038 and 1040 Comfort Rd. and would like to sell 1040. Because
the driveway at 1038 Comfort Rd. currently crosses 1040, they would like to reduce 1040 in size to
avoid needing an easement. This would make 1040 Comfort Rd. a 2.7-acre parcel with 373' of
depth, short of the 10 acres and 600' depth required in Section 602 of the zoning code.
Lew Billington recused himself from the case.
Applicant’s Description
Ms. Black explained that she and Ms. Butje purchased a number of parcels together in 2016. They live at
1038 Comfort Rd., which has one driveway, and 1040 Comfort Rd. has another driveway. Because they
have been thinking of it as one property, they did not realize their driveway, a substantial woodshed, a
manure pile, and an organic garden are actually on the 1040 lot. They would like to adjust the lots lines so
that their driveway is completely off 1040 and their garden and plantings remain with 1038. The change
would be between lots they own and there will not be any new building, so Ms. Black did not feel it would
change the character of the neighborhood. In terms of alternatives, if they moved their driveway north, it
would get close to a seasonal river, they would need to remove trees, and it is steep. It is a substantial
request because these lots were two five-acre lots and now 10 acres is required per lot. She thought there
was no effect on the environment as it is just a lot line shift. Their goal is to sell 1040 and have that be an
independent lot.
Ms. Butje said they want to respect the land and it does not seem feasible to create another
driveway because of the constraints, but also because they have a perfectly functioning driveway. The split
is very logical, but it does require a variance.
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Public Comment
Outside of the public hearing, Ted Crane commented that if “no additional development” was a condition of
granting the variance, what’s the harm in it?
The public hearing was opened at 8:53 p.m.
Charles Napolitano said he and Mina Napolitano at 1002 Comfort Rd. had no objections and thought it
made the most sense to leave the driveway where it is.
Planner West said he received several phone calls regarding the application. None expressed concern
about the substance of the variance request, only that they would prefer not to have lots sold.
The public hearing was closed at 8:55 p.m.
Board Questions and Discussion
Lamb asked about the road frontage, and Planner West said that the new zoning for these properties is
Rural 2, which requires more land area but has no frontage requirements. These parcels were in Low
Density Residential when they were created.
Dean asked if the property had been surveyed, and the applicants said no t yet, but they worked with West
to get the acreage numbers.
Jones said he noticed 1040 is for sale and asked how it is being marketed, with or without easement. The
applicants said that it is listed as the 2.7 acres with a statement that they are in the process of applying for
a variance.
Area Variance Findings & Decision
The Board of Zoning Appeals considered the appeal of Cindy Black and Andrea Butje regarding the
property at 1040 Comfort Rd. (Tax parcel 15.-1-11.41) for an Area Variance from the zoning code Section
602, 4a and 5 that requires 10 acres and 600’ lot depth.
1. The Board agreed no undesirable change would be produced in the character of the neighborhood
or a detriment to nearby properties.
Jones thought the character of the neighborhood would not be modified . Lamb, Dean, and
Hicks agreed.
2. The Board agreed that the benefit sought by the applicant could not be achieved by a feasible
alternative of the variance.
Lamb thought there were alternatives like moving the driveway and leaving the driveway
as an easement, but she did not feel they were feasible. Dean thought building a second driveway
was unfeasible. Jones and Hicks also answered “no.” Hicks thought, regarding the driveway, that
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the land starts to slope off fairly dramatically and cutting the trees and bringing in new driveway
material would be detrimental environmentally and costly.
3. The Board felt the variance was substantial.
Jones thought the widening of the flag to allow the driveway made sense to him, but he
thought the back lot line being moved forward was almost like a separate request. He thought
splitting the difference might alleviate the substantialness. He added that you really do want a
visual buffer for both places. Hicks thought 2.7 acres compared to the 10 acres was substantial , as
did Dean. Lamb said that, even grandfathered in at 5 acres, it is half of that. She asked about
moving the lot line back closer to 1038. Ms. Black said they have been trying to deal with the water
coming down the hill and the garden she built helps to act as a sponge to preserve their driveway,
so she would appreciate keeping that to be able to maintain it. Ms. Butje said they moved the line
as close to them as possible to control the drainage issue and give them privacy.
4. The Board agreed the variance would not have an adverse impact on the physical or
environmental conditions in the neighborhood.
Jones thought not at all, and Lamb, Dean, and Hicks agreed. Hicks thought moving the
driveway would have a greater impact on the environment.
5. The Board agreed that the alleged difficulty was not self-created.
All thought not. This was because of the change of zoning and the pre -existing division of
the lots.
In response to a question from Chair Hicks, Planner West said that because the Board is not exacerbating
the existing deficiency of 1038 Comfort Rd., that lot does not need to be addressed. The Board decide not
to modify the variance requested or add conditions.
The BZA found 7.3 acres and 227’ of depth was the minimum variance that should be granted in order to
preserve and protect the character of the neighborhood and the health, safety and welfare of the
community because of all of the above discussed reasons.
MOTION: The benefit to the applicant does outweigh the detriment to the neighborhood or community.
Moved by Lamb, seconded by Dean
The motion passed.
In favor: Dean, Jones, Lamb, Hicks
VAR-2022-04, 1057 Coddington Rd.
Parcel: 4.-1-17
Applicant: Neal Racinowski and Hannah Van Ostrand
Anticipated Board action(s) this month: Public Hearing, Consideration of Appeal
Zone: Low Density Residential
SEQR: Type II, no further review required
County 239 Review: Exempt
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Proposal: The applicants have an existing house on a non-conforming lot that is 100' wide. They
would like to add a bedroom and garage to the front of the home. This would increase the non-
conformity of the side and front yard setbacks as currently required in Section 603 of the zoning
code.
Applicant’s Description
The applicant, Mr. Racinowski, said they are hoping to turn their existing garage into an accessible
apartment and garage for his handicapped father to move into. They would like to demolish the garage and
the breezeway connecting it to their home and replace it with a two -car garage with an accessible bedroom
and bathroom on the rear of the garage. The connection is important to allow for easy access to a
wheelchair van and to avoid inclement weather. He introduced their designer, Rob Morache.
Mr. Morache said the lot is one of many narrow, long lots in a cluster of homes that is in a less rural
area of Coddington Rd. He showed on a map that about 60% of the approximately 35 lots in the
neighborhood are non-conforming in this area. Thus, he felt the proposal was in keeping with the character
of the surrounding homes despite being different tha n what the zoning allows. He said the backyard is
about 9’ lower than the front yard, which makes it hard to build be yond the front setback line. Building in the
front would minimize the fill needed. He showed the plans and two alternates: a single -story pushed back
and a basement garage. The pushed-back garage would put the entire thing on fill, which has technical
difficulties, and disconnect the bedroom area from the rest of the house. The basement garage would be
bigger, and so cost more to finish, need an elevator, and need more driveway. A driveway to the back
would also eliminate the greenspace between them and the eastern neighbor, creating a sea of asphalt. He
said that the proposed plan avoids these issues.
Mr. Morache said they felt a 26’ driveway was reasonable because you can back out safely. They
will need 6–7’ of fill in one corner. With zero buildable area, any variance is substantial, but from a
contextual perspective, it is not a substantial variance from the other houses in the neighborhood. This also
means there would be no undesirable change to the neighborhood. This will be a residential use causing
no extra traffic, noise, or stormwater issues. They have a topography issue and the disability of the
applicant’s father to consider, which are not self-created.
Public Comment
The public hearing was opened at 9:40 p.m.
No comments were made during the public hearing, and Planner West had not heard from anyone.
Dean asked if the neighbors on either side ae rental properties, and Mr. Racinowski said they are not.
The public hearing was closed at 9:41 p.m.
Board Questions and Discussion
Chair Hicks showed pictures of the streetview of the house. All Board members except Billington had been
to the site. He discussed where the setback starts from.
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Jones said he noticed the house to the south had a sale pending. He thought that the purchaser would
likely not be aware of the variance proceedings and felt uncomfortable with that. Dean noted there is a
notice posted on the applicant’s property.
Area Variance Findings & Decision
The Board of Zoning Appeals considered the appeal of Neal Racinowski and Hannah Van Ostrand
regarding the property at 1057 Coddington Rd. (Tax parcel 4.-1-17) for an Area Variance from the zoning
code Section 603,6 that requires a minimum front yard depth of 50’ and a minimum side yard width of 50’.
1. The Board was split on whether an undesirable change would be produced in the character of the
neighborhood or a detriment to nearby properties.
Lamb, Billington, and Dean thought not. Hicks thought not because of the neighborhood
context. Jones thought yes because of the nearby property not being informed of the change.
2. The Board agreed that the benefit sought by the applicant could not be achieved by a feasible
alternative of the variance.
Lamb thought Mr. Morache had looked at all the alternatives and they were not feasible.
Billington, Jones, Dean, and Hicks agreed. Hicks said the only way not to have a variance request
would be if they used the same exact footprint.
3. The Board agreed the requested variance was substantial.
Lamb said yes, although the lot truly has no buildable space. Billington, Jones, and Hicks
also thought so. Dean agreed but pointed out that the north setback that is not changing is also
well under the requirement.
4. The Board was split on whether the variance would have an adverse impact on the physical or
environmental conditions in the neighborhood.
Lamb and Dean thought not, and Billington thought it might improve it. Jones answered
yes because, thinking of the person who will be buying the house next door, they may well think
yes. Hicks thought it would not because it was one extra bedroom with no additional septic or
kitchen. Lamb added that it was similar to other houses in the area in terms of how close it is to the
road and its side boundaries.
5. The Board agreed that the alleged difficulty was not self-created.
Lamb thought not because it was an unbuildable lot that came with a house on it. Jones,
Billington, Dean, and Hicks agreed.
There was discussion of the future neighbor and what the obligation was regarding notification. It was
decided that, while unfortunate that the purchaser might get a surprise, the person’s opinion could not be a
deciding factor. Planner West added that the job of neighbors is to provide information to help understand
special conditions of the site or potential detriments and mitigations.
The BZA found 26’ from the side yard setback and 24’ from the front yard setback of depth was the
minimum variance that should be granted in order to preserve and protect the character of the
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neighborhood and the health, safety and welfare of the community because of all of the above discussed
reasons.
MOTION: The benefit to the applicant does outweigh the detriment to the neighborhood or community.
Moved by Lamb, seconded by Billington
The motion passed.
In favor: Billington, Dean, Jones, Lamb, Hicks
ADJOURNMENT
The meeting was adjourned at 10:09 p.m.
___________________________________________
Alyssa de Villiers – Recording Secretary