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HomeMy WebLinkAbout1994-11-01 0/100 • - Ofa � 1 TOWN OF DRYDEN ZONING BOARD OF APPEALS NOVEMBER 1 , 1994 AGENDA : 7 : 00 Executive session with ZBA attorney Randy Marcus . 7 : 30 Peter and Ann Martin of 630 Snyder Hill Road , Ithaca are requesting permission to construct a replacement detached private garage and storage structure closer than the RB Zoning District requirement of 70 feet from the center of Snyder Hill Road . Applicant appeals Section 703 . 1 RB Zoning District . 7 : 45 Patricia Schlecht of P . O . Box 1108 Dryden , New York is requesting permission to divide a conforming MA Zone lot into two non - conforming lots and is appealing Sections 1206 . 5 of the MA Zoning District and General Regulations 500 . 3 of the Dryden Town Zoning Ordinance . • MEMBERS PRESENT : Acting Chairman , Mark Varvayanis ; Joseph Jay , Alan LaMotte ; and Atty . Randy Marcus . Also present but not limited to : Edward Hooks , Patricia Schlecht , George Schlecht , Geneve Sopp , Don Sopp , Ronald Roberts , Charles Hatfield , Peter Martin , Mark Ashton , Clint Cotterill , Leona Cotterill , and Henry Slater . The meeting was , < called to order by Acting Chairman Mark Varvayanis at 7 : 45 pm . Joseph Jay moved to approve the minutes of September 6 , 1994 with additions and corrections as noted by the members present . The motion was second by Alan LaMotte and unanimously approved . PUBLIC HEARING FOR PETER AND ANN MARTIN Mr . Varvayanis stated that Peter and Ann Martin are requesting a variance to Section 703 . 1 of the Zoning Ordinance . They want to build a 24 ' x 25 ' rectangular detached garage less than 70 feet from the center line of the road . • The Chai r noted that thi s i s an area vari ance i n a RB zone and read the criteria the board must consider in granting an area variance as follows : 1 Upon an appeal from a decision or determination of the administrative official charged with the enforcement of such ordinance or local law to grant an area variances , as defined herein . In making its determination the Zoning Board of Appeals shall take into consideration the benefit to the applicant if the variance is granted as weighed against the detriment to the health , safety , and welfare of the neighborhood or community by such grant . In making such determination the board shall also consider : whether an undesirable change will be produced in the character of the neighborhood or a detriment to nearby properties will be created by granting of the area variance ; whether the benefit sought by the applicant can be achieved by some other method , feasible for the applicant to pursue , other than an area variance ; whether the requested area variance is substantial ; whether the proposed variance will have an adverse effect or impact on the physical or environmental conditions in the neighborhood or district , and whether the alleged difficulty was self created . M . Varvayanis : Part of our usual procedure is that a certified letter be sent to the chairman . Unfortunately the chairmanship switched very recently to me . I never got a certified letter . I was wondering , did you send one to me ? P . Martin : Quite a long time ago , a month . ( There was some discussion about whether a certified letter was actually sent and to whom . Also whether it was necessary to receive the letter . As there was proof of filing the Board determined to proceed with the hearing ) . M . Varvayanis : We have a couple of letters I would like to read into the record . The first is from Michael J . Pitchell : " Dear Sir : I am a neighbor and property owner within 500 feet of the proposed site where Peter and Ann Martin are requesting permission to construct a replacement detached private garage and storage structure closer than the required 70 feet from the center of Snyder Hill Road . Martins premisses is one of the nicer home sites on Snyder Hill Road . The Martin site is a credit to our community . The replacement of the garage and storage structure will enhance the area . I urge the Board to approve the application . I am unable to • attend the hearing and request that my unsolicited letter be read into the record in my absence . " 2 There is another one from Margaret Morse : " My husband and I wi 11 not be attendi ng the November 1 st M . Varvayanis : hearing regarding the property at 360 Snyder Hill ( cont ) Road . However we would like to say that we are not opposed to the construction of a new structure on the proposed site . " Is there anything you would like to add to your application ? Peter Martin : I am Peter Martin of 630 Snyder Hill Road . This is Mark Ashton who designed the structure . We would be happy to answer any questions the Board has based on our application for the variance . The story is a very simple one . We ' ve lived , my wife and I , in the house since 1980 . When we bought it it did not have a garage . When we bought it , it had , and still has a barn across the road , and really quite close to the road , that we use for storage . The precipitating event was the discovery this spring that the barn was structurally unsound and had to come down . When we learned that , we realized that we weren ' t as young as we were in 1980 , and that a garage might be a good solution . Essentially the garage will go , roughly in relation to the road and the house where there is gravel parking today , and has been since they built the house . There are detailed plans submitted with the application . As I said , we ' d be happy to answer any questions . M . Varvayanis : Does anyone have any questions ? J . Jay : Are the neighboring houses up and down the street conforming ? Peter Martin : It ' s a bit hard to talk about neighboring houses because there is a lot of separation between our house going in both directions . Going immediately west you come to a cemetery and then a the white prim church and then a small house . Going the other direction you pass a bottom land that we own before you come to another property on our side of the road . The principle non - conforming structure there is our barn . M . Varvayanis : Which would be coming down . Randy Marcus : Could you explain the time table that you envision for the demolition o the old structure CUr�kthe constructLa%vN 71&L /TraAm- z M1 3 i Peter Martin : Certainly , new up before old down we need to move things from one to the other . Mark , do you what to give them the timetable on the new up ? Mark Ashton : We would like to get it built before Christmas . Peter Martin : And then the Barn would come down in the spring . HEARING OPEN FOR PUBLIC COMMENT M . Varvayanis Does anybody else have a comment about this ? Questions ? A . LaMotte : Do we have any communications , the Town Engineer , that should be entered ? M Varvayanis : The Town Engineer has looked at this site on October 17th and the proposed setback and garage is not a problem with _ traffic safety or future road work within thep,84e,rof way of Snyder Hill Road . I ' l l close the hearing on thi s and we ' 11 di scuss now another case and then we ' ll deliberate later and vote this evening . You can either wait if you ' re interested or you can call Henry in the morning and hear the decision . Thank you . PUBLIC HEARING FOR PETER AND ANN MARTIN CLOSED PUBLIC HEARING FOR GEORGE SCHLECHT ( 8v00pm ) M . Varvayanis : Now we are going to reconsider an application from Patricia Schlecht requesting to divide the property into two separate lots which would not conform to the required area . Is requesting permission to divide a conforming MA Zone lot into two non - conforming lots and is appealing Section 1206 . 5 of the MA Zoning District and General Regulations 500 , 3 of the Dryden Town Zoning Ordinance . Again this is an area variance • and the things we consider are the same as in our first case this evening . 4 • M . Varvayanis : Would someone like to make a motion to include the minutes and all existing records we have into this ? JOSEPH JAY MOVED TO INCLUDE THE MINUTES FROM THE SEPTEMBER 6 , 1994 MEETING . Randy Marcus : I would a friendly amendment , not that the existing Minutes but that the entirety of the record on September 6th . hearing and deliberations , lI) e. VA `tonight ' s record.OC� Am ALAN LAMOTTE SECOND THE MOTION ' =rf4 @rleY me( T' VOTE YES ( 3 ) M . VARVAYANIS ; J . JAY ; and A . LAMOTTE . NO ( 0 ) ABSTAINED ( 0 ) M . Varvayanis : George , is there anything you would like to add ? G . Schlecht : I ' ve looked at the minutes and some sections you . read what you say and say , " that sounded pretty good " and then other sections you say , " is that me ? " . But by in large I thought that the minutes reflected the meeting less the body english that can ' t be transcribed . I see no reason to ( . . introduce more into the record ? . . . ) . HEARING OPEN FOR PUBLIC COMMENT M . Varvayanis : Does anybody else have any thing they ' d like to comment on ? D . Sopp : . We are here to find out what your decision is going to be on this . I don ' t know if I should speak before your decision or after your decision , I don ' t know when . I am not familiar with the rules . Or if it ' s valid for me to question what might be the decision that wou ''ld effect what we might want to do with our property . In a similar fashion what George request . Randy Marcus : Technically this is the open public -= - f the meeting in which anyone from the public has the opportunity to comment . As a technical matter once the public hearing is closed , the public doesn ' t have any right to provide any further input . So 5 R . Marcus : now would really be the time to speak . However , ( cont ) comments should be directed toward this application and if the comments are really questions about other things that might be more appropriate for after the decision . 5*The Board will be willing to entertain that , other questions that would be valid as well . D . Sopp : In the previous meeting you indicated that you granted the variance . Then the notice that we just received , it stated that the decision that you made would stand on this variance would not be applicable in the future on any similar requests . Are you setting a precedent and then deny that precedent for future or similar requests ? M . Varvayanis : Well , a precedent and a precedent . There are a lot of extenuating circumstances . Not everybody can come i n with any piece of property and start drawing lines and dividing it . Randy Marcus : Mark , I ' d like to respond as well . Just as a general matter , and it ' s really nothing to do with the Schlecht ' s question or any other property . The way that the State Law works in Mconnection with granting variances 4he State Law is very explicit . It comes right out and says that Zoning variances are not supposed to be precedent setting the way a decision in a court case would be precedent setting . In other words , if a court said Party X is right , ' under these particular facts . And then two years later the same exact , or very similar facts arose , and somebody else came to court , the Court would be bound to follow that previous decision . That is basically the meaning of precedent , and it does work in every case that Court makes a decision . It is supposed to be precedent . It is supposed to be the basis for future decisions on those same facts . The decisions that the Zoning Board makes are very different for a couple of reasons . The Zoning Board is an Administrative body as opposed to a court which is a Judicial body . I only point that out not to get technical but to point out the fact that the law works a different way when you get in an administrative decision vs a judicial decision . The administrative decision that a Zoning Board makes is supposed to be tied very specifically to the particular facts that are presented in a particular variance request . The Zoning Board is specifically told by its State Law , that you are not supposed to use your decisions , your past decisions as 6 • Rand Marcus :: precedence for future decisions . That each case ( con ' t ) has to be evaluated on its own facts . One of the reasons for that , that some of the Courts have explained in trying to describe that requirement , is that every piece of property is unique . That is one of the things about property that can ' t be disputed . Because of the location , the shape , size , or anything else you might care to mention about any particular piece of property . It is different from every other piece of property . The courts have tried to explain that when a board like the Zoning Board makes a decision about one piece of property that decision is supposed to relate to that piece of property given it ' s size and shape and location and use and zoning district and every other factor . So that when another piece of property comes in they should wipe the slate clean and look at that next piece of property on account of its features and not on account of what similarities it might have to some other decision that the Board may have made one meeting earlier , or a year earlier , or five years earlier . The Zoning Boards decisions are supposed to be under applicable state . law stand alone decisions relative to each particular application at the time it is made . There is some real , I think clear logic to that requirement because in an area variance basically what the Board is deciding is how the request is going to impact the surroundings , the neighborhood . And that can change a lot as time goes by . If the Zoning Board were making the decision on an area variance ten years ago the surroundings may have been very different and the decision would have had to have been very different . The impact would have been different , Ten years later they can ' t use that old decision as a basis for making new decisions . That ' s one of the reasons why the courts have been emphatic about Zoning Board decisions not being precedent set . G . Sopp : ( referring when her son talked with the Zoning Officer ) . . . . af ter' he went in though , to make an application for the same size lot and . said ' don ' t bother because it doesn ' t comply ' . So . . . . decided it wasn ' t going to work and then we find there is an application for the very same thing : 7 H . Slater : That is sort of correct . What happened was , Don came in my office and wanted to made an application to build a structure on a portion of similar sized lot that already had two improvements on it in the same zoning district . I told him it would require a variance . He asked me what I thought the chances of that were . Expressing my own opinion , I thought slim to none . Mrs . Schlecht applied for a variance to split her lot , not to build something on it , so there is some inconsistency with what Mrs . Sopp says . But there were two different approaches . Of which I wouldn ' t have had any authority to give a building permit because they didn ' t have a variance to build on that lot which was substandard , and It would have made it substandard further than it already was . Joseph Jay : If I understand this correctly , we are talking about a possible thing down the road . I think we should be talking about the Schlecht case . I know Mr . Chair it ' s up to you but this is a different situation . If you want to find out what we base our decision on then the findings I believe , are available to the public . Find out what the criteria • are , the five things , and why we made our decision in which way . Don Sopp : In the announcement it appeared to say , don ' t bother asking for this type of variance down the road . After retrieving a copy of the documentation the Board members present did not interpret it the same way Mr . Sopp did . H . Slater : This is what he received . This is what we sent to all the neighboring and adjoining property owners , inviting them to come here to the hearing . This is telling what the ordinance requires so you can understand why the applicant is here . This isn ' t telling you to not bother to do anything . This is explaining what the ordinance currently requires . That is what they are appealing . That is what you have a copy of . Everybody on this list got that letter . That is the private property notice . Don Sopp : Acknowledged he misinterpreted the notice . H . Slater : Well don ' t read between the lines , just read what is there . 8 A . LaMotte : Could I pose another question to Mr . Slater ? That is relevant to the answer to Mr . Sopp ' s question on his statement . Any plans of his in that , same MA Zone would have to go for site plan review . Is that correct ? H . Slater : He ' d have to apply for a variance before he could do anything because his lot is already utilized to what MA Zone permits . The lot they have , they originally had three parcels A , B . and C . Which were where a lot of people park for O ' Briens , where O ' Briens is and where Dunkin Donuts currently are . Don Sopp : Three separate lots . H . Slater : There were three separate lots . Sometime prior to the existence of the MA Zone being formed , they combined them into one lot , Into one , one acre lot . A . LaMotte ? Who is they ? H . Slater : The Sopps , Henry Slater suggested that the inquiries The Sopps were making were not relevant to tonight ' s hearing and should be further discussed at a later date . R . Marcus : One thing that is clear , if I understand right Henry , . . H . Slater : I did not give them permission to build another building . R . Marcus : Which gives them the right to apply for a variance . H . Slater : To go see the Zoning Board , right . They asked me my opinion , and my opinion was unfavorable . But again it was only my opinion . M . Varvayanis : Getting back to Patricia Schlecht ' s case . Does anybody have any comments or questions ? Ed Hooks : I do have a couple of comments as you might suspect that I would . As I read this , the issue on this reconsideration remains the same as the issue originally . Which is can Mr . or Mrs . Schlecht borrow to buil', d commercial property without splitting this lot ? Can she obtain the financing ? 9 Ed ,Hooks , I think from the threshold question that I would ( con ' t ) di spute the fi nal fact that you made to suggest that this is not a substantial variance . I think clearly it is . You ' ve got a 50% variance is what you are essentially talking about . That is a substantial , I think , variance by any definition . And I don ' t think that , that is altered by virtue of the fact that there was site plan review with respect to the property done in 1990 , nor the fact that there have been other properties which supposedly are not in compliance . Because I think Mr . Schlecht even indicated during the previous meeting that those buildings which were not in compliance either pre - existed or I think he even said were in a different zone at one point . That is page ten of your prior minutes . I may have misread that but that is what I saw . At any rate , I don ' t think either one of those two factors really alters the fact that this clearly is a substantial variance that you are dealing with here . I think the principle problem that I have , of the stand point of the Town Board , is really with the standard of proof which you were using to evaluate this application . I think Mr . Jay said at the last meeting , I know the way Banks are run and I believe what Mr . Schlecht is saying . I ' m not saying we believe or don ' t believe what Mr . Schlecht is saying . I think it is just a question of has he come forward with enough proof ? Proof that you should be using . : The question has already come up tonight about precedent . I agree with what Mr . Marcus said concerning precedent . That is true , theoretically , But you are going to have the same questions asked that you just heard tonight . When you have those questions asked , I submit that you should try and set a standard for evaluating these things . It might be , and should be , a standard beyond just having the applicant tell you ; believe me when I tell you it ' s impossible for me to get financing . Believe me when I tell you that I have attempted to market this property for a long period of time and I can ' t sell it . Believe me when I tell you that the only way I ' m going to be able to take care of my financial problems with this property is if you permit me to split it . 10 Ed Hooks . I know George Schlecht . I know he ' s a very honorable person and there is really no reason for You to disbelieve him . I am saying , are you going to get into a position where you are going to have to make credibility determinations with respect to the various applicants who come before you ? Is it going to become a personal matter ? Are you going to decide to believe this individual rather than that individual ? Or are you in point , in fact going to say to these people when they come before you that it ' s not that we are not believing you or we di sbel i eve what you are tel 1 i ng us but we would 1 i ke some proof . What kind of proof am ,X talking about ? It ' s proof that the New York C�ouaT of Appeals in one case has suggested is something that should be looked at . An appraisal o-F- the property . Some kind of dollars and cents proof if you will . Is there an appraisal for the property ? How is the property marketed ? By whom was it marketed ? For how much was it marketed ? For how long was it marketed ? Is there a listing agreement of some sort that is existing with respect to this property ? Has it been on the market for such a long period of time that indeed it can ' t be sold ? How about the financial institutions ? To whom did you apply ? When did you apply ? For how much money did you apply ? For what purpose did you apply ? Was it just one financial institution , was it three , was it four , was it five ? How long have you gone through the application process ? The insurance questions . I raised that the last time . I raise it again this evening . I think there has to be a question as to , at least there was in my mind when I read these minutes , was this rental property insured ? If it was insured what happened to the proceeds ? Was the rental home mortgaged and if so how was the mortgage paid off ? And if it was paid off in some fashion through insurance proceeds I suggest to you that indeed who ever held that mortgage should have been able to loan some more money to do something on this property . What we are talking about here is proof of significant economic injury . I suggest that you need , I think the case law in my view , and maybe Mr . Marcus would disagree with me on this . I believe • that the case law says essentially that if you come in here and you say my property could be used more 11 Ed Hooks , profitably if you gave me this variance . I think ( con ' t ) the case law is very clear that says that is not enough . And I say that essentially what we ' re hearing here tonight is , said a different way , it would be viewed more favorably by financial institutions . I have a difficult time seeing how that is a lot different rather than coming in and saying my property could be used more profitably if you permitted me to have this variance . As opposed to saying my property would be viewed more favorably by financial institutions if you gave me this variance . To me it ' s the same thing , If you ' re going to grant a variance on that basis I think you have to go back and start to ask yourself those types of questions and seek the type of evidence that I ' m suggesting . I want to make this very clear . That neither myself nor for that matter this is not some personal agenda . We have no reason to scuttle Mrs . Schlecht ' s application for this area variance . We are simply suggesting on behalf of the Town Board that when you analyze this and when you evaluate it set yourself a standard to do it . Again I go back to , I think the fundamental question that comes before you . Are you going to end up in a situation where you are going to have to assess the relative credibility of each and every applicant who comes before you ? Joseph Jay . Page nine . . . M . Varvayanis : To Mr . Schlecht : Last time you offered to show us letters from your banks . Did you happen to bring those with you this time ? G . Schlecht : I have two letters . One from the Dryden bank which we had read . . . . . I think for you it would be obvious . That you can ' t remortgage a property that is encumbered with a mortgage already . And a second letter from the Trust Company which gives the opinion that the property would be more easily financed if it were two separate pieces . M . Varvayanis : Would you mind bringing them up here . While he ' s looking I might ask , he kind of threw the gauntlet down saying you might have a different opinion on case law . I thought that financial hardship was one • of the things we were supposed to consider and I ' m surprised to hear forget financial hardship that doesn ' t mean diddledy squat is basically . . . 12 s Ed Hooks . No , don ' t misunderstand me . I ' m certainly not saying it doesn ' t mean diddledy squat . What I am saying is if you are going to talk in terms of economic injury or financial hardship there is a certain standard of proof . And that standard of proof , as I read it , requires that you come forward with more than just saying that my property could be used more profitably or could be more financially advantageous to a bank or viewed from a bank standpoint if you permitted me to divide it . I am saying you have to prove that in some fashion through documentation , through some outside sources . At least in my reading of the law . G . Schlecht : This is certainly not meant to be argumentative because I am not qualified to do it . I would just point out that the letter that was written by the Town Attorney origina questions the propriety based on the fact that it was their opinion that it was reduced to a personal financial question . Now a personal financial question was in fact not appropriate . I think what I ' m hearing is basically the opposite now . They ' d like to audit. me now but really what I have to show is a personal financial hardship . There is an inconsistency . M . Varvayanis : I think we ' ve all agreed that the original letter really was nos diplomatically. Ot ' s not effecting what we are thinking right now anyway . R . Marcus : I was just taking a look at a couple of notes while Mr . Schlecht pulled those letters out . George , were you able to get copies of that ? I don ' t disagree with much of what Mr . Hooks explained . It is entirely correct that you need to base your decision on some issue of proof . - To rephrase what he said I would advise that in every case you obtain from the applicant as much proof as is available . You have to obtain enough proof to reach the point where you ' re satisfied that the applicant has established the answers to the questions you ' re looking at . Mr . Hooks pointed to one standard that isn ' t actually part of the text of the law but it has been developed by the courts and that is this standard of significant economic injury . That is a catch phrase the courts have come to use as to what has to be proven to grant an area • variance . That is a lower standard than what the courts call hardship . And in talking about these things unfortunately the terms start getting 13 Randy Marcus : intermixed and sometimes we talk about hardship ( con ' t ) in any case but hardship is really intended to reflect a higher standard . A more difficult to reach standard . This significant economic injury is what the courts have said is- s; proven by a showi ng that the appl i cant i s not goi ng to be abl a to deri ve the value from the property that they either intended or had a reason to expect . In another way of saying it that they could derive if it weren ' t for some particular element of the zoning law . That is sort of the nature of an area variance . There is some requirement that they are seeking to avoid which by avoiding they can derive some economic benefit . I am expressing it in a positive sense . I am saying if they can get a variance they will derive an economic benefit . The way Mr . Hooks was describing it , it ' s the opposite , that if the law is imposed without the granting of the variance the applicant has a significant economic injury . It ' s entirely correct that what you ' re looking for is a way to determine whether the applicant is suffering that significant economic injury . What you take as proof is to a large extent up to you . Mr . Hooks is right you don ' t want to have to sit here as the judge of an applicants character . And have to decide in each case , can you believe this person , can you believe that person . You want to be able to base your decision on evidence that they have given you . Whether it is in writing or orally that makes it understandable , clear , logical , rational for you to come to that decision . The more evidence you have the more firm your decision , the more difficult it is to challenge your decision . The more of that evidence that is in writing the easier it would be to withstand the challenge . I don ' t disagree with any of the points that Mr . Hooks made along those lines . I would say though that you as a Board have to recognize this significant economic injury standard is lower than a hardship standard . It doesn ' t take as much to prove that . In the larger picture of things I am not sure that in advising you what to require of an applicant I would go quite as far as some of the suggestions that Mr . Hooks has made . To get for example appraisals of the property . In other words , in a case such as this I think it ' s self evident that if there was an income producing house , rental house , 14 Randy Marcus : on this site that has burned down it ' ( con ' t ) that the income that it was s self evident producing is no longer available . The applicant as a result , because they can ' t rebuild that residential structure because it is not permitted in the zone , the applicant is under some economic , I ' ll use the phrase hardship but not in the technical sense , to use the courts chosen phrase significant economic injury because he can ' t replace that residential rental income because the zoning law prevents him from doing that . In a situation like that where it is a very unusual situation it ' s not going to be very often that you have a case where there was a nonconforming use being made of the property .- S,enerati ng income which was all of a sudden taken away from the applicant , basically overnight with no involvement , no action by the applicant on account of a fire . That is the underlying basis for what is going on here . My disagreement with Mr . Hooks is not in the general points he is making but in the way in 'which they might be applied to these facts , to this particular case . I think it is very valuable that Mr . Schlecht has submitted these letters from The Dryden Bank and from The Trust Company that provide evidence of the points he was making orally during his September 6th presentation . I think those letters do go a long way in supporting the points that he made . I am not trying to make his case but I am trying to categorize the amount or the degree of evidence that might be necessary to support different points . Just to look at it a different way . If there had never been a farm house on this property generating rental income and all that were happening here was somebody coming in and saying I want to subdivide my property to get back to the point where I had the same return from that property that I had before this fire . I think it ' s a different case . If that were the case you would need some kind of evidence of what the economic injury is . What is going on with this property ? You are looking at a situation where somebody wants to do something that has not been the case before . It is different than the facts here where there was income being produced . J . Jay : The purpose of this rehearing is to clarify the . findings . is . • R . Marcus . That ' s right . J . Jay : And we do have a whole set of clarified findings , is that correct ? M . Varvayanis : That is correct . J . Jay : Do you want to enter that into the record ? M . Varvayanis : I still wondered if there were more comments to be made ? ( no one had any questions ) R . Marcus : You probably want to enter the two letters into the record . Mark Varvayanis submitted the two letters and draft findings as part of the record . PUBLIC HEARING FOR GEORGE SCHLECHT CLOSED ( 8 : 37pm ) DELIBERATIONS PETER AND ANN MARTIN VARIANCE J . Jay : 1 ) Whether an undesirable change will be produced in the character of the neighborhood or a detriment to nearby properties will be created by the granting of the area variance . There are two letters from adjoining neighborhood properties . One stated in favor and the other one state6 no objection . M . Varvayanis : Also the fact that there is a barn across the street that is even closer to the road that is coming down . R . Marcus : I should mention in regard to that , if that is important , and I would agree with you , it seems to be , you might want to make that a condition of your decision . M . Varvayanis : How exactly do we do that . They put this thing up • in four weeks and then the barn supposedly comes down sometime in the spring . And if it doesn ' t , do we go back and bulldoze their new garage ? 16 • R . Marcus : They would be in violation , . . . unfortunately it is a couple step process . The first thing is Henry would send them a notice of violation and give them a few days to cure it . If they don ' t cure it then you can get a court order . A long winded process but it can happen . J , Jay : In the variance we can say subject to , and then give them 12 months ? R . Marcus : Yeah , and you ' ve got to get used to the phrase conditioned upon . . J . Jay : conditioned upon . See now Mahlon would never let us do that , He said he would never want to do that , M . Varvayanis : I think he would. R . Marcus : Well it makes it a little more complicated but it ' s specifically r the rights that your board has . Ana av�, ,o „ ►, T6; J . Jay : And we would give them like twelve months . R . Marcus : Oh I would make it an even tighter time frame . They said they would have the garage done in December . Say by , give them nice weather , say May 31 until June 1st . Makes it easier , the more specific you are the easier it is to enforce . J . Jay : I would say in six months after the completion of the garage . We could have a blizzard starting tomorrow and that could delay things . A . LaMotte : That is a point . Rather than a definite date a specific period of time following the completion of the garage . J . Jay : The adjoining neighbors are not within clear vision of his house . To me that is an important factor . R . Marcus : There are no other residences immediately . I think you probably want to mention here also the results of the Town Engineer , having noted on traffic safety . • You also have this letter that he referred to that should be part of the record . 17 R . Marcus : We went into that some , and I think as far as your ( con ' t ) findings from that point go you ' d want to make reference to the letter . I think he was just repeating what he put in the letter . J . Jay : Are we covered on number one , whether there is a undesirable change ? M . Varvayanis : I think so . R . Marcus : The way I usually do this is I make a concluding finding . Probably in this case something to the effect that based on those findings , no undesirable change would be produced because there won ' t be any impact on adjoining property owners . That ' s basically the results . M . Varvayanis : How exactly should I word the fact that there are no houses nearby ? R . Marcus : Well he specifically said that the property adjacent to the west was a cemetery , and that the property to the east is undeveloped and owned by him . That • the next nearest neighbor , I don ' t know that he mentioned a specific distance , but apparently there are none . I think he said there are no other residences within view of the site . M . Varvayanis : Then again we are only taking his word for it . We don ' t have confirmation . R . Marcus : Again , that is a valid point . The more evidence you have the more difficult it would be to challenge the ultimate decision . There are some things it is easier to rely on the applicant for than others . You may want to in the habit of asking those kinds of questions or requiring some written proof . One way to do that would be if Henry requires a more large scale map that identifies the location of the neighboring property owners . It is always a good idea if you have an opportunity to inspect the site . If there are questions ? I know you get the packets a few days in advance of the meeting so if you have questions when we review the packets you could have Henry follow and provide the night of the hearing • some additional materials also or have Henry put the requests to the applicant to bring answers to some specific question . 18 J . Jay : ( 2 ) Whether the benefit sought by the applicant can be achieved by some other method , Again refer to number two and three of the applicants letter . R . Marcus : I think it is important to point out , as the applicant did here , that one clear option that the applicant had was to renovate the barn that serves the same purpose currently . The disadvantage of doing that with the findings . That it would be a disadvantage doing that because the barn is located much closer to the road right of way than the proposed site of the new garage . I think that was also pointed out not just by the applicant but by the letter that he incorporated into the record . A . LaMotte : Asked the Chair if he had put in -the finding concerning the barn ? J . Jay , The variance is substantia ' O • M . Varvayanis Is it ? R . Marcus : Again that is something that you could probably argue either way . J • Jay : . . cutting it in half although you ' re going back and taking down the barn , M . Varvayanis : It ' s behind some sizeable trees . R . Marcus : It is often the case and again I ' m giving you some general guidelines that might not mean a lot in this case but maybe in the future more important . If you look at substantial as being measured just in numbers - it is often going to be the case that your answer is yes it is substantial . More often the numbers 1 i ke i n thi s case you say approxi matel y hal f of the required set back . Half is a substantial amount , but if you look at substantial as being a measure of the fact you could come up with a different answer . As Mark points out the fact that there is sort of a natural buffer to its visibility , The fact that again , you are going to have the same findings for different headings . Your engineer has • found that there is no impact on traffic safety or on the ability for road work to be completed in the future . 19 • Randy Marcus : So your concluding finding might read something ( con ' t ) like : although the variance is substantial in terms of the number of feet that are being eliminated from the setback of the road , its not substantial in the visual sense and it has no effect from the traffic safety sense . You have to sort of look to the underlying reason for having said that requirement in the first place . You might even add in this item also that there are no improvements on adjoining properties that result in any uniformity . J . Jay : That is number one or number four . . . R . Marcus : Well you could put it in number one or you could even put it in this number three . What I ' m saying is if the idea to assess that is to create some uniformity where the improvements are as related to a road right - of - way and there are no improvements anywhere in the vicinity like this . It is kind of hard to say it ' s a substantial change . J . Jay : Stated that number one and number four of the criteria are so similar . • R . Marcus : Yes . I would have to agree in most cases . The only thing about four that sometimes can be different , a little tough in this case , is if the construction that would result from granting a variance is going to have some physical presence or it ' s physical nature is going to have some impact other than other kinds of impacts . In terms of traffic , in terms of safety , in terms of esthetics that physically is going to create some other issue or environmentally . And here you might mention that relative to environmental conditions this is not something that requires construction of either septic or hook up to a sewer because we are talking about a garage for storage purposes . Be explicit about the purpose . A . LaMotte discussed whether it was self created . Mr . LaMotte noted if the house was 200 feet back from the road the garage would only be 150 feet . This situation is created by where the house is located . 20 R . Marcus : It is one n a ai u g you could probably come up with some argument either way . I think the easier argument in this case is that it is self created , in the sense that it is chosen or they wouldn ' t be here for a variance Obviously the Law doesn ' t require you to fi nd that i t i s not sel f created i n thi s case the law goes on to say it will not necessarily purclude an area variance . The Law doesn ' t come out and say it but that can be true of other items as well . It is possible to come up with an uncertain result on one of the other items and still grant the variance . J . Jay : It does say that . . . . R . Marcus : It says you have to consider them all . I would suggest that you consider what is the next statement in the Law in granting of area variances , shall grant the minimum variance that it shall deem necessary and adequate and at the same time preserve and protect the character of the neighborhood and health , safety , and welfare of the community . In a case like this you might add a finding that you do not fi nd that there is any aspect f- 2th.e- �F �� f`� construction that would result , ;iortn granting the variance that has a negative impact on the health , safety , and welfare of the community . That there is no interest in the character of the community or the character of the neighborhood that is being protected by refusing to grant the variance . J . Jay : Henry , when he builds a garage , I know when you builds a house you can get a CO when it is done . Do you need that with a garage ? H . Slater : You get a certificate of occupancy , restricted to that of a storage structure . J . Jays So when he is done , he calls you up , you give it an inspection , you are . . . Henry : SLAT&a .t No . They apply for a construction permit , assuming they get the variance to build on that spot . They submit us a set of plans , we review that set of plans , from that set of plans certain inspection poi nts / times we give to the applicant along with the building permit . It can be concluded in only two ways . Some type of a certificate served by construction met with all the rules and regulations that apply to it or special circumstance or the Project becomes abandoned and the building permit expires . One of those two things has to happen . 21 J . Jay : Do you go out there and inspect for the completion though ? H . Slater : We go out there and we inspect first of all for the Zoning compliance or for the amount of variance relief that was granted . to verify that . . . We verify foundation boards . . . . Then the completion , then the certificate . When the building is substantially complete with the standards which apply to it , it is closed out with the certificate . J . Jay : The certificate of completion ? A . LaMotte : Is there an official date of completion ? H . Slaters Yes . The certi f i cate set a date as we i ssued i t . . . or a notice that it expired without the use being exercised . FINDINGS M . Varvayanis : • 1 . There is a barn across the street that is closer to the road than the proposed garage . 2 . No neighborhood opposition was expressed . Two letters were in favor of the proposal . 3 . The Town Engineer saw no problem with the traffic , safety, or road construction if the variance is granted . 4 . There are no residences in view of the proposed structure . 5 . Based on the above findings there will be no undesirable change in the character , or detriment to nearby properties . 6 . Refer to items 2 and 3 of the applicants letter . 7 . The current structure could be rehabilitated , but that barn is much closer to the road than the proposed garage . 8 . Based on findings six and seven there is no other feasible way to achieve the benefits sought . • 9 . There is a natural buffer between the road and the proposed garage . 22 10 . There will be no impact to traffic , safety , or road maintenance according to the Town Engineer . 11 . Based on findings 9 and 10 the requested variance is not substantial . 12 . Based on findings 1 through 4 there will be no adverse impact on the physical or environmental conditions of the neighborhood . 13 . There should be no negative impact on the health , safety , or welfare of the neighborhood . R . Marcus : You want to mention the fact that the building is not going to have any need for septic or sewer because of what we mentioned , the physical and environmental conditions not being effected . Nothing insaddition to the existing house according to their site plan . J . Jay : When these are typed up we . . . looked at it clearly as sections of the Law that we have to : . . we had in the notes but each one those . . . make it clear on this . R . Marcus : You might mention the fact that you did find that it was self created . You are required -to consider that but there is nothing wrong with finding that is the case . M . Varvayanis : I ' ve changed 13 . . . 13 . There will be no new well or septic system required . 14 . There should be no negative impact on the health , safety , or welfare of the neighborhood . 15 . The problem was self created . JOSEPH JAY MOVED TO ACCEPT THE FINDINGS . SECOND BY ALAN LAMOTTE VOTE : YES ( 3 ) M . VARVAYANIS , A . LAMOTTE , AND J . JAY . NO ( 0 ) ABSTAINED ( 0 ) 23 • ALAN LAMOTTE MOVED THAT THE REQUEST BE GRANTED CONDITIONAL UPON THE REMOVAL OF THE EXISTING BARN WITHIN SIX MONTHS AFTER THE DATE OF THE CERTIFICATE OF COMPLETION HAS BEEN ISSUED FOR THE GARAGE . SECOND BY JOSEPH JAY . VOTE : YES ( 3 ) M . VARVAYANIS , A . LAMOTTE , AND J . JAY . NO ( 0 ) ABSTAINED ( 0 ) DECISION : VARIANCE GRANTED DELIBERATION / FINDINGS FOR THE SCHLECHT HEARING M . Varvayanis : Do you wish to accept these 30 findings this evening ? A . Lamotte : Shouldn ' t we make some initial someplace to accommodate these letters ? • M . Varvayanis : They were included into the record . R . Marcus : I know that there were a couple of places where there is some reference . Item number 14 at the top of page 32 relates to that issue . J . Jay : Put see accompanying letters on file ? R . Marcus : That would be fine . . . . get specific about it . Say see August 30 , 1994 letter of First National Bank of Dryden and August 11th letter of Tompkins County Trust Company . You could add it to either item 14 or 15 really . You could add that reference after the first sentence of 15 . M . Varvayanis : We ' ll insert it at the end of number 14 and then it is already there for number 15 . R . Marcus : I wanted to make a suggestion if your inclined to make a motion to adopt these . Phrase the motion as a motion to adopt the draft findings delivered October 25 , 1994 in care of the Town of Dryden Zoning Officer Henry Slater and circulated to the • Town Board and the Zoning Board members prior to this evenings meeting as amended by the addition 'ro item 14 . 24 JOSEPH JAY MOVED TO ADOPT THE DRAFT FINDINGS DELIVERED OCTOBER 25 , 1994 IN CARE OF THE TOWN OF DRYDEN ZONING OFFICER HENRY SLATER AND CIRCULATED TO THE TOWN BOARD AND THE ZONING BOARD OF APPEALS MEMBERS PRIOR TO TONIGHT ' S MEETING AS AMENDED WITH THE ADDITION TO NUMBER 14 , THE CHAIR INSERTED AT THE END OF ITEM 140 SEE AUGUST 30 , 1994 LETTER OF FIRST NATIONAL BANK OF DRYDEN AND AUGUST 11 , 1994 LETTER OF TOMPKINS COUNTY TRUST COMPANY , SECOND BY ALAN LAMOTTE , VOTE : YES ( 3 ) M . VARVAYANIS , A . LAMOTTE , AND J . JAY . NO ( 0 ) ABSTAINED ( 0 ) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . ALAN LAMOTTE MOVED TO APPROVE THE DECISION MADE ON SEPTEMBER 6 , 1994 BASED ON THE FINDINGS . SECOND BY JOSEPH JAY , VOTE : YES ( 3 ) M . VARVAYANIS , A . LAMOTTE , AND J . JAY . NO ( 0 ) ABSTAINED ( 0 ) DECISION : VARIANCE GRANTED M . Varvayanis : We were just wondering what is happening with the fifth member ? Are we going to get somebody else appointed ? R . Roberts ? The Town Board hasn ' t taken any action . At our last meeting we only had three Town Board members present . M . Varvayanis : Can we make a request ? J . Jay : At four o ' clock today I was 165 miles away from here . I made it back. I planned on coming back and I did but I couldn ' t guarantee my car wouldn ' t conk out . If I wasn ' t here then we would have wasted all these peoples good time and money and everything like that because Mr . Hanely wasn ' t here . So when you are down to four members it makes it tough . 25 7 M . Varvayanis : I would like to make an official request . If there is no objection I will make an official request to the Board that a fifth member be appointed to the Zoning Board os Appeals . R . Roberts : I believe according to the Local Law that was adopted last year that there is a procedure for removal of a Board Member . Anne did not officially resigned . . . . . . . . I believe it is after three meeting are missed . Whether you have to wait, for three meetings , I guess two meeting have already occurred . M . Varvayanis : It occurs to me that maybe you can ' t officially dismiss her until three meetings have been met but since she is in New Zealand and plans to stay there that you could start reviewing other applicants . J . Jaya We could but you are not going to find anybody by December anyway . We don ' t have a long list of applicants . R . Marcus : What sometimes is done is to appoint on a temporary basis in leaves of absence . You can either do it in an informal manner which would probably stand up if anybody wanted; to challenge it but the technical correct manner would actually be to adopt a Local Law that provides the Town the ability to appoint temporary members to cover these absences . M . Varvayanis : I think we are allowed a alternate member . R . Marcus : Yes that may already be part of the Town ' s Law . I ' m still getting familiar with it . A . Lamotte : I showed you the draft copy Mark at the last meeting and I don ' t know what . . . . M . Varvayanis : It might not be a bad idea even if you want to put Ann back on to have an alternate member for such occurrences and to get somebody in training for when one of us . leaves . • R . Roberts : We are actually meeting tomorrow night so we can at least get something rolling . 26 f ♦ y DISCUSSION : The members discussed the possibility of having Attorney R . Marcus appointed as the ZBA representative . COUNCILMAN RONALD ROBERTS AT THE BOARDS REQUEST WILL INQUIRE AT TOMORROW ' S SPECIAL TOWN BOARD MEETING IF THERE ARE FUNDS AVAILABLE FOR A TRAINING SESSION WITH ATTORNEY RANDY MARCUS BEFORE THE FIRST ` < OF THE YEAR , MEETING ADJOURNED ( 9 : 30PM ) • 27