HomeMy WebLinkAbout1994-10-04 S II
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TOWN OF DRYDEN 7/
ZONING BOARD OF APPEALS
OCTOBER 4 , 1994
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AGENDA :
STEVEN HORN IN To erect and attach a private garage to his existing
home closer than the required 70 feet from the
center of the road .
DISCUSSION : Request from the Dryden Town Board to rehear the
Patricia Schlecht variance of September, 6 , 1994 .
MEMBERS PRESENT : Acting Chairman , Mark Varvayanis ; Alan LaMotte ;
Joseph Jay and Charles Hanley .
Also present but not limited to : Patricia and George Schlecht ;
Steven Horn ; Clint and Leona Cotterill ; Town Attorney , Mahlon
Perkins ; Henry Slater ; Mr . Sop PIN Edward Hooks , Esq . ; Randy Marcus ,
Esq . ; Town Supervisor James Schug ; Town Board Members , Jack Baker ;
Charles Hatfield ; Ronald Roberts ; and Thomas Hatfield .
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The Meeting
was call to order by Acting Chairman Mark
Varvayanis at 7 : 33 PM .
PUBLIC HEARING FOR STEVEN HORN
Mr . Varvayanis stated we are here to hear an area variance
for Mr Steven Horn , of 63 Hunt " Hill Road . He is seeking relief
from section 1703 . 1 he specifically wants to build a garage less
than 70 feet from the center of Hunt Hill Road . In deciding whether
we will grant an area variance , we balance the benefit to the
applicant against the effect on the neighborhood . We consider
specifically whether an undesirable change will be produced in the
character of the neighborhoodf�, or a detriment to the nearby
properties will be created by the granting of the variance , whether
the benefit sought by the applicant can be achieved by some method
feasible for the applicant to plursue other than an area variance
whether the requested area variance is substantial , whether the
proposed variance will have an averse effect or impact on the
physical or environmental conditions of the neighborhood , or
district , and whether the alleged difficulty was self created .
Mr . Varvayanis noted that he meeting was properly announced
and advertised in the Ithaca Journal and the neighboring property
owners were notified as required .
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S . Horn : I think my case was pretty much stated in the letter I
sent to the board . I want to build a garage that will
not come any closer to the road than the existing house
presently does . The existing house is already within
the 70 foot set back . In fact it comes to probably about
40 feet . I think that about the closest this would come
would be about 55 feet . My present driveway is probably
on the most dangerous point on the - entire road . It is
right on the steepest part of the road on the outside of
the corner . I can ' t really see more up the hill or down
the hill at this point .
There are a lot of cars that come down the hill out of
control that go into the ditch right across the front of
my driveway . I ' d like to move it up farther and have a
garage that ' s on level with the rest of the house and
eliminate that danger ,.
M . Varvayanis : Looking at the map provided by the applicant asked :
Do you have a well located in the middle of your
house ?
• S . Horn : Yes .
M . Varvayanis : What is that circular object behind , to the south
of your house onjhe map ?
S . Horn : Probably the septic system
M . Varvayanis : The bedrooms then are also located on the southern
end ?
S . Horn : Yes this is a bedroom wing
M . Varvayanis : And what ' s on this end of the house ?
S . Horn : That ' s the living area . This is elevated , there ' s
a walk out basement , and there ' s an existing
garage there under this half of that . Which at
this point is virtually unusable . Its that the
garage door is less than six feet tall I have two
vehicles that will never fit in there . The ceiling
height in the basement is seven feet with the duct
work . Obviously ; that makes it less than seven so
it ' s not a functional garage at this point .
M . Varvayanis : The floor of that garage , I take it , is a concrete
slab ? It would be difficult to deepen that , say a
foot ?
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S . Horn : Yeah , I think that would be difficult to do . It
means removing all the structure that ' s inside and
would put me below the surface of the road right
there . I would have water running back in , in that
direction and it wouldn ' t really improve my access
to the road
M . Varvayanis : Any questions ?
PUBLIC COMMENT
The Chairman asked if there are there any members of the
audience who have any comments to make on this either one way or
another ? No comments were received .
PUBLIC HEARING FOR STEVEN HORN CLOSED
Deliberations ( muffled )
• Joseph Jay commen7red on the location of the site and the wooded
area in the vicinity . Did not think it would change the character
as there was only one house that he could see . He also noted
where the septic was located on the property and the steepness of
the land . Mr . Jay noted he was at the location this afternoon .
Traffic was not an issue . S'ite visibility was not good for
entering the road .
Mr . Hanley noted that the members were unusually but thought
they had covered everything . It seems straight forward and 15
feet of relief is not significant .
Mark Varvayanis read what he had written for findings :
1 . The applicant requests permission to build an
attached garage at the northeast side of the house . It would be
fifty five feet off the road center line . The southwest side of
the house is currently 40 feet off the center line .
2 . The town engineer sees no problem with the proposed
garage site .
3 . If the garage were located on the south end of the
• house the septic tank and leach field would have to be moved .
Additionally a garage on the south end of the house would access
only the bedrooms .
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4 . No community objection was expressed .
M . Varvayanis : Does anybody else have any thing to add ?
C . Hanley : Hadn ' t you ought to also say , no significant change
in the neighborhood ?
M . Varvayanis : Why is there no significant change ?
J . Jay : Because there ' s no other properties that . . . people
make it unique because of that . Like I said , if
this was a situation where all the houses are
seventy feet away . . . .
M . Varvayanis : He already on the southwest side comes to within 40
feet , so now on the northeast end He builds an
extension , he ' s still 15 feet further back from the
road . That pretty much to me says he is not going
to change the character of the neighborhood . It
doesn ' t even change the character of his lot . If
• you want to say there is no change in the character
of the neighborhood throw that in .
Is there a motion ?
JOSEPH JAY MOVED TO APPROVE THE FINDINGS AS WRITTEN .
ALAN LAMOTTE SECOND THE MOTION
VOTE YES ( 4 ) M . VARVAYANIS ; A . LAMOTTE ; C . HANLEY AND J . JAY .
NO ( 0 ) ABSTAINED ( 0 )
JOSEPH JAY MOVED TO GRANT THE AREA VARIANCE AS REQUESTED ,
CHARLES HANLEY SECOND THE MOTION
DISCUSSION .
VOTE : YES ( 4 ) M . VARVAYANIS ; A . LAMOTTE ; C . HANLEY AND J . JAY .
NO ( 0 ) ABSTAINED ( 0 )
The Chair . asked Mr . George Schlecht if he would like to make
• a statement , or if he had any concerns ?
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G . Schlecht stated that he understood that some members of
the Town Board would like to discuss the variance which was
granted last month .
The Chair noted he wasn ' t sure and asked Town ,Attorney M .
Perkins if he knew what they plan on discussing when they get
here ?
M . Perkins : Right now I think the town board is meeting with
the village board of Freeville , and I do believe
that some of them are planning on coming later to
talk with you . I ' ll leave it to them to discuss
what they will .
I ' d like to introduce a couple- of individuals here .
This is Ed Hooks who is an attorney representing
the Town Board and Randy Marcus an attorney who is
from John Barney ' s offi'ce ; A '
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t✓� A2cUy John ;me Markywith youyesterday and
explained he had : aonflict , a prior invitation to
J attend a Town Board Meeting and he asked me to
attend this meeting in his stead . I understand
that you were otherwise expecting him . If I
understand correctly you have not yet made the
decision as to whether to engage counsel .
M . Varvayanis : That ' s correct . If there ' s no new business I ' ll
adjourn this meeting and go into a training session
with Mahlon .
M . Perkins : Actually I think Ed Hooks was here to speak to you
about the position of the town board . They may in
fact turn up later , but I think a training session
probably is better postponed until the end of this
meeting because all I ' m going to do is talk , give
you a little critique of the hearing you just
conducted .
Noted : Town Board members arrive .
M . Varvayanis : Can I get a quick poll of the three attorneys
present about the propriety of discussing specifics
on this case without having announced that we might
do so previously . In other words there is no
option for any other community input .
E . Hooks : Well I don ' t know . I don ' t know what ' s been posted
• and what hasn ' t been posted . I know that there ' s
been a request made for reconsideration as I
understand it f
he determination that you made on
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September 6 regarding Mr . and Mrs . Schletcht ' s
application . I think the reasons for that were
outlined in the letter from Mr . Schug to Ms .
Everett on Sept . 26 if I am not mistaken . It ' s
your call as to whether or not you want to have a
rehearing . It ' s my understanding too , that you
have to unanimously determine that you would rehear
this . _
R . Marcus : In addition
you would be required under 0.:pPl , cab � �.
law to conduct the rehearing on notice . In other
words should you chose to , and comply with the
first step that Ed just mentioned , the unanimous
vote to rehear , the law would require that you
notice the rehearing just as any other hearing .
M . Varvayanis : Right .
Mr . Schlecht wished to know if all the Board Members got the
letter he wrote in response to his receiving the Supervisors
letter ?
• Noted : Everyone has received the letter .
E . Hooks : Stated he had a lengthy meeting this afternoon with
Mr . Barney and Mr . Marcus . As he understood it at
the moment , he Spokt' with them , neither one of them
had been as ye to represent the Zoning Board
of Ap-Renals in connection with this matter .
I set forth what the view of and what the. position
of the town was with respect to this matter and why
we believe that a reconsideration rehearing would
be necessary . I might add and I think its
important for you to recognize this , that when I
say rehearing I ' m not necessarily , I don ' t want to
confuse the concept of having the rehearing with
the concept of denying the application .
M Varvayanis : No , I understand that .
E . Hooks : The town is not here asking that you deny the
application , the town is saying that for a variety
of reasons all of which I have discussed with Mr .
Marcus and Mr . Barney this afternoon , we feel that
a rehearing is appropriate and should be granted so
that you can comply with section 367C , B of the Town
Law .
SJ . Jay : What is the reasoning ?
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E . Hooks : Well the bottom line is this , our view is that at
the beginning of your meeting on sept 6 I think Ms .
Everett stated that there were five factors that
have to be considered . Those five factors are
enumerated in section 267 - B of the Town Law .
My view is , and the view of the Town is , that those
five factors , when you have to make your findings
-OF fact , you use those five factors and you make
determinations on the basis of each of those five
factors . However you do that , you may very well
conclude as you did the first go around that indeed
the application is appropriate and it should be
granted . At the moment I do not believe that
either the deliberations that you conducted nor for
that matter the specific facts which were put
forward before you at that previous meeting
provided you with enough information to be able to
do that .
Accordingly , that ' s the reason we ' re saying that
you should have a rehearing with a view toward
going through those crypt five factors that are set
forth in that statute . As I said you might very
well on the basis of the rehearing that you conduct
at that time make a conclusion as you did the first
go around . That indeed it meets all five factors
or considering those five factors the area variance
is still appropriate .
M . Varvayanis : Specifically which one of those five factors don ' t
you think was adequately addressed ?
E . Hooks : I ' m not going to assure that any of the five
factors was adequately addressed . If you . look at
267 . b 3 ( b ) there are the five factors whether an
undesirable change will be produced in the
character of the neighborhood or detriment to the
nearby property will be created by the granting of
the area variance . I think you state that and you
determine on the basis of the facts which were
presented whether it does or does not .
Secondly , whether the benefits sought by the
applicant can be achieved by some method feasible
to the applicant to pursue other than an area
variance . My question based on the record which
- - was presented to you on Sept . 6 whether or not you
had sufficient facts to be able to determine
whether there were some alternatives available to
Mr . Schlecht . Be that as it may , if you determine
that there weren ' t , you ' d make a finding with
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respect to that , that particular fact . Number
three , whether the requested area variance is
substantial . In this case , I think anytime that
you take a one acre lot and divide it into two , you
have two non conforming lots which are essentially
half the size as is required under your code . That
clearly is substantial by any definition of that
word .
Whether the proposed variance will have an adverse
effect or impact on the physical or environmental
conditions in the neighborhood or district . I don ' t
know whether or not you had enough information
before you at that time on Sept . 6th to make that
determination but again , if you recite that and
then conclude on the basis of whatever specifics
facts you have or whatever specific evidence was
presented at that hearing you plug that in and make
a determination on that basis .
Then lastly , whether the alleged difficulty was
self created , which consideration shall be relevant
to the decision of the board of appeals which will
not necessarily preclude the granting of the area
variance . In this instance , as I understand it ,
the hardship which was articulated and presented to
you was the fact that a residential building had
burned down . As I read it , the deliberations , as
I read the transcripts of the deliberations there
was a question in my mind at any rate , as to what
the story was with the fire insurance ., How much
fire insurance there was ? Or whether the fire
insurance was inadequate to take care of the
problems . Was there some reason that the fire
insurance was not used to pay down the mortgage on -
the property such that perhaps considera .lole.
financing could have been made available so that
something could have been done with the balance of
that lot , etc . etc .
So there seems to be at least at this point , some
question as to whether or not in part in anyway the
hardship which is at the heart of this
determination that you made on Sept . 6th was in
some degree self created . So what I ' m saying is
E . Hooks Cont : you take those five factors and you make specific
findings with respect to each one and you make a
conclusion on the basis of the evidence which was
presented to you : This instance as I remember it ,
• there were like four factors which were just sort
of set forth . One of which was a site plan review
board approved three buildings on the property at
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one time . There was hardship because there was the
fire and so forth but there wasn ' t really
articulated answers to these five factors , or
you ' re determination with respect to these five
factors . I think Randy would probably disagree
with me .
M . Varvayanis : Do our findings specifically have to go through one
factor after another factor ? I think our findings
covered . .
R . Marcus : I would agree with ; you Mr . Chairman that the
findings are exhaustrvg- The record as I reviewed
it this afternoon is quite lengthy and quite
detailed . It exhibits quite a bit of discussion
among the board members that addresses each of the
five factors . Now I ' ll say it may not go precisely
in the order of the five factors as they appear in
the statute , it may not go directly to a conclusion
on one before moving to the next . I think that the
discussion is a more general discussion and it hits
on several of the points at one time and moves onto
others and moves back to some , which is a typical
way in which a zoning boards deliberations are
• going to be conducted on any issue . The courts
that have looked at this question have uniformly
said that it ' s obvious that the members of a board ,
like a zoning board , are lay people . They are not
necessarily trained in zoning and planning matters .
They don ' t necessarily have to follow every last
letter of the law in precisely the order in which
the statute provides it , as long as the substance
is addressed . And when a court looks at: whether or
not a zoning board has addressed the substantial
requirements that Ed has just mentioned,,, + hey are
going to consider whether you actually discussed
those issues , not whether you went : item one this
is the question , these are the facts , this is our
conclusion ; item two , etc . etc . The real point is
whether you hit on the right points , the right
issues . My opinion , as I expressed to Edward at
the meeting this afternoon , and Mr . Barney likewise
expressed , was that the zoning board addressed the
issues . And obviously we have a very different
interpretation of what went on at the meeting based
on the record that we were given .
E . Hooks : The other point , more specifically that I did
discuss with John and Randy this afternoon is that
• there is a NY court of appeals case in 1992 which
I think is very close to , exactly 6n point , to this
situation . And that case involved a very similar
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situation where somebody attempted to do exactly
what Mr . Schlecht proposes to do for financial
reasons . And that is split his property
essentially in half so that he would be able to
sell two properties . And he would therefore be
able to realize more money as a result of being
able to do that . The NY court of appeals made it
very clear that , that is not an adequate reason to
have an area variance granted . And it made it very
plain in that regard .
J . Jay : I think we agree with you there . I. saw these
minutes for the first time a half an hour ago so I
have no idea what they say .
The question we said and I think we all agree , if
an applicant came to us and brought a rectangular
shaped acre lot and put up a commercial building
like he did and said ok now I want to put the line
there , none of us would have voted for that I
believe .
Once again that I can ' t speak for the other
• members . But the fact that there was that income
property there , you know , that was one of the
things , I don ' t know how it was stressed in the
minutes . I think the minutes from what I ' m
gathering are not , probably don ' t represent exactly
what went on and I have a few reasons to believe
that . We had two letters . We had the letter from
Mr . Schug , we got the letter from Mr . Schlecht , did
you get a copy of that ?
E . Hooks : Yes I did .
J . Jay : To me that represents Mr . Schlechts , to me looked
more accurate to what happened at the meeting .
E . Hooks : Well of course Mr . Schlecht was at the meeting and
Mr . Schug wasn ' t .
M . Varvayanis : So by that comment you ' re saying you agree Mr .
Schlecht ' s letter is more accurate ?
E . Hooks : I have no idea . I ' m saying we weren. ' t at the
meeting . From what we can see in the
deliberations , it seems as though , I think Mr .
Hanley said it best , this looks like a question of
finance is the principle concern rather than what
the area variance is or is not going to do . This
is a question , I think somebody said , are we
bankers or are we in business to try to make
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determinations with respect to the . zoning laws ? I
think that , certainly the flavor I got in reading
the deliberations was that this was more a
financing situation than it was a zoning situation .
M . Varvayanis : Well , the two issues are certainly linked . I mean
he requested an area variance in order to improve
his financing possibilities . I don ' t see , I mean
a financial hardship is still a hardship . I don ' t
see why you can just draw a line and say well , if
he wants improved financing go somewhere else .
That has nothing to do with the zoning .
R . Marcus : I think that to make your point a little more
general , virtually any variance that your board
hears relates to the financial considerations of
the property owner . I mean they wouldn ' t be coming
to your board for a variance if they didn ' t have
some concern with something either costing more or
returning less to their property . I ' d also just
like to mention that in regards to the case that
Mr . Hooks brings up , that he feels is similar in
some respect . That ' s sort of a shift in focus from
what was said earlier . In other words , it seems by
bringing up that situation that what is being
questioned is whether your decision was right or
wrong . Although earlier Mr . Hooks indicated that
what the town board was most concerned about was
the procedure that you followed . Those are two
separate issues and I think you ' ve probably become
well aware over the course of your experience as
zoning members that you are delegated certain
powers as the zoning board to make decisions about
area variances . The Town Board has
given you those powers . GThe fact that the town
board may not agree with a decision you make is . not
necessarily going to have any impact on your
decision . You ' re the ones who have the decision
making power . That question is a separate
question . Whether or not you followed the right
procedure ? If I were a Town Board Member or if I
was the Town Attorney , I
R . Marcus Con : would also be concerned if you followed the right
procedure . If there ' s some lacking in the details
of your procedure I think it ' s appropriate that the
Town Board take note of that and suggest that you
brush up your procedure if that is the case . I ' m
not saying that it is , but I think that ' s a
• legitimate concern . I don ' t think it ' s a
legitimate concern for the Town Board to suggest
that you made the wrong decision on the basis of
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the facts that were presented , particularly because
the Town Board didn ' t come in and make any
statement during the course of your hearing , as I
understand it . There was no Town Board member who
objected to the granting of the a variance on . any
subsequent cases . So they ' re really two different
concerns . If that second one is really part of the
issue .
M . Varvayanis : One point I ' d hike to bring up is that when you
read Mahlon ' s letter , the first point , he says that
apparently there is no application . I believe that
there was and I assume we ' ve corrected that . And
also that we had no authority to hear this in the
first place . If there are two reasons why we
shouldn ' t have heard this in the first place , why
are we being requested to hear it the second time ?
Can either of you , or any three of you , or any
eight of you comment on that ?
E . Hooks : Well , my understanding is that this was an
application made by Mr . Schlecht to subdivide his
property . I would , at first blush , I don ' t think
• most subdivision, as I understand your subdivision
procedure , that ' s not something that ' s presented in
the first instance to the ZBA , if I ' m not mistaken .
But I ' m not altogether sure this particular
subdivision is considered as such quoted under the
Dryden law . That ' s maybe something that Mahlon
could speak to . Based on my reading it did not
appear to be .
M . Perkins : Well , it couldn ' t be a subdivision that would be
permitted as of right unless you ended up with
conforming lots .
J . Jay : So he came to us asking for a variance . Is this a
word thing ? I don ' t understand this , was it a legal
application to us ? Was it all right to hear the
case ?
M . Varvayanis : If it wasn ' t all right to hear the case why should
we even sit here discussing if we should rehear it ?
E . Hooks : As I understand the procedure , it went to the
zoning officer , they sought a permit to subdivide .
The zoning officer said nos can_' t do it because of
• 1205 . 6 I guess it was , the OnP.-l3) acre requirement .
And as a consequence he then appealed to the ZBA I
gather as a variance .
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G . Schlecht : Yeah , I think that ' s substantially accurate , but
the issue is , if you look at the zoning ordinance ,
as I say in my letter , I can ' t remember the
article , 5 or some such thing . In the zoning
ordinance it says that you can ' t go through a lot
so as to create a nonconforming lot . Of course
that ' s exactly what I ' d like to have done . I think
about three or four paragraphs down it says that
the Zoning Board of Appeals is the people you go
to , to seek relief . So I went to Henry , I made an
application that said I wanted to dividei: the lot
and as it is not a subdivision pursuant to
subdivision rules . . .
R . Marcus : That parallels with everything that I ' ve heard
about it , - 1he zoning officer denied the
application , the denial from the zoning officer was
appealed to theoA:rD: As I understand it a very
ordinary course of proceedings . Which enabled you
to hear it .
• M . Varvayanis : Is there then a general consensus that we did have
authority to hear this in the first place ?
E . Hooks : It ' s a unique situation . I don ' t know that you ' re
going to find anything that specifically permits
you to do this . I can ' t find anything that says
you can ' t . I guess my implication in the matter is
you try to serve those who fall through the cracks ,
it has to get resolved in some way and it appears
as though this is the procedure that we have to
follow .
M . Perkins : I think some of the question arose because the
zoning officer couldn ' t produce the application .
Nobody seemed to be able to find it . It
subsequently appeared . He didn ' t know if it had
been misfiled or what had happen and then the
application did appear and he thinks that is where
the confusion was . Otherwise there wasn ' t any
administrative determination to appeal from .
A . LaMotte : Wished to know if that is required ?
M . Perkins : Yes , and he had 'what has to ' h peen is there has to
be some kind of an application so that there ' s an
administrative action taken by the code enforcement
officer , or the zoning officer in this case . When
he makes his determination or interpretation
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whether he denies a permit , or he interprets
something or decides something , that is what that
administrative decision is the appeal to this body .
A . LaMotte : Now could we review 274a section 3 ?
R . Marcus : That ' s a new provision of law that would apply in
the case of a site plan application . Which I ' m not
certain was the case here . I don ' t know exactly
what it was that Mr . Schlecht came in to the zoning
officer with . My understanding is that he came to
request that the lot be modified . Not so much that
there be a site plan approved and that. subsection
3 would relate just to the site plan .
A . LaMotte : Would you not have been required to go through site
plan to build on that lot .
R . Marcus : If I understand the town zoning ordinance
correctly , he would have once he had the approval
to separate that lot out . In that case he would not
have needed denial of anything . It would be his
right to come to' to get that approved .
TM6 rtoard ' 7 7�'
• M . Varvayanis : Why don ' t we work our way through Jim ' s letter . We
seem to have covered one and apparently that ' s not
true .
The second point was our decision has the effect of
�TW q _ a conforming lot with the site plan
approval into two nonconforming lots neither of
which has site plan approval . As I understand it
site plan approval isn ' t our business anyway , that
goes back to the Town Board . So I mean that ' s in
your lap . I don ' t know why you get concerned that
we hadn ' t , I mean can you explain to me what your
concern was there ? Obviously now he has another
lot , he needs site plan approval to do anything
with it and that ' s your baby . Nobody has a comment
on that ?
E . Hooks : Your question is what with respect to paragraph two
of Jim Schug ' s letter ?
M . Varvayanis : Right . He seems to be concerned that there ' s no
site plan approval but that obviously is not our
responsibility that is his responsibility . So why
doesn ' t he worry about that ? The applicant was
also aware that he had to go to a site plan review ,
® in fact we discussed that and we deliberated that .
OK there ' s no points taken against that . Let ' s go
on to the third .
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J . Schug : Wait a second Mark . On paragraph one , you said
there ' s no problem with paragraph one ? He didn ' t
even have the letter .
E . Hooks : We found out that there was an application made as
I understand it .
M . Perkins : yes .
E . Hooks : So there was an application . The found application
and action was taken by the administrative officer
such that it was appealed to the ZBA . So I think
it ' s fair enough to say that , that point I think
has been taken care of .
R . Marcus : Basically what Marz0., ' s saying about number two is
that the Zoning Board doesn ' t have any authority in
regard to site plans . Their authority would only
extend to the issuance of the variance and you
wouldn ' t get to site plan approval until after it
had received the variance . In other words if it
had never received the variance it never would have
gotten to site plan approval stage .
E . Hooks : Right .
M . Varvayanis : Paragraph three . The apparent hardship , if any , is
financial and is not related to the nature or
character of the lot , simply it ' s size . The Town
Board feels that this establishes an undesirable
precedent in that any individual with a conforming
lot can now request permission to subdivide a
conforming lot into two nonconforming lots , if this
decision stands .
M . Varvayanis : As we discussed , first of all a financial hardship
is a legitimate hardship . Second it was originally
a nonconforming lot when he purchased it , in that
it had a residence in a MA zone . Then he suffered
through apparently , in my opinion he didn ' t torch
the building himself , a hardship when he lost the
structure that was producing quite a bit of income
for him . If he wished to replace that structure he
would have been back to a nonconforming lot again .
•
15
E . Hooks : Well , I think that you know this case I was
mentioning earlier . I think that point number
three that ' s exactly what this ( . . Do le vs
Amster . . ) case was all about . I think anytime you
have somebody who says if you can split my property
in two it will be more financially advantageous for
me . I ' ll be able to either sell it or I ' ll be able
to separately mortgage it and get some money so
that I can build on this lot . The Doyle case says
that is not an acceptable reason to have an area
variance granted . Unless there ' s some more
information available in some fashion . For
example , in the Doile case , they made reference to
the fact that there was no certified appraisal
concerning the value of the property before it was
split and after it was split . He submitted , no
proof that he would not realize a reasonable return
on his investment . What you have , from what I can
see , was and I ' m ° not doubting Mr . Schlecht , I mean
you know Mr . Schlecht stands up and says listen
take my word for it this property is not going to
be as valuable to me unless , I ' m really suffering
a financial hardship here , unless I can divide
this property in two . And either A ) as I
understood it , he said either A ) be able to get
financing so that I can do something on this ; or B )
if I can ' t get the financing sell it . Well ,
without more I don ' t think that ' s enough for you to
determine that that ' s financial hardship . We
J . Jay : I ' m sorry to interrupt , but Mr . Schlecht did offer
us letters from the banks . We turned it down
because we believed him . Frankly it ' s logic to us .
Maybe we should have asked for them but to me it
was just a logical thing . And once again , I don ' t
know anything about this case that you ' re talking
about . I don ' t know if any of us would have voted
if he just brought up an acre lot and was dividing
it in half .
The issue , once again I don ' t know what the
findings say , I think that ' s one of the things
that . . . I ' m prepared to deal with this in the
future and now today , but that was the essence .
Mr . Schug , you ' re coming to us because you don ' t
feel that our findings were adequate in the legal
end of this ? Is that correct ?
E . Hooks : I think that ' s a fair statement .
J . Jay : So are you asking us to come back rehear it just to
put better findings ?
16
•
E . Hooks : I think what we ' re saying is this . If you look
. through your deliberations , the 53 pages or
whatever it is of the transcript and deliberations .
One of the things that keep coming up is you had
some concern about what this would mean from a
precedence standpoint . And I think that is very
J . Jay : ( Interrupts ) Some people were concerned with it ,
not all of us . Because I think if somebody else
comes to us , advises a one acre lot with income
property , has site plan approval to put another
building up with an existing building , has site
plan approval to put another building up
subsequently loses 1000 dollars a month in income
that cannot be replaced because of the zoning ,
comes to us and asks for a relief , yes we ' re
setting that precedence . But how often is that
going to happen ?
E . Hooks : OK . To maybe take that a step further . I think
that it ' s somewhat important for you to also , as I
say , there ' s one question that I have and that
concerns what happened with the fire insurance
proceeds , what reason was there
J . Jay : He did explain it to us .
E . Hooks : Well I didn ' t see that , maybe I missed the
explanation , maybe I didn ' t follow the explanation
but what I didn ' t understand is why for example , if
you had the building insured for X dollars if you
had that X dollars available to you why then
couldn ' t that have been applied to the mortgage
such that your mortgagee could provide you or allow
you to go ahead and build on this lot , one lot and
provide you the financing to do so ?
R . Marcus : I think the comparison to this Doyle case is a
significant simplification of the facts here . You
have , as Mr . Jay just mentioned , this very unique
situation where you prior to coming in , in the
first place have an approved site plan , for
actually doing more improvement of the property
than is even being requested in connection with
this variance . The approved site plan included the
existing house that burned down , if I understand it
• correctly , the addition of two other buildings . So
that the facts there , and again the same plan as
was mentioned earlier in assuming it ' s approved by
17
•
the town board in the form of their site plan
review committee , very different circumstances than
in the case that Mr . Hooks is referring to .
As far as precedent goes , I ' m sure that you ' ve been
advised before , that one of your obligations as the
zoning board is to review each case on its own
facts . , To handle every application to your Board
as an individual and discreet matter and not to
rely on what is commonly called precedent based on
the decisions you ' ve made before . Every piece of
property is unique , every set of facts that you ' re
going to hear is going to be unique . Certainly
there are going to be some similarities but it ' s
very difficult to imagine another case that ' s going
to be so similar to this where there ' s an approved
site plan for development of a greater intensity
than what ' s being sought with the variance and the
kind of subdivision that ' s being discussed . Even
if you came upon the same case , you ' d still be
required to review it under the same criteria that
you apply to review any other application . I
really don ' t see how the decision in that case ,
this Doi l e case , has much to do with what you ' re
• concerned with tonight .
C . Hanley : Can I make a suggestion in the form of a comment ?
Obviously , you know I opposed the variance . And
obviously from remarks that the rest of the board
has made tonight , I would still be out voted in a
new hearing . But the thing that strikes me , before
we go any further in basically rehearing this
variance right here , is the fact that for the first
time in recent memory , the Town Board has come and
asked us to clarify , in the form of a rehearing ,
what we said and why we said it . What I can ' t get
out of my mind is the fact that , they ran for
election and none of us did . We were all
appointed .
C . Hanley Con : When the elected town representatives come to us
and say look we ' ve got concerns which' have
obviously come out here , we ' re unclear in certain ,
we disagree on other things , can you .just rehear
it , get it all out there , say what you want to say ,
doesn ' t sound like anybody has changed their mind
here tonight . But in the interest of the town we
are asking you to do that . It seems almost
incumbent on us to do it .
E . Hooks : If I could follow up on that point . Again I want
• to come back to what I said at ' the very onset .
That is I don ' t want to . confuse the issue , the Town
18
•
Board isn ' t here tonight , I am not here tonight , in
asking that you change your mind and to revoke the
area variance . What I ' m asking , what we are
asking , is exactly as Mr . Hanley just mentioned ,
that there be a rehearing and reconsideration so
that this can be put in form to conform with
section 267 - B in the requirements therein .
A . LaMotte : I ' d like to respond if I could please , viewing the
same facts that , Mr . Hanley has just stated . I
arrive at a very , opposite conclusion . That we are
an independent board and supposedly act as such ,
insulated from the polling place , and supposedly
not subjected to political pressures .
6' t,+eY'arwc e'
C . Hanley : Well I agree wit 0u . I just think there may be
a degree of between an insulated board and a
board that ' s maybe gone to far . And when the
people who are elected by the people , come and say
" we would really like to know exactly what you
meant to say " , I have no problem with spending
another night telling them , exactly what we meant
to say .
M . Varvayanis : Let me say I tend to agree more with Nick , but the
whole reason we ' re here is to help the applicant
when we feel it ' s necessary . Now if this drags on
in court for a year or two years , George certainly
won ' t be helped . So what I want to know is , in
regard to this last paragraph , where you ' ll seek
judicial review in the event that we don ' t decide
to rehear this matter . Am I to understand that if
we rehear this matter you will not seek judicial
review and you will accept whatever decision we
come to ?
J . Schug : I would think that , as long as you did and
substantiate the findings .
M . Varvayanis : So you feel if we rehear the case and we
substantiate our findings you would be satisfied ?
J . Schug : Four out of the Five Town Board members are here ,
that is what we discussed . We would prefer to do
that rather than go to court .
M . Varvayanis : George would you rather we just rehear this case
rather than let it go to the courts and drag on for
God knows how long ?
19
G . Schlecht : I think there might be a third alternative where
the discussion is on going tonight . I think that
discussion generally reflects the issues .
Hopefully when the discussion is completed , the
board would reconsider their position . I think
number ( 1 ) is a very telling point . The first item
in the paragraph , . . . . . some of the others . I think
they ' ve been fairly addressed and hope they would
reconsider . Frankly I ' m very uncomfortable with
the notion of rehearing it . I would like to pursue
it further frankly .
M . Varvayanis : OK well let ' s keep working our way down the letter
then .
R . Marcus : If I could interrupt . . . . I think it ' s fair to point
out that , if indeed what the Town Boards main
concern is , that you better structure your review So
% that you tie your deliberations more closely to the
five factors in the Town Law 267 . And there ' s a
question whether you did that to the degree that
they wish , in the case of the Schlecht application .
It would appear to me the most constructive result
of this discussion , that you agree to go forward
with future deliberations with a closer eye to
those criteria . Perhaps you adopt a procedure that
some of the other municipalities use ' , where you
have a checklist or outline to be sure that what
the Town Board is after is accomplished during each
one of your meetings . You can follow through with
that concept in greater detail , but If the idea is
that,:. you improve - your performance procedurally ,
that is what the town board is after .
R . Marcus Con : I have trouble understanding what the real value is
of rehearing an existing case where first of all
you had , as I understand it from the record , there
was no objection voiced to the granting of the
variance . And secondly you have the underlying
facts , that what is being proposed to be developed ,
was already in fact approved by the town board . So
if you do rehear it , I ' m not sure what the real
value of rehearing this is . I can understand , as
I said before , that there might be some value in
trying to work more in line with the five factors
laid out in the Town Law . I can understand why the
Town Board would want to see that happen . Because
• doing it that way protects you guys , it protects
the town , it makes things easier for applicants .
I mean there ' s a lot of advantage to trying to add
20
some structure to the proceedings . But I would see
that advantage achieved by prospectively changing
your way of approaching the hearing . And I don ' t
really see how that ' s going to beiM pproved by
opening up an existing hearing that was not a
contentious hearing that resulted in no objections .
rooks : That ' s one of the few times tonight I agree with
Randy , except for one point . That is if we ' re
going to be prospective , and Randy I think
correctly points out , that it ' s in the best
interest of all of you and indeed the entire ZBA to
follow this procedure and have some kind of an
outline or checklist and so forth to make sure that
you do . I guess what I am questioning as I sit
here and listen to that , is why do we ignore what
already might be deficient in some fashion and just
go prospectively ? Why not apply that same
checklist procedure if you will , to this particular
application which has brought this thing to the
floor . And again , there ' s a distinct possibility
I presume that as Mr . Hanley mentioned in the votes
that you had , that you ' re going to when you make
that redeliberation , when you have that rehearing ,
that reconsideration which you ' re going to conclude
that it be , 267 - B has been complied with and the
area variance is appropriate . But you ' re going to
ask , I think , the questions which this checklist to
which Randy eluded to , are going to bring to your
attention . And that ' s really what we ' re asking
here .
J . Jay : Then we should rehear everything from the last
year . There ' s more involved than this , and we
can ' t get into it right now . I ' m still first of
all looking for , a reason to change our vote . I
personally , once again I can ' t speak for my fellow
board members here , but I haven ' t heard a reason to
change the initial vote that we had , in my case at
least . Like I said I don ' t want to speak for
anyone else . So the result will be the same . To
me it ' s , inconvenience I think is understating it
to the applicant . It ' s only making him an example ,
or he happens to be the guy that came over at the
wrong time .
•
21
•
M . Varvayanis : Let me try to take this on a somewhat different
tact . George has already stated that he would like
us to come to some type of an agreement this
evening . There has been some talk about whether we
should move forward in the future , obviously
everyone agrees we should try to be a little more
rigid in the future or whether we should look back
to the past . For the moment let ' s just say from
now on we ' re looking forward . We ' re dealing with
this one case in the past , even though we heard six
last week that we could already look at. .
The question I have is , this evening everyone ' s
been very nice , all we want to have you do is have
you rehear the case . But if you read this letter
it ' s pretty darn clear that Jim Schug anyway ,
thought we came to the wrong decision . How am I to
know from the other board members , because you need
a majority of the board , to actually vote to sue
us . Or what is it that you want to see us do ? Can
I start with you ? What is it your here tonight to
accomplish ?
R . Roberts : Stated he would like to find a way for the boards
to work together better . He understands there
seems to be a lot of friction between the members
of the Zoning Board and would like to find a way
that the Town Board . and Zoning Board could work
together better and to avoid a lawsuit .
M . Varvayanis : I agree with that completely and hopefully we don ' t
have to pay , I don ' t know what it is , seven dollars
a minute to combine all these attorneys to do that .
Tom , What would you like ?
T . Hatfield : I agree with what Ron said . Let me add just a
couple things . I guess being fairly new to the
process , what I heard as an issue being raised , I
don ' t even know if you ' ve considered this , was an
issue of law , legal facts . I think the discussion
here tonight pretty well lays that out . No one
really wants to see this thing develop into an
expensive legal battle . It ' s just going to be to
the detriment of the town , the taxpayers , and more
particularly to the applicant .
• I think we need to find a way to resolve this issue
and the easiest way to do it is to go back , make
sure that the record allows , supports the finding ,
22
•
and that it ' s legal . That ' s what I ' m very
interested in seeing happen , so that everyone can
go forward here . The easiest way to do that is to
rehear it , so be. it . That ' s the thing , I can only
come to the conclusion I have right here ,
everything that ' s being said and with our legal
advisories . I think we ought to go forward .
M . Varvayanis : My personal opinion on that is if you ' re worried
about legal problems , and you ' re the only ones who
object , and you ' re the only ones who brought
lawsuit , the easiest way to get rid of the legal
problem is to not bring a lawsuit . It seems pretty
clear if you don ' t push ahead with this lawsuit ,
nobody else will . In fact it ' s only a few more
days where if anybody wants . = __ _.. they could
apply a lawsuit .
R . Roberts : Isn ' t there an issue though that this , to defend
the discussion about whether this is a precedent ,
but if someone made the issue later on ? Say
something similar comes up two years from now , and
you deny it ? There ' s the issue that you may be
• setting aside the legal issue until later .
M . Varvayanis : Well as we pointed out , there are a lot of unique
features . First of all , someone would have a
terrible time proving that their case was exactly
the same as this . Second , as Mahlon has pointed out
to us so many times , just because you made a
mistake once you are not required to repeat it .
Charlie , can I ask what you ' re hoping to
accomplish ?
C . Hatfield : Reading through the minutes , I didn ' t hear you ask
Henry about the site plan the Town Board did on the
first application .
C . Hatfield : It ' s a one acre lot with a second building fifteen
foot ? ? ? and room enough for a third building and
the house was to be taken down at that time . All
on a one acre lot . I don ' t know what the testimony
was and if you really understood that: situation
entirely ? Did you have the original map , the first
one ?
J . Jay : Stated he put the maps up . I don ' t know if we had
the original . We had the one that the Town Board
Approved and there was an issue of a third
• building .
23
C . Hatfield : All on a one acre lot . He felt this was
substantial , and wished the Zoning Board to rehear
the issues . Those are my concerns . There was an
example just up the road there , they were in the
same shape . He had his parking 011 accommodated on
one end , crowded in right around the street . We
didn ' t allow it . He went on and purchased some
more land out back for parking and you see how that
place is full of cars on the weekends now , and it
was the best thing he ever did . I mean these are
things that we ' ve seen that are positive . Not to
go out and make two little bitsy lots that nobody ' s
going to be happy with in the future , not even
George .
M . Varvayanis : Again , that ' s something that we did think about .
It ' s a total of three buildings on one acre . And
now he ' s requesting to put two buildings on one
acre . The difference , whether there ' s an
artificial line down the middle and it ' s owned by
one person or two people , or it ' s owned by one
person with a line or without a line , to us it did
not seem significant . But whatever he does , he h, as
to go back to you . So if you have all these
• concerns about , oh it wouldn ' t look nice if he did
that , or he ' d need more parking space . I can ' t
imagine what building he could put up , one that
wouldn ' t require more parking , . That ' s your
problem .
C . Hatfield : We wouldn ' t have that problem if the variance
wasn ' t granted .
A . LaMotte : That is the object of this so that you escape that
charlie ?
C . Hatfield : I didn ' t say that .
A . LaMotte : But you said that you wouldn ' t be faced with that
problem if we hadn ' t granted the variance .
C . Hatfield : That ' s right . And you got the right to pretty much
do that .
J . Jay : One of the things that we are supposed to do I
believe is to uphold the integrity of the zoning
ordinance . To me , once again I ' m not a lawyer ,
that says ok , what was this reason created , what
• was the one acre lot ? So it doesn ' t make an
overcrowding situation . You guys already gave
permission to put another building up . So an
24
overcrowding situation is . . .
C . Hatfield : Three office type buildings were all going to be in
the same uniform pattern .
J . Jay : Then he ' s going to have to conform everything to
the zoning unless he comes with another variance to
put a used car lot or whatever . Which then , that
is a whole different situation . But , we can grant
him the variance , like I said , to us 'what is the
one acre law for ? You look at all up and down the
road 40% of the adjoining lots are , not conforming .
C . Hatfield : They are grandfathered in .
J . Jay : They are grandfathered in . But still that has to
do with the health and welfare of the neighborhood .
If every lot was a one acre square , and one guy
comes in and says I want to make this a half an
acre rectangle , well then we take that into
consideration , I would think as a board we ' re
charged to do that .
M . Varvayanis : Let me see . Perhaps I used the wrong word . When
I said that is your problem , I should have said
that is your opportunity . You still have the power
to make sure what goes on there satisfies you .
We ' re not up here saying , " there you go George ,
you ' ve got your half acre lot , have fun " . He ' s got
his half acre lot and whatever he does with it he
still has to go to you . So you have authority to
control what goes on there . I was somewhat
surprised that you got so irate , not you
particularly , this letter seems to imply that some
members were somewhat irate that we overstepped our
bounds . I don ' t really see where we did .
J . Schug : The reason we ' re asking the Board to rehear it , to
bring your findings to whatever conclusion they
come to , but do them to the letter of the law .
Suggested the Board substantiate that your findings
were done and deliberations were made in accordance
with the law . The reason for , and I ' m sure you ' re
taking it as a threat because you ' re saying that
we ' re all upset . On advice of attorneys , if
nothing is done by this Thursday , nothing can ever
be done . We all came here tonight , we ' re asking
your board to take a look at it and to review it .
• Use your findings , substantiate it , if your vote
comes out the same way you grant the variance . I
personally have no problem with that . If that is
25
•
what you chose to do , I have no problem with i t .
You ' re sitting there saying that the board is irate
and I get paid the big bucks to sign these
( letters ) . I don ' t like suing anybody anymore than
you like being threaten with this . It ' s not a
threat . It ' s the only alternative or out if you
fail to rehear the case . On attorney ' s advice , the
findings were not put down and substantiated
showing the hardship or whatever in this case , if
they were , there would be no problem . Like you
say , it makes the other variance null and void .
Anything that goes on , on this piece of property ,
which now is two pieces of property , does have come
to the town . Everything in the MA zone has to go
for site plan approval .
J . Jay : The applicant acknowledges that . In his letter he
said he realizes that he has to come back .
J . Schug : And the other one is gone . Now he has to find a
way to put a building on less than a half acre lot .
That ' s no problem , he can do that and apply to the
Town Board , and maybe everything will work,. out
The town board doesn ' t want to sue the a;;00 icdWr oR
• zoning board . If we hadn ' t put this to you so you
understood where we were coming from , you ' d
consider we like the way it stands . If it ' s done
legally and it ' s proper , I have no problem with it .
I don ' t believe the town board has a problem with
it .
M . Varvayanis : So then that goes back to our original point . If
you ' re afraid of legality , I ' m not sure exactly
what the fear is , that we ' re sitting a bad
precedent , or that you ' re opening us up for legal
action ?
If it ' s opening us up for legal action , don ' t bring
legal action and that point is finished . If it ' s
setting up a bad precedent as we ' ve discussed quite
a bit , we don ' t feel that , that is a problem .
A . LaMotte : Is this , our findings and our action in this case ,
totally inconsistent with the other 20 or 30 cases
that we ' ve heard in the last year ? Jim or Charlie ,
any of you fellows on the town board , Mahlon ?
M . Perkins : I think that it is in at least one respect . And
that is , I can ' t recall another case where there
• has been this substantial amount of relief granted .
26
•
A . LaMotte : Well that , is not the question . I ' m talking about
our procedure . That seems to be the ,
Yoh,, VnJjwk �- to us through Mr . Hooks , that the concern
was not with the results that we ' ve achieved rather
than the method we ' ve used to achieve these
results . In other words , our technique perhaps
we ' re lacking there . And so my question is , was
this totally out of character for us , or is this a
pattern that you see in looking over the other
variances we ' ve granted in the last 12 months , or
last 24 months ?
M . Perkins : I ' d be glad to speak to that . I think if you were
to graph the performance of the zoning board of
appeals from strictly a procedural point of view ,
it would follow a SjWe, Curve where peaks of
compliance , there are periods of falling off , and
then there is good compliance and your findings are
supported by the record . You make all the findings
that are necessary to support a decision , and then
you fall away from that , maybe in some , even in one
evening . Some of them you ' ll have more trouble
with than others . Tonight I thought you were
really getting in toward the findings that you
needed to make . When we do our critique I ' ll talk
to you in detail about this . I thought that this
record was a little confused .
A . LaMotte : I ' m somewhat gratified that you give us credit for
at least achieving a peak there Mahlon , once in a
while . This is characteristic for us Mr . Hooks
it ' s nothing out of the ordinary at all . If we
have , as Mahlon suggests , periods of where our
performance is not up to the standard he would
like . I think the question comes about , why all of
a sudden we have a hell of a to do over this
particular case ? Why not over the ABC case we
heard in February or March , or the XYZ case we
heard last November ? Why , what prompted this ?
E . Hooks : I can ' t necessarily speak as to what exactly did
it . I can say that here you ' ve got , as Mahlon made
reference , a very substantial variation we ' re
talking about to take one acre and chop it in two .
And you ' ve got four fairly skimpy reasons , or
fairly skimpy findings which are set forth at the
end of a 53 page, debate . Fairly heated debate I
might add , for some period of time . And I guess ,
looking at those findings , when measured against
• section 267 - B , and given the substantial nature of
the change that is involved , the variance that is
involved . Again , I can ' t speak to ABC and XYZ but ,
27
•
in this particular instance it appears to be
deficient .
M . Varvayanis : I ' ve got a question on that statement I ' d like to
get to later , but first , Nick asked the question as
to what prompted this . We have four of the five
people who decided to do this , none of them decided
to say anything . Why don ' t we go right , like we
did last time , why don ' t we start with Jim , since
your signature is on the letter . What prompted you
to ask Mahlon to write the letter ?
J . Schug : Comments were made to the following , and I had no
idea by two people who were at the meeting . Your
comments , when you called me , about Anne leaving ,
the discussion we had . That is what prompted me to
ask her to get the minutes ready , and the findings
ready that she , Jean , tries to do . And all I
did . . . . . without the minutes . . . Mahlon had a copy . .
send it down to him and said is what transpired , we
believe acceptable , without setting precedence and
was it done properly and report back -to the Town
Board .
• M . Varvayanis : So your problem again is setting a legal
precedence . Is that the same with you Charlie ?
C . Hatfield : Yes , in the MA Zone . Stated he couldn ' t recall if
the Board has heard any variance request for the MA
Zone ?
The Board Noted for a parking variance and the Dunkin Donut sign
the same evening .
J . Jay : Once again , that shows the uniqueness of the
situation .
When asked by the Chair : " What prompted you to go along with
this Letter ? I assume there was a majority approval at the
writing of this letter . "
All Town Board Members present stated they were concerned
that the Zoning Board may be setting a precedence and also
concerned that the Zoning Board may not be following proper
procedure i ' n substantiating findings . In addition to that , one
had concerns with the number of buildings .
• C . Hanley : Well as long as we ' re pol -ling people , amongst my
col1A.ges here . I ' ll go first . What are your
objections to the rehearing . Even though I ' m
28
almost certain to get my head beat in again on this
one . I have no problem with spending another night
on this clarifying things if it will save the town
a little litigation . It means Mt . Pleasant gets
salt this winter . Nick do you want to ?
A . LaMotte : Noted that maybe the Zoning Board would be setting
precedence in that at any time that we displease a
member of the town board that we ' re threatened with
a lawsuit .
C . Hanley : Is this the first time we ' ve displeased the Town
Board ? Is this the first time in history we ' ve
displeased the Town Board ?
A . LaMotte : No , we displeased them back in 87 or 88 I believe ,
with the same results .
J . Jay : This to me , looks like we ' re talking about a number
of , it ' s that we goofed up by not stating what we
discussed properly . We spent a lot of time on each
issue , the welfare of the neighborhood , is it
substantiated , we all agreed . We went down the
list , was that put in the record properly . . . The
• problem with not putting in the record properly is
the fact that we could get sued . In the meantime ,
our town board , the people who appointed us are
wanting to sue us . There is nothing that I ' ve
heard that is going to alter what we ' ve discussed .
Another way of doing this , then spending thousands
of dollars in legal fees , then inconvenience to the
applicant because of our mistake . Can we get
together as a board , can it go in the files ? If we
wrote a letter saying this is based on it . It ' s
not a legal thing the minutes have not been done ,
but it ' s to show ten years from now that we ' re
worried about a lawsuit . Is there any other way we
can do this ?
R . Marcus : Do you keep a recorded tape of all this?
M . Varvayanis : Yes we do .
R . Marcus : Are these still available from the September
meeting ? Could the tape be transcribed to . . .
M . Varvayanis : I thought you had already seen it . So that was
going to be the question I said I wanted to get
back to you on . Maybe the findings aren ' t quite
• appropriate , but I think all the issues are
discussed in here , which is a part of the record .
Isn ' t that , I mean when litigation came out
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wouldn ' t this entire transcript be part of the
record . Wouldn ' t that all be considered .
E . Hook : It would . I think there are some , any transcript
of any hearing I think has some areas where there
could be some problems . There are some statements
that are made , I ; think with one point , Mr . Schlecht
I think actually said " all I ' ve got to prove is
hardship and settle for my variance " . Well that is
not true . That , is just simply not right . And if
you were your ( . . promising . . ) your determination on
that basis , without making the other four
determinations , it would not find out in doing
that . Looking at the evidence to support those
other four factors then you are wrong . I do want
to say one thing by the way , in response to what
Mr . Jay just mentioned , and that is he said the
Town wants to sue us . We don ' t . The Town doesn ' t
want to , we too , as you said , want to make sure
that Mt . Pleasant road can get salted this year .
But there is a concern , I think there is a concern
to make sure , I don ' t think it ' s quite that simple
to simply say well we goofed up , we didn ' t put
• everything down that we should have put down . I
think it ' s a case of asking some additional
questions on a couple of these points . The answers
to which perhaps we even heard tonight from Mr .
Schlecht . But get some more information , work
within the confines of that particular section that
we ' re talking about , make the determination , and
what does that do ? Yeah it protects you from a
lawsuit .
E . Hooks Con : And yes it protects you from having 'somebody point
a finger to this situation and say , look you made
four findings which weren ' t necessarily in
compliance with section 267 - B of the town law . It
gave him the opportunity to chop his property in
half , in an MA zone , now we want that right . And
I think that is what we ' re trying to do here . I
think what we ' re doing , instead of by the way ,
coming right out of the blocks and saying on
September 7th , ok now we ' re going to start an
article 78 action because we think you screwed up .
We are coming back and we ' re saying what ? It ' s in
the best interest of the board of zoning appeals ,
it ' s in the best interest of the town board , and
the town as a whole to reconsider this thing and
have a rehearing . My understanding too by the way ,
• I don ' t want to drag Mr . Schlecht through this
whole thing . But I also understand that there is
no tenant out there for the property at present .
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And I also understand that the property is not
about to be sold to anybody , and I also understand
that there isn ' t any present , any particular fast
iv', eed to be able to get this building built within
the next week , two weeks , or whatever the case may
be . So I think that a rehearing , taking these
points into consideration , making the
determination , whatever it may be , is in the best
interest of yourselves , of Mr . Schlecht , and of the
town .
J . Jay : What do you think of that ? What kind of
inconvenience are you talking about Mr : Schlecht ?
Well other than coming back for a Tuesday night .
G . Schlecht : Well it means probably coming back from Florida .
The concern that I had , is that even Mr . Hooks, ,
slips back in from just a procedural question that
we ' re worried about , which seems to me can be
addressed without a rehearing . Then slips back
into some more substantial questions . And I think
it should be pretty clear to most people here that
there is no sense in having a rehearing unless
they ' re really interested in investigating a
• substantial problem .
C . Hanley : We haven ' t even had a chance yet to go through the
record . There is already a couple of things that
look a little bizarre to me . The Town Board is
under a time constraint because they have to move
by Thursday and all they have as a recourse is to
go to court . In which case we go to court with
this document we haven ' t even had a chance to look
at yet . And all we have to do is wait . Even read
our own minutes , find out if this stuff in here is
actually right , which is what we ' re going to be
called on to defend ourselves in court . To me , to
wait a little , a month is not a big deal . There is
stuff in here , that is just on a cursory look ,
which is all I ' ve had the time to do . It bothers
me . Either there ' s stuff we didn ' t say or if it
was said may not have been correct . And this is
it . This is what we ' ll stand on . I have a . . .
E . Hooks : There is one point there in there that I
particularly enjoy , which is something to the
debate ( ? ) about marxism .
R . Marcus : I could feel certain that Mr . Hanley is correct
• that there are things in the minutes that need to
be edited . I sit with the town of Ithaca zoning
board and I represent the Village of Lansing and
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it ' s common practice when minutes come back , that
a significant portion of each meeting is devoted to
editing and correcting the minutes . Often times
what happens on a tape , I know from past
experience , is people are talking at the same time ,
or one person cuts another off , and the statement
gets garbled and the way it comes out on paper
isn ' t exactly what was said . It ' s sometimes can ' t
be understood on the tape and corrections need to
be made . I think that is part of your process ,
that is part of following the procedural
requirements and` I would strongly recommend that ,
that is always done in case of accepting anybodies
minutes . Likewise , in comparing this situation to
how other municipalities have dealt with similar
problems . It would make good sense to me that ,
since all the issues either have been or are in the
process of being, brought to light , the Town Board
has expressed certain concerns with the procedural
conformity . You folks seem very receptive to what
their concerns are in the sense of acknowledging
that there are certain procedural requirements that
have to be followed . Where these issues have come
• up , at least in the Town of Ithaca and in the
Village of Lansing , they are ordinarily handled by
meetings along these lines , between the two boards ,
which result in a new understanding . An agreement
by one board to do things differently , and
everybody gets on with their responsibilities as
board members and moves ahead . The circumstances
where that is not done , would be where a lawsuit is
brought by someone , and it ' s not commonly another
board , but if someone is objecting to the action
that the one board has taken . Certainly then ,
there is a different interest in protecting the
town from a lawsuit that is generating from another
party . If there was a situation here where that
kind of protection was necessary , I would think
that your board would most likely agree with the
Town Board , that you want to rehear it . To build
those defenses of the town against the third party
lawsuit . But in a case where that isn ' t the fact ,
where you are acknowledging that there are
procedural requirements that need to be followed ,
whether or not they were in this case , to the
standards that the Town Board would like to see , I
think it serves as a good lesson . It serves as a
starting point , a good example to adopt some new
way of doing business . I still have a lot of
• trouble understanding what the value is to the Town
as a whole , to have this matter heard over again .
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M . Varvayanis : That is what I was going to say , you ' ve summarized
my feelings quite well . You , as I understand ,
don ' t feel that there is a dangerous precedent set .
You feel that while this meeting probably wasn ' t
done with 100% efficiency and not in the best way
possible , that it certainly gives us a point to
move forward . From five members of the Town Board
that at least the major reason they want to have us
rehear this is to improve our position and to not
risk a dangerous precedent in future litigation .
Since you ' ve heard from at least one attorney that
they don ' t feel that this is necessarily setting a
dangerous precedent or opening us up to future
litigation . Do you all still want to go ahead with
the judicial review if we don ' t rehear the case ?
J . Schug : The Town board has already voted on that . The
only reason to go on with the litigation is because
of the time constraints . Mr . Schug noted that if
the Zoning Board refuses to rehear the case and an
Article 78 is commenced it can always be withdrawn .
A lawsuit doesn ' t say that we have to go to court .
We have to defer to the attorneys " what is in the
• best interest of the Town " . It is up to the Zoning
Board Members if the case will be reheard .
M . Varvayanis : It has to be a unanimous vote to rehear the
variance . My point was not to ask for an official
Town Board vote , just the general feelings of the
people who make up the town board .
The Town Board again stressed they would like to have the Variance
reheard because the relief is very substantial , and let the facts
and the record support the decision / findings .
Meeting was adjourned for executive session .
MEETING WAS REOPENED AT 11 : 00 PM
• The Acting Chair , M . Varvayanis reopened the meeting of
October 4 , 1994 .
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. . . . . . . . . . . . . . . . . . . .
JOSEPH JAY MOVED THAT THE ZONING BOARD OF APPEALS RETAIN THE
SERVICES OF BARNEY , GROSSMAN , ROTH AND DUBOW ,
SECOND BY CHARLES HANLEY .
DISCUSSION :
VOTE : YES ( 4 ) M . VARVAYANIS ; A . LAMOTTE ; J . JAY AND C . HANLEY
NO ( 0 ) ABSTAINED ( 0 )
. . . . . . . . . . . . . . . . . . . .
•
ALAN LAMOTTE MOVED THAT THE ZONING BOARD OF APPEALS MEET ON
NOVEMBER 1 , 1994 TO HEAR THE GEORGE SCHLECHT AREA VARIANCE
APPLICATION FOR THE PURPOSE OF CLARIFYING AND BETTER DESCRIBING
OUR FINDINGS .
SECOND BY JOSEPH JAY ,
DISCUSSION .
VOTE : YES ( 4 ) M . VARVAYANIS ; A . LAMOTTE ; J . JAY AND C . HANLEY
NO ( 0 ) ABSTAINED ( 0 )
•
CHARLES HANLEY MOVED THAT THE ZONING BOARD THROUGH OUR TALENTED
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AND HARD WORKING REPRESENTATIVE MAKE A COPY OF THE DRAFT MINUTES
AVAILABLE IMMEDIATELY TO MR . SCHLECHT WITH THE UNDERSTANDING THAT
THEY HAVE NOT BEEN APPROVED OR CONSIDERED BY THE BOARD AND WILL BE
, BX THAT NOVEMBER 1ST . MEETING .
ALAN LAMOTTE SECOND THE MOTION
DISCUSSION :
VOTE YES ( 4 ) M . VARVAYANIS ; A . LAMOTTE ; J . JAY AND C . HANLEY
NO ( 0 ) ABSTAINED ( 0 )
The Chair . asked if there was any further business to come
before the Board tonight ?
When there was no response a motion was made by Joseph Jay
• and Second by Charles Hanley to close the meeting . Meeting
adjourned .
jr
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