Loading...
HomeMy WebLinkAbout1993-02-02 TOWN OF DRYDEN ZONING BOARD ' OF APPEALS FEBRUARY 21 1993 INFORMAL DISCUSSION WITH TOWN ATTORNEY MAHLON PERKINS REVIEW POLICY - PROCEDURES MEMBERS PRESENT : ANNE EVERETT , DOMINIC BORDONARO , ALAN LAMOTTE , JOSEPH JAY AND CHARLES HANLEY . Also presente Jean Ryan , Recording Sec . and Henry Slater , Zoning Code and Enforcement Officer . J . Ryan : My question is during deliberations , does all that wording . go in ? Mr . Perkins : Yea J . Jay : In our discussion and that all goes in the minutes ? Mr . Perkins : Sure . Ryan : Just like it i s . Mr . Perkins : I think these are good . . ( indicating Jan . minutes ) J . Jay : Then we ' ll have to tend to intimidate what we say at all , or have we got to behave . Marge Schott didn ' t think what she was saying would come back to haunt her : Mr . Perkins : Well . You ' re under the same kind of close scrutiny as all the NFL and major league base ball owners , what can I . tell you . . One thing . I did notice and I would caution about an the appeal hearing , appeal fact . hearing , now it is probably the appropriate result , but yoLi ' ve , got to make the findings . You can ' t just make one finding that the variance , was minimal . Yo. u ' ve got to itemize what your finding . OK here ' s the property , it ' s in an R . B . zone or where ever it is . That they are required to have 125 feet of frontage . They got 124 . 21 121 or what ever , that they have plenty of acreage , the lot otherwise m. eets the requirements . That. they may have been operating under the misconception of where the frontage is measured from . It ' s consistent with the character of the neighborhood . Put down all the things that support your determination . It ' s no good if 2 / 2 / 93 Pg . 1 their in your mind . No Court is going to say will they probably thought this . That ' s what the purpose of the record is for . You have to demonstrate the factors that went into your determination . Findings that you made so that the result follows from your findings . J . Jay : OK worst case scenario . Someone comes back , Obvious when we grant 'something their not going to come back and sue . Neighbor comes back , or someone else comes back and says ' Gee , two miles away you let thelPlatts do it , so they were 7 inches short , I ' m 70 inches short and you . didn ' t let me do it . That ' s sort of protecting ourselves from someone else . Mr . Perkins : That happens and maybe there is a problem with a neighbor , maybe the 'neighbor has enjoyed a vacant field there for 30 years , and doesn ' t want to see a house built there , because it wrecks their view . It' doesn ' t matter who the plaintiff is , you ' re not going to win that case . You ' re going to make it get kicked back to you . Got to make the findings . One finding , then another , number them . What you find . What was proved to your satisfaction . Ryan : Because it was quite Cut and clear , there wasn ' t even any a lot of discussion , if you notice . That was onelof the shortest minutes . ( variance for ) Mr . Perkins . I understand , and my point is the result is easy . But what you ' ve got to do is you ' ve got to make sure the record supports the result . J . Ryan : That wasn ' t even brought out with the discussion . You know sort of was but not really . A . LaMotte : Mahlon , you said , you just made reference to something here that I have wondered about over the years , where you ' ve got a neighbor that ' s unhappy . The very type of thing that you just suggested , so he comes in with all this Mickey Mouse Stuff , he doesn ' t say that I don ' t want my view blocked . How much weight should that carry in our individual thought process in making our discussion ? Do we , where it ' s so obvious that , you know , that he ' s just in here pitching with nothing really substantial that you pick llp in the zoning ordinance . 2 / 2 / 93 Pg . 2 Mr . Perkins : I think that what is appropriate Nick , is if you make some statement to your findings . That a neighbor to the west appeared in opposition , but we find that you know , there weren ' t any legal grounds or there was an illegal bases to his objections and just did not desire to have the land built on for any reason . You know pay lip service to it , so ,the record shows that you heard him , but that you discounted . A Court will see that for what it is , based on the record . You ' ve got a record like this ( holding up a draft of Jan 93 minutes ) and you ' ve made that finding a Courts going to see that . Their going to recognize it , for what it is . J . Jay : Somebody what is just . . Mr . Perkins : Right A . LaMottes Because that ' s frequent . Mr . Perkins : Even if a claimant makes a case and there are two people here and their the only people who speak and they both speak against it, , that doesn ' t stop you from granting it . If you make all yoLW findings and determinations . The important thing is to 'ldevelope a record . Now your to a point where you ' ve got good minutes , so what I would expect to see , now what you ' ve got to do is , you ' ve got to firm up your procedure . A . Everett : OK and that ' s were we fall apart , right there . we could not connect things then . . . list our findings , and agree upon our findings which would support either a vote for or against and that ' s why we adjourned that hearing . J . Jay : It ' s not , I think at the time there was four of Lis here J . Ryan : There were five , but one was abstained . J . Jay : No , no he wasn ' t here . We ' re talking about going back to the Marash one now ? A . Everett : ( indicated yes ) Jay : ( looking at C . Hanley ) ° You weren ' t here last month . J . Ryan : Yes he was . . . . but abstained 2 / 2 / 93 Pg . 3 Jay : But you abstained , so there were only four people voting . We votled two in favor , you ( A . Everett ) against , and Nick ( A . LaMotte ) said he didn ' t have a problemi;with it he wants to find out if you ( Mr . Perkins ) have a problem with i t . A . LaMotte : That was Dom ( D . Bordonaro ) . J . Jay : Yea , Nick was in favor . A . Everett : But your findings that you wanted to list is what I didn ' t agree with , that ' s the problem . We had a difference in listing the findings , after we gathered all of our information . Mr . Perkins : Well you can findings that , you don ' t have to have unanimity in findings . I mean you can take a little straw pool . J . Jays That ' s what we did . Mr . Perkins : I would like to see a finding that the applicant did have atj, least 55 feet of frontage upon which a 15 foot access road could have been constructed but he sold . J . Jay : But he couldn ' t have done that , I mean in this case . Going right to this case . Mr . Perkins : No . I am just giving you an example without regard to the merits of it . J . Jay : Right . A . Everett % Well he could have done that , that ' s what I contend . He had that ability to do that . before he sold his road frontage . before he sold that parcel . J . Jay : Regardless of that he still has to come in from where his right - of - way is . The granted right - of - way through the other people because the geography of the land does not , he could have kept , he gave away 1500 feet for a dollar on his attorney ' s advise , saying well you can ' t use that for road frontage . If you ' re going to sell the house keep the land back but get the right - of - way . His attorney was wrong . He was wrong not to do it Perkins : Yes , all you need is 125 feet . J . Jay : And if he had 125 feet , it ' s through a big ravine . 2 / 2 / 93 Pg . 4 N . Perkins : It ' s not where he comes in from . �I J . Jay : Right . But that ' s done . He ' s already done . Mr . Perkins : He doesn ' t have to come to you for permission . J . Jay : Right , but he already 'ildid that before he came here . So we have to . go from here . A . Everett : So that ' s a self imposed hardship . N, J . Jay : But this is not a useivariance , this is an area variance and it ' s not ,ilike where we have our , we ' re not as constrained . We can go be what the neighborhood , you ," know A . LaMotte : Does the frontage have to be contiguous , Mahlon ? Mr . Perkins : Contiguous to the rest of the parcel ? A . LaMotte : Right . Mr . Perkins : Yes . In other words , Ilso he doesn ' t have to come here . LaMotte : Yes , in other words , it he had kept a three foot strip along the highway with another three foot strip going along the depth of his property this would not have been usable for anything , would not have been buildable , would not have been accessed but he would have had the legal frontage required . In other words , it wouldn ' t have had to been the hundred and x number of feet the full depth of this piece of property . Mr . Perkins : Right , we don ' t have any , Henry correct me if I ' m wrong , but I don ' t think there ' s anything in the ordinance which requires that a lot be regular at a 125 feet ,; width all the way back to the usable portion . H . Slater : Just says has 125 feet . . . Mr . Perkins : You just have to have ' 125 feet of frontage . J . Jay : Flag lots . We have been through that in the Village . Perkins : Yea . The question is ';!, what is the legitimate concern of the Town . " If he ' s met the frontage 11 and he ' s got enough area , who cares where the frontage is . The idea is not to allow situations like this , Ior not to , hopefully they don ' t present themselves . 14 2 / 2 / 93 Pg . 5 LaMotte : All right . If that had been 100 feet here , somebody else property here , and he owned behind the second property with the other 25 feet over here , would that , would either of you clarify that ? H . Slater : He had 125 feet here narrowing down to 25 then going back to . A . LaMottee No . That he had 100 feet here . Somebody else property is in ' here . He owns around here and he picks up the. other 25 here . There connected but there not immediately contiguous on the frontage . J . Jay : No you have to have 125 feet continues frontage . You can ' t have 5 feet jumped all over the place . H . Slater : That ' s the way you have in the pass , always answered that question . A . Everett : It just seems to be a basic difference in philosophy , Nick . I have absolutely no difficulty understanding this and saying that you know , we take , we go through , we go over here to Town Law with copies you ( Atty . ) gave US , and then we also have another book that we ' re Using and it says that if the , whether the requested area of the variance is substantial , this is very substantial , the man doesn ' t have any road frontage . Then whether the alleged difficulty was self created ? This was definitely self created , and on those two things I would say you deny the variance . And others on the Board don ' t seem to view it that way . They seem to think that this is something that can be granted because it ' s not going to disturb anybody . A . LaMotte : Well isn ' t this why we have more then one person making this .decision ? J . Jay : This is why we 're appeals . We ' re the Board of Appeals . This is a unique situation . It is self imposed . A . Everett : But we have the laws now . Since July 92 things have kind of been tighten up and we don ' t have too much lea way . e„ 2 / 2 / 93 Pg . & Jay : and he goes back to his attorney , he goes back to the guy , the guy he sales the 1500 feet of frontage and he says OK for a buck can you sell me back the 125 feet this ravine . Now we have another line in a map , it doesn ' t mean anything though , he is going to do the same thing . It ' s unusable , undevelopable technical road frontage and he will probable end up doing that if he! doesn ' t get this variance passed , but I think it ' s just a technicality Just a line on a map , the drive way still got to go Mr . Perkins : Jay , Jay , all right . If you use that argument then every aspect of the Zoning Ordinance is a technicality , where do you draw the line . J . Jay : OK that ' s what he got denied . OK but when I say a technicality if he had it , it ' s still is not going to affect the bottom line . If he goes back and gets that 125 feet of frontage , everything is still going to look the same . A . Everett : We don ' t know that . Jay : Yes , he can ' t put a road there . Unless that land stays vacant forever , and it ' s a nice piece of property and they ' ve gone through a. lot of work to protect it and keep it a nice piece of property and I just say we live in a small Town like this so we can have some kind of compassion for people that get themselves in a bad situation . It is a unique situation because of the geography of the land . A . Everett : It is not . He sold his one piece that have him access . He sold it a couple of years ago . Jo Jay ; It doesn ' t give him access . It get ' s him pass our Board and he did it on his attorney ' s advise . A . Everett : The parcel that has the 55 feet . Perfect access back to the back 40 , back 80 what ever it is . That ' s what I don ' t understand . J . Jay : Yea , he sold it with the contingency to keep , he keep the right - of - way on that . 2 / 2 / 93 Pg . 7 r Perkins : Let me just make two comments to you . One is this is not only an appeal from the provisions of the 7_ oning Ordinance but it ' s an appeal of the provisions of section 280 - al of the Town Law which says ' No permit for the erection of any building shall be issued unless a street or highway giving access to such proposed structure has been duly placed on the official map or plan , unless such street or highway has an existing State , County or Town Highway , etc . etc . etc . . ' I mean , this is in addition to the Zoning Ordinance Requirements . I want you to keep in mind this is not just an appeal for insufficient road frontage . This is an appeal for no road frontage , and under 280 a of the, Town Law ' When the enforcement of the provisions of this section would entail practical difficulty or unnecessary hardship etc . , etc . etc . ' he can appeal to your Board . It says here the Board may in passing on such appeal make any reasonable exception and issue the permit subject to conditions that will protect any future street or highway layout and then of course your discussion is appealable further . This section also specifically incorporates other zoning procedures by reference . And then goes on to define in subdivision 5 for the purposes of this section the word ACCESS shall mean that the plot on which such structure is proposed to be erected directly abuts such street or highway that has sufficient frontage there of to allow the ingress and egress of fire trucks , ambulances , police cars and other emergency vehicles . And a frontage of 15 feet shall presumptuously be sufficient for that purpose . J . Jay : We discussed that at the meeting last month and we said if we get the variance it still has to go through Henry to make sure the fire trucks can get back there . It doesn ' t mean they can just go build , and they know people do . M . Perkins : What this section of the Town Law does , let me just give you some of the language which different Courts have quoted in interpreting this ; provision of this section requiring that road giving access to proposed structure be suitably improved before building permit may be issued is concern with the problem of Community planning , and the design to secure uni. form and harmonious development of growth . That ' s back in 1952 . 2 / 2 / 93 pg . 8 . Perk ins : Purpose of this section requiring that road giving access to proposed structure be suitable improved before a building permit is not only to protect the health and safety of the general welfare of the community but also to protect residence of proposed structure . Under this section requiring that road giving access to proposed structure a suitable improved before a building permit be issued : No particular form of physical access between such roadway and proposed str ►_► cture is required but some reasonable form of unobstructed easement of access must extent from each proposed structure to a street and not merely to a portion of a plot on which structure is to be built . So what they ' re saying is you ' ve got to have some reasonable unobstructed easement access to the public road . J . Jay : And they have that . A . Everette How can you_► say they have it ? J . Jay : It ' s in the deed . When they sold the people , no , no we ' re not talking about road frontage now . He ' s talking about reasonable access to the road . When they sold that land to the people that came in here , they sold it and there is the right - of - way with it . What is it 20 feet road all the way back , it goes back a couple thousand feet . That is legally done . They ' ve got the right - of - way on the property that they sold . A . Everett : That is not reasonable , if your listening to what Mahlon said . J . Jay : Sure it is . That ' s reasonable access to the road . Mr• . Perkins ? What ' s the mature of the access ? J . Jay : It ' s a right - of - way right now . It ' s going to need dozer work but that ' s not up to us . That ' s up to Henry to approve and Mr . Perkins : Does it have some provision about fences or things like that or gates or something , did I read in there ? Jay : No . The lady that was wondering , she was concerned because she does have a couple ponies . 2 / 2 / 93 Pg . 9 LaMotte : Somebody had told her that she was going to be responsible for paving this perhaps , for fencing it and I don ' t know where she was getting her , but she was really hypered about some misinformation that people have been giving her for the consequences of this drive way going back through there . C . Hanley : Do we , one of the things I wondered about last week , she obviously made a mistake . She has already given them the right if they wanted to , to build this kind of highway that Henry I ' m sure would insist on . Now she was real upset when she realized that she ' d made that mistake . Now do we take that into consideration as opposition ? She ' s already blown it in essence . J . Jay : She ' s already given the right — of —way . C . Hanley : But she didn ' t realize what she had given and she was very upset when she realized what they were going to have to do if they were to get; this . Does that count as neighborhood opposition ! Mr . Perkins : Well certainly it counts as opposition because it ' s not something she anticipated when she did that . C . Hanley : No she certainly didn ' t . J . Jay : They sold her the house . Mr . Perkins : On the other hand it ' s not up to you to enforce her private property . but you certainly . can count that in opposition , that ' s exactly what it is . C . Hanley : And one other thing . You were making a point that this is not really an easing of the zoning code because there is absolutely no frontage . If this was to , be granted are we possible opening ourselves up for legal action for anybody who has ever been denied ? If we grant a variance for no road frontage ? Mr . Perkins : Well not for anyone because , certainly the statute of limitations is probably run . You certainly are setting a precedence , I would urge you very cautiously where you have a similar set of ' facts . I think what is the most troublesome of this whole case is the applicants representation that he didn ' t know there was a Zoning Ordinance . I don ' t buy that for one second . , 212I93 Pg . l@ Tay : I do . I ' ll tell you why . Mr . Perkins : These are college graduates . J . Jay : No . He went by the advise of his attorney . He gave away 1500 feet of frontage for a dollar so he could get a couple feet of easement from another side . Mr . Perkins : Yea , this guy is so naive that he knew exactly what tax benefit he was getting when he made this conservation easement and if you think that property is accessed as prim development , you better go check with assessment because they don ' t access it with prim development if you don ' t have access to it . A . Everett : And he ' s already made a bundle , how many lots has he sold off ? The guy is trying to make as much money as he can at the expense of the Zoning Law and that ' s what he is trying to do . Mr . Perkins : I buy that argument , not withstanding what the merits of the . . . ( . . ? . . ) . Jay : But Mahlon he could have done the same thing he did and kept 125 feet . A . Everett : Then he couldn ' t have sold that one lot . J . Jay : And as far- as setting precedence , to me this is land locked not by Zoning , not by the map , this is land locked by the geography . A . Everett : How can you explain that last lot with the 55 feet frontage that they sold . J . Jay : He owned the house , he owned the barn . He said I will sell this to you but I will only sell it on the case that , on my attorney ' s advice , that I keep this access because , I am going to use that land back there . A . Everett : But the access isn ' t on that property , it ' s next door . 3 . Jay : It ' s on both . It ' s next door where he gave their grandchildren , his grandson for a dollar the property . Hanley : So you ' re saying it is kind of tough to believe that all these attorneys including the attorneys for the Land Trust were involved and all these transactions , and nobody mentioned zoning . 2 93 Pg . 11 r . Perkins : I wouldn ' t buy it for a minute . I don ' t think any judge would either . I mean he ' s deemed to have knowledge of the zoning ordinance . . t . . . ? l I mean you can not plead that you didn ' t know , that just doesn ' t wash . C . Hanley : But it ' s also plausible with all these transactions somebody must have brought it up . Mr . Perkins : My theory is that the reason he was willing to give the Conservation Easement is he didn ' t have rany use for the property or this was the best way to get a tax break out of it . A . LaMotte : Well , isn ' t that the standard procedure why anyone would a ,; Mr . Perkins : Sure . But don ' t bite on the argument that he is just a poor innocent individual who is dallying in real estate for the first time in his life . I mean Fie sold off all his property drivable to Harford Mills off the peace and quite of the country . Now he is just trying to you know , make the best of it . • Jay : So Dominic wanted to know what your opinion was legally on this ? Mr . Perkins : What ' s the question ? J . Jay : Are we opening up a can of worms granting it '? D . Bordonaro : I think my concern was whether there was any precedence or any legal position that we should be careful of when looking at this , particularly in the event it was granted . _ And I didn ' t know what our exposure was . I personally didn ' t like the idea of the precedence we would establish on it . Mr . Perkins : I think that that ' s a problem . D . Bordonaro : But I didn ' t know about legal ramifications . Mr . Perkins : There is one character of the land itself which is important , and that ' s the topography of it . I think what you ' re going to have to do , to get by the self created situation is your going to have to find that no matter what he did , he would be in this situation . That the use of this land , he couldn ' t use this land no matey what he did . I don ' t buy the argument that he couldn ' t get across the ravine . You should see 2 / 2 / 93 Pg . 12 some of the structure",s that are being build all over the place . I mean look at the houses that are build on the cliff walls in Ithaca and the gorge walls down ther,,e . I mean , you know with modern construction , iequipment , methods , tools you know , they are golfing to get across anything they want . It may co;l,st them some money , they want to build way back there but do you do that at the expense of theliZoning Ordinance in the Town . That ' s a question you have ? to answer ., J . Jay : I ' m not even sure , I I'mean I don ' t know this „ but that it has a weV ravine and I ' m not even sure the wet lands pr'„otection thing , you know there ' s all kinds of ;things that are out there now . I don ' t know i f� that is covered under that . Do you know , Henry ? H . Slater : You could crosB that (ravine if you wanted to spend the money to d6 it . There ' s absolutely no protection afforded other then you can ' t disrupt the flow of that stream . You can ' t alterits course nor can you contaminate it because , it a contribiutory of Six Mile Creek , so it is afforded som 'ie protection , but you can cross T . Jay : There are other lots !'in the Town of Dryden that are land locked . Isnj' t that correct ? Other homes ? H . Slater : None that I can thinkl, of off the top of my head unless they had a variance , or were created prior to the Ordinance . If you want some , 161 got some land that I ' 'll sell you . OK . Actually I ' m smart to keep it because I get a very good tax break on it because it is land locked and all I havei', to do is take timber off of it , J . Ryan : The only one I know about is the one up bir us Henry , and that is strictly the right - of -way . All they have is a right - of - way . And I don ' t know how that happened but it has been a number of years that that ' s been established . But there are three homes build back on a right - of - way . Mr . Perkins . I think that was during the era when they were giving the variances away like lolly pops in a dentist office . Ryan : It ' s worked out very nice . But if it hadn ' t been that they could have purchased now the railroad bed , lands , and other ways to access 2 / 2 / 93 Pg . 13 to actually have a better access in they would not have been able to ',' do what they have done . That ' s the Welch property . C . Hanley : And actually this woulild not be , if I understand what he said last week would be land locked „ because there is that ,, possibility of working something out on the !back side . J . Jay : The railroad easement/ thing back there , NYSE &G . Mr . Perkins : '. Can he solve this prol,blem in any manor other then getting a variance ? J . Jay : He ' 11 have to go back , and buy 125 feet back that he sold a guy . Then he puts the land right through where the right - of -way is and does everything else ' likes he wants to . J . Ryan : They ' d probably use the NYSE & G right - of- way just like they intendlled to in the first place . J . Jay : But that has nothing 'to do with us . Mr . Perkins : But that solution proltects the integrity of the Ordinance , and buts al burden on him of having to comply with it the: it was written . `( Our job is not to rewritelthe Zoning Ordinance . You can disagree with]% it but it ' s not to rewrite it . That ' s a', legislative function , your job was when you� make findings that would support relief , that ,they be rationally , reasonable , and suppo°rted by the record . Just go through those sections of the Town Law that C . Hanley : But there seems to be'l, no question in your mind that if this was to be granted it would send a very unUsual signal to everybody ? Mr . Perkins : O sure , what happens then is that everybody sells off their road ;frontage and starts building a J . Jay : Like I say the uniqueness to me is still the geography of this . Mr . Perkins : That is clearly a factor . But I think you ' ve got to take that factor into account with all of the other factors that go with this thing . Hanley : And everybody who shows up here thinks they have a unique situation . 212193 Pg . 14 Everett : Their not familiar wi °th what the guide lines we have is the biggest p;rroblem . J . Jay : To me it was a situatll'lion that a , somebody else 11 comes to us a year from now , same situation . I say in the same situation where they have no practical access to the property and they did something like this , III have some compassion for the guy , I really do ,believe that his attorney gave the wrong advise ''. because I did the same thing , it happened toy me in 1978 . Mr . Perkins : That ' s why his attorney has liability insurance for . Have his attorney file a . . J . Jay : But to me OK , so he comes back , he gets it . They still build the house the same way . H . Slater : Besides that he alleged the attorney gave him that advise . You didn ' t see any evidence to that affect . You havlle ? l C . Hanley : No . No . I am agree 'l'ing with what your saying . Everett : This all just happened a couple of years ago . Zoning has been in place since late 60 ' s in this Town . J . Jay : I landlocked some property on Route 13 in 9713 about four acres there and I ended up waiting for about four years before someone to sell a lot . A house un rout '' 13 , they had a vacant: lot next to theirs I got 125 feet of frontage in a little funnel like , then I could sell my four acres back there : My attorney let it go by . At the time I didn ' t know anything about Zoning . I wasn ' t thinking anything about . tax breaks I wanted to se11 it right away but I had to wait for the other woman to sell her property , and she sold a little lot next that she had . Mr . Perkins : She sold a whole lot of parcels . J . .Jaye The main house ,) the house , and then I had the one left over . A . Everett : Mahlon is there anything we should be aware of in these Finger Lakes Land Trust business ? 2 / 2 / 93 Pg . 1 ' fr . Perkins : No I think that while all of that is interesting I think you ' ve got to take it for what it is . That ' s very nice , again your not going to enforce those property lines that the Finger Lake Land Trust made up . Obviously he got some benefit from °, doing that . I don ' t know what ' s in there . Even if you were to grant relief if it was contrary to the provisions of the easement somebodies got a right to enforce the easement over your decision . You can ' t change a private contractual right . There might be a restrictedlicovenant that runs with the land . Even ' if you grant the relief from the Zoning Ordinance by all the proper showings , that ' s not going to change the fact of that private contract . C . Hanley : So that always supersedes . Mr . Perkins : Oh yea . A . LaMotte : Nor is it our ability to enforce those is it ? Perkins : No . LaMotte : It cuts both ways . Mr . Perkins : Yea , absolutely . J . Jay : But it can make a difference in our decision that it ' s there , because the easement and everything over there we know is only going to be for one residence „ according to what is put here . I mean , it ' s not going to be an apartment complex back there , it ' s not going to be a new subdivision that they ' re starting a private road to put in . . . Mr . Perkins : Well you ' ve only got one application before you too . J . Jay : According to what this thing says they can only put one home up there . M . Perkins : In any particular case one of the things that YOU can always do is say if the relief were granted is limited to the present application only . Any future development of the lot would have to make a showing, independent of what was done here . Jay : To me that does effect : my decision . 2 / 2 / 93 Pg . 16 . LaMctte : We did that with your property , didn ' t we ? Wasn ' t that variance granted for a single residence . J . Jay : No it ' s granted so I can use it . It has A . LaMotte : For a single residence . J . Jay : No it was going to be that way but then I spoke up actually during the deliberations and I said no , used as the Zoning allows other then the road frontage . So I can do whatever the Zoning allows in my home . I had 98 feet of frontage , the tax maps said 150 feet - plus or minus so they let it go . I can put what ever the zoning allows I can do . Mr . Perkins : You see that ' s a different case because there you ' ve got a provable intervening factor . I bought the property thinking I had the right frontage and turns out that when the property was surveyed , after I closed or whatever I didn ' t have enough . I think that ' s a very different case . Everett : That ' s right . J . Jay : That thing did make a difference to my because we ' re not opening up that land to put a whole little development in there . A . Everett . I still think we have this basic difference in philosophy and that ' s going to keep coming up to haunt us . You ' re here to protect the integrity of the Zoning Ordinance period J . Jay : We ' re here to protect the land in the Town , and to make things used properly and you know , it ' s not , if it is so black and white then why are we even here . Why don ' t they just say this is the Law and you can not go around it in any way . I feel bad about the use variance , there is no use variance allowed in the Town anymore . How they will ever come up with a case under the Mr . Perkins : Never is a long time . J . Jay : Under the current laws you know it ' s going to be tough . I think that ' s what we ' re here , we ' re here to protect , to keep the Town of Dryden .looking like the Town of Dryden . 2 / 22 / 93 Pg . 17 Mr . Perkins : No I disagree with you . You ' re here to grant relief from the Zoning Ordinance because when the Zoning Ordinancewas drafted , the people who enacted it couldn ' t perceive all of the situations which might arise . Therefore when there is a proper showing of practical difficulties such as topography or unnecessary hardship for whatever" and if they follow the procedure and they ' ve make the showings that it ' s just and equable to grant them relief from it , I mean it sort of legislative function on a case by case bases but it ' s not just to protect the Town of Dryden . It ' s to grant relief in a specific case . You just can ' t think of it in terms � of , as expansive as you are , because you ' ve got a Zoning Ordinance which is enacted toi, protect everyone . We may not agree with it , We may not like it , but that ' s what we live with . That ' s the law of our Town as it pertains to land use . I think you ' ve got to get out and look at it , you ' ve got to construe it strictly , unless someone ' s make the proper showing , you feel that it ' s just and equability then you grant the relief . And you grant only so much relief as is necessary for that particular case . Of course you know , you can put conditions , restrictions on those also . C . Hanley : And if we ' re dead looked the variance is denied ? Mr . Perkins : That ' s right . J . Jay : You have to have three to pass . A . Everett : Thank you , Mahlon . Mr . Perkins : If you have more questions or problems I can stick around until about 8 * 00 o ' clock . If you still have more questions or problems you still have some time I think to adjourn it again , to make your decision , or you can ask the applicant for additional time . A . Everett : So what time frame are we working with under the new laws . D . Bordonaro : Still sixty days . Everett : Is it sixty days from last hearing or . . )J . Jerzy : From the application , right ? 2 / 2 / 93 Pg . 18 Slater : We readvertised , so does the clock start again ? J . Ryan : You didn ' t advertise it as a public hearing did you ? H . Slater : Yes I did . ? . Ryan : It wasn ' t . It was to continue deliberations , wasn ' t it only ? A . Everett : I think I asked him that , and I think he said he advertise it as a public Hearing Ha Slater : In case you wanted to . take more evidence . J . Jay : Here it is right here . A . Everett : So he gave us good leeway H . Slater : I gave you the opportunity to use it for that if you want to . J . Jay : Unless we find another reason to continue , l: ' d Mahlon give you what don ' t know , Dominic d you wanted to hear ? on Bordonaro . Yea , I guess . A . Everett : We still have to list our findings too . Mr . Perkins : Yea I think , no matter which way you go make sure you get your findings . A . Everett : See that ' s going to be , well I ' ll have to see how that goes but I don ' t see how we can reach agreement even if we list our findings . I don ' t even know if we are going to agree on our findings . J . Jay : Well you put findings if you approve or deny , and you take a straw vote and if it goes one way with three that approves work it out , and if it goes the other way then the people have deny it , let the respondent work it out . D . Bordonaro : Well your findings can be pro and con . They . don ' t all have to be pro . J . Jay : Right . Everett : You view the ravine situation entirely different then I do . . 2 / 2 / 93 Pg . 19 r . Perkins : You ' re not going to change the fact that there ' s a ravine there and makes a certain amount of this unusable . You ' re not going to change that fact . How you interpret that and subsequent development on the logic based on the other findings may be different . A . Everett : My finding would be the ravine extends to all but say 55 feet of the road frontage , but the remaining 55 feet is certainly usable for a road to access the back property . So . therefore that property should have been keep and it was sold . J . Jay : That ' s with the house and the barn . A . Everett : Was whatever . J . Jay : Kept the right - of -way . OK he could have said this is one big lot and this is all that will ever be . A . Everett : He didn ' t keep the right - of -way . The right - of - way is on the guys property next door . Jay : It starts there and comes through , so the people have . . A . Everett % Where it starts is the problem . J . Jay : No . He has no frontage . It doesn ' t matter if started 20 miles down , the road . He ' s got to come in from the one side going through these peoples property . A . Everett : Understanding the 55 foot was on his property . Mr . Perkins : But he could have kept the 55 and some additional land and still have enough frontage . J . Jay : That ' s what he sold the house , and the barn , and that area that he sold already . So would he keep it as one big 60 acre lot or you sell this off with the frontage and Mr, . Perkins : I don ' t see why that ' s a hardship . D . Bordonaro : He gave it away and traded for this other thing . 0 Slater : If he sold it to me , boy would it cost him dearly to get it back . A . Everett : OK , well here we go . Henry do you want to open up the door and we will see what we have here . Thank you very much Mahlon . 2 / 2 / 93 Pg . 20 C E R T I F I C A T E 11 I , Jean Ryan , Recording : Secretary for the Town of Dryden Zoning Board of Appeals , County of Tompkins and State of New York , DO CERTIFY thatlI have transcribed thet record of proceeding held on February 2 , 1993 between the Town Attorney Mahlon Perkins and the Dryden Zoning Board of Appeals , such record being transcribed from tape recorder used at time of such proceedings * that the within is a true copy of such tran "script , to the best of my ability , and the whole thereofo May 4 , 1993 - - - -- --- -- ---- ----- -- -- ------ Jean Ryan , Recording Secretary