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HomeMy WebLinkAbout2022-11-22 BZA Minutes1 BOARD OF ZONING APPEALS DRAFT MINUTES Town of Danby Board of Zoning Appeals Minutes of Appeal and Hearing November 22, 2022 DRAFT PRESENT: Lew Billington Toby Dean Ted Jones Betsy Lamb Earl Hicks (Chair) OTHER ATTENDEES: Town Planner David West Recording Secretary Alyssa de Villiers Public (in person) Warren Cross, David Parks, Julian Pettaway, Tim Pettaway, Connie Sczepanski, Gene Sczepanski, Jim Sczepanski, Jamie Sorrentino Public (virtual) Katharine Hunter (Town Board member), Cindy Katz, David Marshall, Lynn Rathbun, Tomo Shibata, Henrik Spoon This meeting was conducted in person with virtual access on the Zoom platform. The meeting was opened at 7:02 p.m. (1) CALL TO ORDER/AGENDA REVIEW The minutes were not complete, so this agenda item was delayed until the following meeting. (2) PLANNER’S REPORT No Planner’s report was given at this time. (3) NEW BUSINESS VAR-2022-07 54 East Miller Rd. Parcel: 7.-1-27.1 Applicant: Jim Sczepanski 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 2 BOARD OF ZONING APPEALS DRAFT MINUTES Proposal: The applicant would like to achieve something similar to a subdivision by annexing most of the parcel to a contiguous lot across the street under common ownership. The result would be a remaining lot of 2.37 acres, which is smaller than the allowed minimum lot size of 10 acres. The remaining lot is immediately adjacent to the Hamlet Neighborhood Zone. Project Description Gene Sczepanski noted that the relevant information for the five tests was in the application. Planner West showed a map of the property. He explained that the created lot would be less than the 10 acres required for the zone, and the applicant would be keeping the land around the house as small as possible to allow for continued farming in the field behind it. He noted that the neighboring parcel is on the edge of the Hamlet Neighborhood, where there is no minimum lot size. Betsy Lamb asked about the road frontage on the portion of land that would connect with the parcel across the road; the answer was 60’. Public Comment Chair Hicks invited the public to speak on the current case and any other case. The public hearing was opened at 7:12 p.m. David Parks (1543 Danby Rd.) said that his property borders the western side of the parcel in question in the Sczepanski case. He said it was Walt Sczepanski’s wish to bequeath the house to Connie Szcepanski. He had no objection and was happy that the rest of the property would remain as farmland. David Marshall said he was at 371 East Miller, across the street and just up from the 360 E . Miller Rd. case. He said he thought four lots on the parcel was too much, particularly in terms of the number of wells. Lynn Rathbun (350 East Miller Rd.) commented on the 360 E. Miller Rd. case. He thought that it was a severe deviation from the current zoning and was not consistent with the prior zoning or the Low Density Residential zoning or the Comprehensive Plan. The public hearing for the Sczepanski case was closed at 7:20 p.m. Board Discussion Betsy Lamb pointed out that the Board was only considering the fact that the parcel to be separated would be less than ten acres in size. Toby Dean noted that the lot around the parcel to be sep arated will be a flag lot on that side of the road. Lamb asked about bringing the edge of the property to a tree line on the property, and Gene Szcepanski said he thought that could add two acres. 3 BOARD OF ZONING APPEALS DRAFT MINUTES Area Variance Findings & Decision The Board of Zoning Appeals considered the appeal of Jim Sczepanski regarding the property at 54 East Miller Rd. (Tax parcel 7.-1-27.1) for an Area Variance from the zoning code Section 602.5 that requires ten acres for lots in the Rural 2 zone. 1. The Board agreed no undesirable change would be produced in the character of the neighborhood or a detriment to nearby properties. Jones said there would not be any change outside of a property line. Lamb noted that there are other small lots nearby and it is right on the edge of the zone line. Dean and Billington agreed. Hicks thought you would not even know that it had happened; there would be a greater change if the land was transformed into something else and not farmed. 2. The Board agreed that the benefit sought by the applicant could not be achieved by a feasible alternative of the variance. Jones said the field was big enough to carve off a ten -acre lot, but that would cut into farmland, and if the intent is to protect the farmland, that is not feasible. He pointed out that in the Comprehensive Plan, the Town says it wants to preserve farmland as best it can. Lamb, Dean, Billington, and Hicks agreed. Dean added that it could be a little bit bigger, but it would then still be cutting into the field. 3. The Board agreed the requested variance was substantial. All agreed that 2.37 acres compared to 10 acres was substantial. 4. The Board agreed the variance would not have an adverse impact on the physical or environmental conditions in the neighborhood. Jones said that there would be no new construction or modifications other than the creation of the flag lot, which there is no prohibition on. Dean added that it was close to the hamlet, with similar-sized lots on the street. Lamb, Billington, and Hicks agreed. 5. The Board agreed that the alleged difficulty was self-created. All Board members agreed it was self-created, although Dean noted that one answer in the applicants’ application said that it was approved by previous zoning. The BZA found 7.6 acres 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. A condition to count this as one of the six development lots allowed from the parent lot was discussed. That would allow the parent lot to only be divided into a maximum of five lots in the future. Gene Sczepanski thought this would add more red tape. After weighing the possibility, the Board decided not to impose a condition. MOTION: The benefit to the applicant does outweigh the detriment to the neighborhood or community . Moved by Dean, seconded by Lamb 4 BOARD OF ZONING APPEALS DRAFT MINUTES The motion passed. In favor: Billington, Dean, Jones, Lamb, Hicks VAR-2022-08 60 Hornbrook Rd. Parcel: 7.-1-92.1 Applicant: Timothy Pettaway Anticipated Board action(s) this month: Public Hearing, Consideration of Appeal Zone: Hamlet Neighborhood SEQR: Type II, no further review required County 239 Review: Exempt Proposal: The applicant would like to build a 3600 sq.ft. garage. In the Hamlet Neighborhood zone; there is no limit on garage size, but garages over 1000 sq. ft. must meet 50' side and rear setbacks. Chair Hicks read aloud the description of the Hamlet Neighborhood zone. Project Description The applicant, Timothy Pettaway, explained that he would like the garage in order to keep the yard neater and have room to work in the shop. He said that the way the lot is set up, it is not possible to meet the zoning requirements with the size of garage he would like. He consulted with his neighbors and did not hear of any problems. He is proposing a 60’x60’ building based on what he believes he needs. It will be roughly 16’ in height. He noted that he had provided prints. He explained that the location was chosen to give the neighbors privacy and he plans to put shrubbery and fencing for a barrier. He said he was also trying to minimize the number of trees cut; one oak will be going, but they will be adding other trees and landscaping to the property, keeping current blights and diseases in mind for species selection. Dean asked about the strip delineated for the driveway, and Mr. Pettaway explained that he owns three parcels there. Lamb asked about access for the building, and Mr. Pettaway showed how he would extend the driveway rather than building new. In response to a question from Dean, Mr. Pettaway said the septic is in the front and the well is behind the house. In response to a question from Billington, Planner West showed that there would not be a big impact to the neighbor to the north as that property is the back end of a property on 96B and is a wetter area. In response to a question from Hicks, Mr. Pettaway said he had spoken to his neighbor to the east, who did not appear to have an issue with the project. Public Comment The public hearing had been opened earlier in the meeting. Planner West said he had received no comments from neighbors. No one commented regarding this case during the public meeting. 5 BOARD OF ZONING APPEALS DRAFT MINUTES The public hearing for the Pettaway case was closed at 8:00 p.m. Area Variance Findings & Decision The Board of Zoning Appeals considered the appeal of Timothy Pettaway regarding the property at 60 Hornbrook Rd. (Tax parcel 7.-1-92.1) for an Area Variance from the zoning code Section 512.1c that requires a 50’ rear and side setback for garages over 1,000 sq.ft. 1. The Board agreed no undesirable change would be produced in the character of the neighborhood or a detriment to nearby properties. Billington said that at the site looking to the east with all the leaves off, it was still thick enough that neighboring dwellings were shielded even with only a 15’ setback. He thought maintaining all the equipment with a garage for storage and work would be an improvement to the neighborhood. Dean agreed and said that from the road he could not see where the proposed building would go. Lamb pointed out that it is in an interesting neighborhood in that there are houses in many different locations on their lots; she did not think it would be out of character. Jones was pleased the neighbor to the east was so far forward from where the building would be located. Hicks did not think the building would be visible from the road at any time of year. 2. The Board agreed that the benefit sought by the applicant could not be achieved by a feasible alternative of the variance. Billington thought that with consideration of the septic, well, and driveway location, there was not a feasible alternative. Dean thought it would be more driveway than yard if it was shifted to the west. Lamb, Jones, and Hicks agreed with these statements. 3. The Board agreed the requested variance was substantial. All agreed that 15’ compared to 50’ was a substantial amount, although not unreasonable due to the unusual shape of the property. 4. The Board agreed the variance would not have an adverse impact on the physical or environmental conditions in the neighborhood. Billington, Lamb, and Jones thought it would not. Dean thought the applicant’s answer — that it is isolated physically and geographically—from other houses was concise. Hicks added that if it was shifted, it would have the same impact; Lamb thought maybe even more as more trees would need to be cut. 5. The Board agreed the alleged difficulty was self-created. Billington thought yes, but it was necessary to improve the property and the business. All Board members agreed. Lamb thought it did not make sense to build a smaller garage. In response to a question from Hicks, West explained that the new zoning increased setbacks for larger accessory buildings. The BZA found 35’ 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. No conditions were added. 6 BOARD OF ZONING APPEALS DRAFT MINUTES 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: Billington, Dean, Jones, Lamb, Hicks VAR-2022-09 360 East Miller Rd. Parcel: 6.-1-18.114 Applicant: Tomo Shibata Anticipated Board action(s) this month: Public Hearing, Application Review, Refer to Planning Board, Declare Lead Agency Zone: Rural 2 SEQR: Unlisted County 239 Review: This action will require review. Proposal: The applicant would like to divide a four-acre lot into four one-acre lots. The minimum lot requirement for the zone is ten acres. Chair Hicks asked if anyone needed to recuse themselves, and no one did. He noted that he lives on East Miller Rd. but is not an immediate neighbor. Project Description Planner West shared a sketch from the applicant. He said the applicant originally purchased eight acres and subdivided into two four-acre lots, one of which she sold. The applicant petitioned the Town to further subdivide but has been denied. The current proposal is for a lot -size variance to allow for four lots with a private road serving them. This would require a variance from the ten-acre minimum lot size. There is not a frontage requirement in the Rural 2 zone. Previously, this was zoned Low Density Residential, and the amount of subdivision allowed was controlled by road frontage; now the only control is on acreage. Ms. Shibata asked if the Board had received her added responses for the balance tests, which they had. She said that the Comprehensive Plan and SEQR refer to the suitability of the parcel and whether it is part of the flooding zone, and this parcel passes every test. She said she would like to subdivide to make a small development of residential plots. She noted it was not next to a vulnerable aquifer or animal corridors. Public Comment The public hearing had been opened earlier in the meeting, and the public was invited to comment again at 8:35 p.m. Jamie Sorrentino (595 Nelson Rd) said he is located on the corner of Nelson and East Miller Rds. He said the area is surrounded by open grasslands and sweeping vistas; it has been established as Rural 2. He read the purpose of this zone. He said the request is neither reasonable nor in keeping with the area. This 7 BOARD OF ZONING APPEALS DRAFT MINUTES zone requires ten acres, and the lot is only four acres. This could mean four wells and four septic systems on a lot where there should only be one well and one septic system . He felt four dwellings would erode the habitat for grassland birds. He then addressed the applicants’ arguments for building. He said the main argument of the applicant is that they do not agree with the Rural 2 zoning, but this is the law. The applicant argues that many lots are not on ten-acre parcels, but many property lines were created before the current zoning. He said the laws are in place to prevent this from happening. Also, the applicant argues that Rural 2 is ripe to meet housing shortages, but there are other zones in Danby for the purpose of accommodating suburban sprawl. He noted that the community put much time and care in putting together the current zoning. Warren Cross (580 Nelson Rd.) said he was in opposition to this variance, and the subdivision should not be entertained for the following reasons: A. It runs counter to the preservation of rural character; B. The property has impermeable clay that would not support four wells, four septic systems, and four driveways ; C. Wildlife has been negatively impacted by the amount of development already present, and s everal grassland bird species are now in the stressed category; D. Punching four wells in such close proximity could jeopardize all the wells in the area; E. Greed is not a compelling reason to subvert existing laws for an absentee owner; F. The owners adjacent to the property have made their home there and have invested in the rules that should apply to everyone with exceptions only made for the common good. Katharine Hunter, a member of the Town Board, said she had heard this request in different forms already. As an individual in the Town, she appreciated the points made by Mr. So rrentino and Mr. Cross. The property is not close to the Hamlet Center or Neighborhood. As a citizen, she felt that it was not good for the Town. Planner West said he had received a letter from Carol Bushberg. He read the letter aloud. Ms. Bushberg was in enthusiastic opposition to the subdivision and said that any houses built would be visible from her house. Planner West also read aloud a letter from Henrik Spoon. Mr. Spoon said the intent of the applicant was to sell the parcel for financial gain. He was in opposition to the proposal. The public hearing for the Shibata case was closed at 8:49 p.m. SEQR Discussion Planner West said that because the applicant is requesting a subdivision, it requires review under the State Environmental Quality Review Act (SEQR). The BZA or the Planning Board could be lead agency under SEQR; he suggested the possibility of a joint review. He added that the BZA cannot rule on the variance until SEQR has been complete. West said that, through SEQR, the BZA must evaluate whether there is no significant environmental impact, there is a significant impact that can be mitigated, or there is a significant impact that cannot be mitigated. Any one of these three scenarios could lead to approval or denial of the variance. 8 BOARD OF ZONING APPEALS DRAFT MINUTES Board Discussion Chair Hicks asked if Ms. Shibata would like to continue with her appeal after hearing her neighbors’ responses, and she said she would. She said she objected to a number of the comments made, including to the impermeable clay, a substandard septic, and the implication that the bird species needed her particular property to survive. She said there are three lots less than one acre in size next to each other very close to this property. Hicks said he was aware she had asked the Town Board for eight half -acre lots. He asked about her decision to scale back to four acres. Ms. Shibata said she felt that the neighborhood center would not pass the SEQR tests for the various reasons she had listed in her application, and the Town should reconsider whether the zoning is appropriate. Hicks explained that the recent zoning was a transparent and open community-wide effort that was not dictated by individuals. Jones asked if the existing four-acre lots could have a house, and West said yes. Dean said he did not think the information provided guaranteed that septic and wells would be workable. Area Variance Findings & Decision The Board of Zoning Appeals considered the appeal of Tomo Shibata regarding the property at 360 East Miller Rd. (Tax parcel 6.-1-18.114 ) for an Area Variance from the zoning code Section 602.5 that requires ten acres for lots in the Rural 2 zone. 1. The Board agreed there would be an undesirable change would be produced in the character of the neighborhood or a detriment to nearby properties. Dean thought there would be changes both visually and possibly with water supply and the intensity of septic systems. He noted that there is no other clustered housing on such a small space in that area. Billington said he was worried about more wells in reference to the aquifer already being used, traffic issues, septic issues, and access for the fire department. Lamb said the houses that are grandfathered in from previous zoning would not be allowed now either. Jones said it would have a substantial negative impact on the character of the neighborhood. Hicks agreed and added that a neighborhood is your neighbors, the perception of driving down the road. This is impacted by traffic. He felt that considering the amount of thoughtful work that went into the new zoning regulations, this project would move in the opposite direction of the intent and the goals of those changes. He added that it would also have been restricted by the previous zoning. 2. The Board agreed that the benefit sought by the applicant could not be achieved by a feasible alternative of the variance. Billington, Jones, and Hicks thought that there was not a feasible alternative to the applicant’s desired outcome. Dean said a single home would work and fit with the character of the neighborhood. Lamb did not see any way to put that number of lots in that space in this zone. 3. The Board agreed the requested variance was substantial. Dean said he thought it was the most substantial request they had seen. 9 BOARD OF ZONING APPEALS DRAFT MINUTES 4. The Board agreed the variance would have an adverse impact on the physical or enviro nmental conditions in the neighborhood. Billington said that the Town tried to establish zoning practices that would take into effect the forest and farmland the Town has left and establish the hamlets so not all the land is usurped; granting this kind of variance would fly in the face of everything people were working for. Dean said the use of water would be a big physical effect; there have been cases where new wells even on large lots have affected others’ water, and this would be such a high concentration of wells. He noted that there were many negative responses, and while that was not a deciding factor, it was a measure of opposition to the conditions in the neighborhood. Lamb said the precedent setting for dividing it into so many lots would be a negative for the whole area. Jones and Hicks agreed. Hicks added that from an environmental perspective, each landowner could then decide to pave, which would have a profound impact on the watershed and water absorption. 5. The Board agreed the alleged difficulty was self-created. Billington thought the history showed the applicant could have considered other alternatives earlier. Lamb reiterated that the previous zoning would not have allow the project either. Hicks said that, looking at the history since 2014, it has been a continual moving target. Chair Hicks summarized that all the tests were agreed upon in a negative direction. He asked why they would use time and money to pursue further environmental review under these circumstances. Planner West answered that this is the process—the Town must complete SEQR before taking any action. The applicant said she would prefer the SEQR review. The Board discussed taking on lead agency, and they felt the Planning Board had more experience with this process. The Board said they were comfortable with the Planning Board being lead agency. The Board decided to fill out the Part II Short Environmental Assessment Form (SEAF) with their thoughts and share that with the Planning Board for their consideration. Questions 1-3, 5, and 7-11 were marked moderate to large impact may occur; answers 4 and 11 were marked no or small impact; the answer to 6 was not known at this time. MOTION: The BZA resolves, having filled out Part II of the SEAF, to submit that to the Planning Board for review, and for the Planning Board to be lead agency. Planner West will consult with legal counsel about proper procedure. Moved by Dean, seconded by Billington The motion passed. In favor: Billington, Dean, Jones, Lamb, Hicks (5) ADJOURNMENT The meeting was adjourned at 9:52 p.m. ___________________________________________ Alyssa de Villiers – Recording Secretary