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Home My WebLink About2000-02-01 TOWN OF DRYDEN ZONING BOARD OF APPEALS ® 1 FEBRUARY 1 , 2000 0000 f AGENDA: (1 ) Leland and Gloria Knuppenburg - Area Variance (2) Dryden Lakeview Golf Course - Use Variance Q MEMBERS PRESENT: Chairperson Charies Hanley, Stuart Berg , Ann Everett, and Nick LaMotte ALSO PRESENT : Henry Slater, Leland Knuppenburg , Robert Martin, Cindy Martin , Joe Blumenfeld , Ralph Shortell , Joe Osmeloski, Clinton Cotterill, Sib Stewart, and Recording Secretary Laura Carpenter, LEGAL COUNSEL: Randall Marcus (1 ) KNUPPENBURG - AREA VARIANCE The hearing of Leland and Gloria Knuppenburg was called to order by Chairperson Charies Hanley. Chair Hanley read the attached letters , the first dated January 1 , 2000 to the Zoning Board of Appeals from Mr. Knuppenburg and the second dated January 18 , 2000 to Mr. Knuppenburg from the Tompkins County Department of Health . Chair Hanley asked Mr. Knuppenburg if he had anything to add . Mr. Knuppenburg declined . The Chair then opened the floor for any comments or questions from the Board . S . BERG: How much are we short square footage wise? ® ATTORNEY MARCUS : The lot is 21 ,690. A. EVERETT: Yes , and they need 30 , 000 . S . BERG : The other question I had was, I saw there was a document here that says "no change in footprint. " So from the outside everything is going to look the same. Is that what you're saying ? L. KNUPPENBURG : Exactly , S . BERG: You 're just taking the garage and renovating it into a one-bedroom apartment? A. EVERETT: Mr. Knuppenburg , which house is this? L. KNUPPENBURG : 175 Harford Road . C. COTTERILL: It's right across from Bridle Lane , the last house before you get to the wet lands. The last house on the East side . l A. EVERETT : It says here that there is almost four and a half acres. Is this the lot that we are talking about sight here? (Indicating a place on the mad, see attached map-) L. KNUPPENBURG : Yes that's it. I A. EVERETT: Do you own the Larger piece from which that was out from? L. K,NUPPENBURG : No. A. EVERETT* What It is on it? Is that just swarnpland? L. KNUPPENBURGF Just swamp land , yes . A. EVERETT : Any buildings? L. KNUPPENBURG : No . S . BERG : 1Nhere is the NYSEG right of way in relation to this map? (Ind1 ating the attached map , ) H. SLATER : (To Mr- Knuppenburg . ) Do you want to coma up and show them? Mr. Knuppenburg indicated the NYS EG right of way to the satisfaction of the board . There was a disoussion about the location of the swamp and how close it gets to Mr- Kn uppenbu rg Is property at different times of the year, S . BERG : Who owns the lot where the wet lands are' H. SLATER : Does the County awn that? L. KNUPPENBURG: (It was) given up for taxes , 1 checked into that- S . BERG : So when you sent the matter to the owners of the properties in the area around it , did you send It to the County'? H. LATER: I would hope so , I don 't know I don 't do that park of the project. Thera was some clarification about who own the surroundifig property by looking over the information given in the attached documents . S. BERG : This may not have direct barring , but why is it that the wet lands keep getting bigger there? Is there something wrong ? H . SLATER: Beaver infiltratiorr- L. KNUPPENBURG : We have no control over it . 2 S. BERG : I ' m not saying you do , but I was just curious- You say it has expanded aver the years and I was wandering why - H . SLATER : It's those busy Iittlebeavers , Chairperson Hanley then closed the hearing of Leland and Gloria Knuppenbur'g- He welcomed Mr- Kn uppen burg to stay or to call Mr. Slater in the moming to find out the results of the deliberations . He stated that the Boa rd would return to begin deliberations on the Kin uppenburg hearing after taking new testimony on the second hearing . (Piece see Item ) for testimony on 9ha second hearing.) The Chair asked for a quick sense from the Board . S . BERG : 1 don't have a problem with this one , for several reasons. Visually there is no difference whatsoever, Fin ancial [y it would be heIpfu [ to hlm as he indicated - The only other issue was perhaps the magnitude , 213000 out of 30 ,000 is, to me , significant , But I stilt think it is reasonable. A. EVERETT: 1 have no problem with ft . We are dealing with something that has been in existence for iquite a while . The building will not be enlarged in any way . I#'s just some internal work that is being done and it is in an area that is in the middle of a wetland so to speak. It 's not in a densely populated area and I can understand the applicants concern with the inability to sell it because that wetland does creep every year, it increases in size- So I have no problem with this. N . LAMOTT : I have no problems with it. CHAIR HANLEY: Okay , then Iets write some trndings . i+'*irfiFikA4A k�# *Y�wrFwxrriirwtrirr.rr,rfnttrttrt+ krrt*fwYr4#k#AMyriyrtrfyrrwirrrrt- r,r{r,rr# ,rlr+fiFrFAiNAAyri#kA#Rirw,rwwt* FINDINGS: ( 1 ) KNUPPENBURG In considering the application of Leland and Gloria K+iuppenburg of FO Box 717 , Dryden , N . Y . The Zoning Board of Appeals finds the following : A. IN CONSIDERING WHETHER AN UNDESIRABLE CHANGE WOULD BE PRODUCED IN THE CHARACTER OF THE NEIGHBORHOOD OR DETRMENT TO NEARBY PROPERTIES WILL BE CREATED BY THE GRANTING OF THE AREA VARIANCE , THE ZONING BOARD OF APPEALS FINDS AS FOLLOWS: 1 . Since there are no external changes the proposed change will have no 10 visual impact vn the neighborhood. Where will be no significant 3 change in vehicular traffic and no negative comments from neighbors weTe expressed in evidence . A MOTION WAS MADE BY S. EERG, SECOND BY A. EVERETT. B. IN CON I10ERINO WHETHER THE BENEFITS SOUGHT BY THE APPLICANT CAN S = ACHIEVED BY SOME OTHER METHOD, FEASIBLE FOR THE APPLICANT TO PURSUE , OTHER THAN AN AREA VALIANCE , THE ZONING BORAU OF APPEALS FINDS AS FOLLOWS : 1 . The mouse has been for sale unsuccessfully for ten years due to tho encroachment of the neighboring swamp and rental fees from the house alone do not cover expenses. The applicant's goal of a financially viable property has not been able to be met by any of the other options . Tho variance if granted will provide the financial resources to allow the applicant to maintain the property in an acceptable manner. A 1I 07ION INNS MADE BY A, EVERET'r, SECOND BY S, BERM C . IN CONSIDERING WHETHER THE REQUE TE D AREA VARIANCE IS SUBSTANTIAkL, THE ZONING BOARD OF APPEALS FINDS AS FOLLOWS: 1 . The relief is substantial , but due to the placement of the right of way and tl►o fact that the surrounding property is not developable granting the the would not produce any different result than if the property were enlarged into compliance. A MOTION WAS MADE BY A. EVERE7T. SECOND BY S. BERG. I], IN CONSIDERING WHETHER THE PROPOSED VARIANCE WILL HAVE AN ADVERSE EFFECT OR IMPACT OIL THE PHYSICAL OR ENVIRONMENTAL CONDITIONS IN THE NElGHBOR#H000 OR DISTRICT, THE ZONING SCARD OF APPEALS FINDS AS FOLLOWS : 9 . See finding A. A MOTION WAS MADE BYS. BFFRG, SECOND BY A. EVERETT E. IN CONSIDERING WHETHER THEr ALLEGED D I FF1 CUL7Y WAS SELF-CREATED , THE ZONING BOARD OF APPEALS FINDS AS FOLLOWS : t . Due to the placement of the right of way and the con#inued encroachment of the neighboring swamp the difficulty was not self-created . A MOTION WAS MADE BY N. "MOTTE, SECOND BY S. BERG. THIS VARIANCE IS AN EXEMPT ACTION UNDER SEAR SECTION 617.5 ( 13) 4 ANN EVERETt MOVED THAT MR. KNUPPENBERO BE GRANTED THE VARIANCE A REQUESTED. SECOND TO THE MOTION WAS MADE BY STUART BERG. VOTE : ALL IN FAVOR. ♦ DECISION ; VARIANCE GRANTED , 5 Leland &r GloriaKnuppenburg P 0 Box 717 Dryden, New Fork 13033 Town of Dryden 65 East Main Street Dryden , New York 13C, 53 January 1 , 2000 RE , Variance Dear Mernbers of Zoning Board: We wish to convert the garage at 175 Harford Road to a one bedroom apartment_ This world be a use change for that portioa) of the existing structure, Et IM11 also require an area variance be as a two famlly structure the area of the lot is sianaIler than presently required for that use . The lot frontage is sufficient ju_it the area is insufficient for the two F'ami ly use , The reasuns we need to be able to snake this change are as fol lows ' 1 . The house has been for sale for 10 years . We had it sold twice to people that were renting , "nth a portion of the rent being considered toward do%3vn payment , 'Each of these forfeited the accumulate depo;m of Tffn thousand dollars because of the continued encroachment of the swamp, 2 , ft is not possible to rent the house for enoubh to ouver mortgage, taxes, insurance and repairs as a single family house . 3 _ It is not passihie to convert the. garago to a family roorn and build a garage because NYSE&Q pipeline has increased in right-away �6dth mak1ng it impxrssible to add a Ctrarage. Even if this could be done it probably would not allow for enough of an Meresse in the rent to covered the above mentioned expenses , The changes intended wi I al low suif c1ent income to cover expenses zrrid maintain the properly in a manner consistent with the other homes in the area, At present it IS not possible to do this . We have considered all the options we. could think of to solve this problem in another way and none are feasible . We do not rveI that a variance invoIves a substantial area cif let coverag)e since we i Il not be bLiiiding a g�LrZige. Also since the lot is not in the middle of a densely populated development it will not be creating an over cro vdin situation as there i5 nothing hehind or to the south but wetlands . This change will not adversely effect the physical or environmental conditions of the neighborhood or district, in fact the ability_ to keep up the repairs should be an advantaue to the area . The difficulty in selling as a one family house is due to the wetlands and the increased pipeline right away , neither of which were created by us. When we bought it there %vas a pond in the rear and the rest was dry land over the years the swamp has encroached more and more . Sincerely, ]_eland C . Knuppenburg � HEALTH TOMPKINS COUNTY� �PA�t �.. ENT OF DIVISION OF L TAI, HEALTH 40T HaV�geS i ,fte�$ Yee fthaca, New oti�748Stph85 �`(607)� 27 4.66 87 January 11 , 2000 ivir. Lee Knuppenburg Box 717 Dryden, NY 13053 Re: 175 Harford Road, Town of Dryden Tax Map # 3 -48 . - 1 -6 . 11 Dear Mr. Knuppenburg: Based on the information you provided in our phone conversation of January 6 , 2000, regarding the above referenced property, no permit is required by the Health Department for the project as you described it. Our records indicate a sewage system designed at a rate of 600 gallons per day (GPD) , or a four bedroom house at 150 GPD per bedroom, was constructed and approved in 1966. You indicated that the house presently is considered to be a three bedroom dwelling. You are proposing to construct a one bedroom apartment in the garage, and this would be connected to the existing sewage system . Thus, a total of four bedrooms will still be connected to the existing sewage system . No permit to convert a sewage system is required for this project. You already have copies of the records from our files regarding this sewage system. Please call me at 274-6688 if you have any questions. Sincerely, 4 map q4cay Jennifer Hickey Public Health Sanitarian Pc : /ard Ewald, TCHD Slater, (T) Dryden CEO C,* Recycled paper STATE OF NEW YOLK : COUNTY OF T MPKINS TOWN N OF DF YDEN In the matter of the appeal of LELAND KINUPPENBURG the property located at 175 DRYDEN HARFORD ROAD CERTIFICATE (Town of Dryden Tax Map Parcel No . 48W7 1111111 � I, CHARLES HANLEY, Chairperson of the Tcvvn of Dryden ZONING BOARD OF APPEALS, do hereby certify pursuant to Rule 6 of the Rules of Procedure of such board , that the foregoing are the findings of fact and decision approved by such board on FEBRUARY 2. 2000, Dated : Dryden , New York Date ; 2000 CH LIDS HA LEY TOWN OF DRYDEN ZONING BOARD OF APPEALS ® FEBRUARY 1 , 2000 AGENDA: (1 ) Leland and Gloria Knuppenburg - Area Variance ( 2) Dryden Lakeview Golf Course - Use Variance MEMBERS PRESENT: Chairperson Charles Hanley , Stuart Berg , Ann Everett, and Nick LaMotte ALSO PRESENT: Henry Slater, Leland Knuppenburg , Robert Martin , Ms. Martin, Joe Blumenfeld , Ralph Shortell , Joe Osmeloski , Clinton Cotterill , Sib Stewart , and Recording Secretary Laura Carpenter. LEGAL COUNSEL: Randall Marcus (2) DRYDEN LAKEVIEW GOLF COURSE - USE VARIANCE Chairperson Hanley attempted to continue the hearing of the Dryden Lakeview Golf Course . However, there was some concem from the Board that it was not a continuation , but rather a re-opening of the hearing . N . LAMOTTE: Mr. Chairman, may I interrupt at this point? CHAIR HANLEY: Sure. N. LAMOTTE: It is my understanding that the hearing for Lakeview Golf was closed in November, and the decision was do, I believe around the first of January, so we are thirty days late on that and I guess I would have to ask Randy what the procedure Is that we get this thing back before us. ATTORNEY MARCUS . I didn't realize that we closed the hearing I thought that we adjoumed . N. LAMOTTE: The tape, I think is quite clear. Most of the tape is not Gear but there is a couple of references there to the closing of the hearing . H. SLATER : Do you have the tape (so that) we could play ft. N . LAMOTTE: Yes, I do Henry . H . SLATER : That would probably be best, right Randy? ATTORNEY MARCUS . I certainly trust what Nick is saying , I 'm sorry if that is the case because I thought that we just adjoumed it, but I think what we would need would be Mr. Martin 's consent to extend the time period for the Board to make I rl DRAFT it's derision - I assume Henry that the same notictrt has been made for totright's hearing , so t am not concerned with regards to the appropriate notice having been given , but it would be appropriate for Mr- Martin to agree to the Boards de ray in having completed its review of this. N. LAMOTTIE : The second issue I guess is that I would be very mach opposed in our attempting to draft Findings or reach airy decision here tonight considering the fact that we do not have minutes to refresh ourselves on what transpired back in November. We are now ninety days from that and I can 't imagine that any one of us is endowed wit# ufflcier}t men7ory to go ahead and draft findings- I think it would be more guessing than finding at this pcirrt, is there arty way we cars take the existing tape out'? (indicating the RecordingSecretary's tape,) Do you have another machine Henry ? H. SLATED: No , CHAIR HA NLEY: What do you want to do? N, LAMOTTE: I think I have this {Indicating the tape in his hand) cued up so that, CHAIR HANLEY: I don't think anyone will question you on that . A. EVERETT : That's not an issue S . BERG : As far as the actual con cems, i took personal nntes that , for me I feel are sufficient, If other indivWuats on the Board don feel that way that's fine, but I feel confident with the motes I have in front of me right now. I could list them for you if you'd Iike , N . LAMOTTE. I would be much happiertc Put thisthing off (Meaning the hearing) for an other thirty days or another two weeks or what heve you to see, . . The quality of the tape is not that great- I was very impressed by the minutes that our secretary provident us with of the January meeting. 2 DRAFT H. SLATER: This is a different machine too . This is a new martGine so . . . VVas the quality of the tees good a noP L. CARPENTER: They were excellent, yes- N. LAMOTTE: Someone here at the Town Hall said that the original i5 much better than listening to a copy- Anyway, that is my feeling on it . Plus we have a whale 15-24 pages of material that no ane has had a chance to review- fit, SLATER : Well, if the hearing is closed that's inadmissible now right's ATTORNEY MARCUS : Until we re- open It. The Board has the authority to open a hearing . HAIR HANLEY: i must admit, I think Nick has some good points, especially this packet which we just received and havwrr't had a chance to look at - I also think that his point about the minutes is weil taken - I am also concerned that we don't have a full Board for this one- I don 't like to see that although we can `k always guarantee that. I am also concerned that we haven 't really toad a chance to look at ttlis (neW rnaterlal) yet . A. EVERETT : t thought the purpose of this evenings meeting was to have Henry report to us - as far as the progress of getting all these reports together - which he seems to have done, lulus the main thing we have to decide is the point that Nick brought up about the self created use variance. I thought hoot would be the major part of our discussion this evening . CHAIR HANLEY: Well that certainly is the biggest thing that we have to tackle. A. EVERETT: I would be a lot more comfortable if we did not allempt to do findings this evening . Given the fact that we have this new packet of inform at% On, N. LAMOTTE: The minutes are going to be valuable in making a determination . I 'm not trying to be difficult, I think that we slWed up over the holiday period and we were not getting minutes back at that time and that's why I went down to the town clerks office and filled out a request to get a copy of the tape . Now we have this additional material tonight- 3 DRAFT CHAIR HANLEY: Does anyone else on the Board want to cornment? Sm BERGd I definitef a that we haven 't y fee 9 en t had time to look overthe rzraterial that we were given today, That is definitely an issue . MR HANLEY: Let's hear what you have to say Mr, Martin, R. MARTIN : The material that was given to YOU in the packet, that i gave to Henry was the exact material that I gave to the EPA, Alf f did was say "this is what we had to give to them _ " The last adjournment . I considered it an adjournment also - was to give your engineer time to see the property and get back with fn form ation , The DEC got together the applications for me and told me exactly what I needed _ I then went out and gathered all ihl5 information together, which is that packet_ They told me that they could handle everything except dust, The last piece of paper that I gave Henry to give to you proved that all this had taken plane and they were reviewing alI of this. Would you like me to show you a copy of the Course in color so you know what we are talking about? CHAIR HANLEY: First we have to decide whet it is that we want to do tonight. Again , none of this should be taken in a prejudicial manner it's just that this is a particufarly dWicult variance , Everyone wants to make sure it 's done right , The issue of the minutes from the original hearing is certainly something that the Board needs to look. at . The Board really does need time to go through the packet that you lave here _ Again , that is in an effort to make sure that we have clone everything by the numbers. I think at this lime 1 would like to hear more discussion by the Board on how it wants to proceed with this tonight . Obviously , If I understand Randy correctly, we simply can reopen the hearing, (?) ATTORNEY MARCUS : As long as Mr, Martin consents. I know he agreed that his view is that it had been adjourned but t would want 0n the record an affirmative 4 DRAFT statement from him that he consents to the Boards continuation beyond the 132-day peded , If he doesn't consent there wi11 be no decisian and the Boast wouldn't be ahia to further consider the application _ It would put him in a bit of a pickle . Once you have the applicant's consent you have the authority to re-open a hearing at your discretion either to take further testimony or review new materials or whatever you feel is 'rrnporNnt to your decision . CHAIR HANLEY: I get the sense that none of the Board memberis feel that tonight would be a good night to do findings_ So the question then is, do we want to take more testimony tonight and go home and read this and take testimony later and get a copy of tRe minutes before the next meeting" N. LAMOTTE : The submission of this is additional testimony, So we are either going to a c= of it or reject it until some later date, What is the first step Dandy? CHAIR HANLE Y: Wouldn't this be the same as a mailing that just happened to gat handed to us by Henry' ATTORNEY MARCUS: Yes, but you are suppose to be accepting irtforrr'iation and materials up to the point that you close the hearing so , if you are going to consider this, it should be corning to you at some point before the hearing is closed, I would suggest getting Mr. Mas#in's statern ant of consent to the Boards further consideration of this matter beyond the 6 -day time limit_ CHAIR HANLB : Would you state for the record, name and address and that you wouId like the Board to continue consideration beyond the 62 day time limit , R. MARTIN: My name is FWD Martin, I am the owner of the 430 Lake Road property where the golf course expansion is going to be , I live in Ithaca at 180 KendaII Ave , I wish to ask the Board to continue with this consideration so that it goes beyond the 62 days, and I would like you to con Ider going ahead with it, 5 A CT CHAIR HANLEY: 00 1 hear a motion? N. LAMOTTEw move that we continue the hearing for the Dryden Lakeview Dnlf Course. CHAIR HANLEY: Do I hear a second? S . BERG : Second , CHAIR HANLEY. Ali those in favor_ ALL Aye , CHAIN HANLEY: Opposed? *NONE OPPOSED* CHAIR HANLEY: Okay. So we will continue the hearing _ What is the Pleasure of the SoarV N. LAMOTTE; i wasn't clear an what Mr, Mahn was saying. (To Mr_ Martin), did you say that DEC will provide you with plans to mitigate these possible negative aspects cr do they simply review plans that you subrnit? R. MARTINS They review plans that we submit and, anything that goes nntu the wetland they have to ionic at . We want to have three ponds, with leach fields coming down and then the three pands are the drainage areas, which will be collection areas for any fertilizers or anything before it gets to the wetland _ This is a plan submitted by roe _ We have the erRire Cornell University Agricultural, Architect, and Landscape people helping us. They are the ones who wrote the boar for USDA, N . LAMOTTE: What would he the common procedure Randy? That he would draft or someone in his employment would draft plans submit there to DEC and to the Town Engineers My point is that I don 't think there is arty need of him submitting plans to us. We are not professionals capable of reviewing those. P" RAFT ATTORNEY MARC US: That would be what I expect to have happen , but the sequence doesn `t have to be that he has submitted his plans to DEC before he comes to the Board for a varfanoe, N. !J#MOTTE : No , I 'm talking about conditioning the variance . Maybe I am way ahead of the- , , S . BERG: We may went to wait until there is a response from the DEC to decide . ATTORNEY MAR U : Yau could do that, but I 'rn not sure if that's practical- In othsrword5 , you know that you have very wida ieeway to make conditions an the issues of variances , particularly use variances because of their unique mature . o if you were to conditicn a variance on an applicant getting a certain perrnit or approval From another governmental agency your variance is a nullity if they don't get that approval , I would think that it would typically be the case for most applicants that they would want to stop here first before completing the process with another governmental agency such os the QEC Because it would tend to be more costly and more time consuming to get ather permits than it would be to get the variance , and also because you (the Board) do have such leeway to condition your varances orr other permits whereas those other permitting agencies don nacessariiy have the autharity to make a condition in getting a variance, The DEG would have absolutely no concern with whether this satisfies zoning or whether he has a variance or not, You are the first step which is not only logical for the applicant it is logic:ai for you (the Board) because it gives you better control , You could tell him to go out and get that other permit first , but I don't see how that provides you with any particular advantage . N , LAMOTTE: So actually he would be putting the cart before the horse if he proceeds with those plans until he has the variance , 7 ` T DRA ATTORNEY MARCU : ThW is the advfoe I would give an app] lc `ant. Because getting the use variance is probably the biggest Question mark. The DEC permit may be difficult in some cases but it 's usually a matter of compromise , until there is some agreement as to how It is to be done . 8 o ultimately it's more often than not that (an individual) can gat the DEC permit_ It may take a little while , but getting the use variance is a big hurdle , A. E'VERETT : Mr_ Chair J suggest that that be our first order of business , to go through our use variance to see if he fits the criteria for a use variance because there was a question about whether this is self created _ N. LAMOTTE ; Can we proceed with that without the minutes of the November meeting? I think everything rests on a carripfete fiJe , . BERG: I took personai notes that i think are sufficient to me . I would Iike to add that we not come to a decision tonight or Grote an it but just that we bring 4Dup any other issues that we may have to address later on. A. EVERETT: Are you prepared to say that "yes , this does meet the criteria fore a use va dance I " that is the question , Are you familiar with that's You `ve not #peen here for a use vahancO I don't feel we necessarily need the minutes fo€ that Nick. N. LAMOT'TE& What are we going to base it on then ? What is going to be the foundation for making that statement? A. EVERETT : We are going to discuss it, N. LAMOTTE: What are we going to discuss if we don have the minutes" This reminds me of the oId definition of a cammittee6 A. EVERF.M. Well , let's open up the discussion and maybe something will come forth that may jog your memory" What was the response to your request for the minutes? Are they obtairiable'? is 8 N . LAMOTTtl: No , there were none - H. SLATED : They haven 't been produced yet . . BERG. Can we request that it get transcribed into minutes? CHAIR HANLEY: Certainiy. Let mo read what the state requires us to do an Use Variances: (Please gee attached copy of Use VaHance)- JOE BLUMENFELD+ I was here for all the meetings- They went over all this in the previous meetings. The Board agreed that he (Mr. Martin) qualified as far as those conditions go - Everything was brought up and everyone (ward m6rnbOrs) seemed to say that it was okay. . . CHAIR FIANLEY : We taste evidence and #hen make a deterrninatian of findings of fact from the evidence and than we propose that the variance be granted or not, In legal terms we may talk about and we may seem to be positive , but until the findings of facts are issued it doesn 't mean anything . ATTORNEY MARCUS : Yes, and you never got to that point . JOE BLUMENFELD : So you have all the information but you haven 't gotten to it? CHAIN 14ANLEY: We aren 't even sure if we have all the information yet_ We just got a packet tonight- JOE BLUMENFELD : But that has nothing to do with those vonditior7s. CHAIN HANLEY. It vary welt might have to do with the conditions. The one I think that the Board members are most thinking of is "Will not alter the essential character of the neighborhood . " Certainfy the questions of drainage- - - JOE BLUMENFELD: But that isn 't part of the conditions . CHAIR HANLEY: Yes, it is- Number three "that the requested use variance if granted will not after the essential character of the neighborhood . " JCE BLUMENFLED+ Yes, but that doesn 't say drainage , there is a golf course there and we 're making it a little bigger, we aren't altering , , . 9 i CHAIR HANLi Y: The drainage may very well alter the neighborhood. That is what we are trying to detem7ine. JGE BLIJMENFELD: is that the only thing you are trying to determine? CHAIR HANLEY: No , that is just one of many things . JOE BLUMENFEiLD Has anything been determiner# sine this meeting started? A. EVERETT : He (Mr, Martin) did provide valuable information far number one °under appiicable zoning regulations is deprived of all economical use or benefit from the property in question , which deprivation must be established by confident finandaI evidence_" Mr_ Mann did hand us informs# ion as to the financial status of the golf course and the fact that R would to difficu €t to use that property for 'residential devaiopment. & BERG. The specific issues that were raised that I still have questions on and would have to be answered were, in my personal notes , were storm water management plan , erosion control before and after canstructiart, dust control , provision for improved parking, excessive lighting , town engineering firm expertise to evaluate the plans and nutrient management pian to reduce nutrient entering the lake . These were the things that ware discussed at a previous meeting , I 'm just sayinig that these are the issues that were raised . CHAIR HANLIEY; Which all cornes back to the original question 'tirrould it alter the essential character of the neighWrhood ?' R. MARTIN : The reason we adjourned the meeting was to get Dave Putnam to go over these questions that you asked , He could have Taken Dare of everything with exception of the dust control _ He has no control over that, and neither does the env imrimentai people, M Dave Putnam told me personally after getting the wetlartds all squared away that we go l� 1 i DRAFT tiow to the enOunmental people to get these things squared away. He couldril do them . The par#cing and the lighting was Mahlon Perkjrns Problem , There is a row of trees between Mr- Perkins and the golf course . We have one light on each side- If he wants us to turn one Off, fine , We da need lighting around the golf course because of varidalisrn , Dust control , once you plant grass and put in over five hundred trees, erosion will be stopped- It's better than cropland where erosion just goes off. I hope I have answered your questions- I 'm trying to give the BoaTU all the information it want each time and ga according to what they told me to do , and they told me to go through the engineer first. Jae came to the ounclrrsicn that I go to the environmental people, and get these questions answered. The packet you have is what l gave to the envlronmental people . S. BER : The engineer is the one that estimated the price of a bMg+e and how expensive it would be to build a home in there? R. MARTINS, Yes that was the previous meeting . A. EVERETT: That was all information that we needed to answer one, two and three- But it is nurnber four that is the one we wiJI discuss in depth torright6 That says that the alleged hardship has not bean self created . That is the one that the Board is hung up on . So we have to work through that tonight. CHAJR HANLEY. We have to work through therm all . Nick go ahead . N . LA 410TTE: I 'm ccnicerned that we are attempting to condition granting the variance during the process of determining whether or not he gets it. What were the issues you had listed dowry there (ta - Ilerg) - S . BERG : Improved parking , excessive lighting, dust corgrol . . . It D . T L N , LAMOTT€ : Okay , any of these can be addressed by conditionifng the variance . To me they should net be discussed during the discussion of the four rrdteda. If we are concerned about dust cvntrot, we write a 00ndition after we have granted the variance . I think we are going to be hopelessly hogged down_ We will never arrive at a decision if we get bogged down I n those minute criteria . If we look at this on a broad scale it says that we have tha authority to tell fOr. Martin ° YZ and he either does it or the variance is not effective _ ATTORNEY MARCUS : You're not bound to make engineerng dec dons that's why yeu have an engineering consultant when you need him , I Know that what Mr_ Martin said is correct, the Board suggested that he give information to the town engineer and I thought Dave had relayed some response to the Town , 1 don 't find , in my packet, any letterfrorn Dave , but I had the impression that he had reviewed everything that Mr. Martin has provided and that he was satisfied that it addfessed the varxoUs issues , ^a . SERG : My con cem is that we make sure that we have dependencies on these other bodies sn that we can say, "if these other conditiar* are met it will be sufficient. " A. EVERMm Before we spend too much more time I would suggest that we zero in on number four, "that the alleged hardship has not been self created_ " The other three I think we can reasonably discuss_ It`s that fourth one that is going to cause a li#tCe bit of concern , and if that one is a no go, then it doesn 't matter about one, two and three, CHAIR HANLEYb, Ok, but this is the public tie a6ng section . So are you saying that you want more evidence from the applicant on number four? A. EYERETT: No _ 12 CHAIR HANL_E`F: You're saying you have enough and you want to close the public hearing and move on - N . LAMOTTE : We can 't close the hearing . HAIR HANLEY+ Close the evidence sectian and (nova on to the deliberation saotion , I have to speak more exac�i'y. N, LAi OTTE : I am concerned that we are going to have more paperwork coaling in from the applicant_ Can we discuss this without closing it? ATTORNEY MAR US : You can technically do either. You can deliberate while the hearing is A111 open . It isn `t usually done because you usually like to have ane step over with before you start deliberating , Or you can close the hearing and re-opan it if you wish to get more information , i don 't know whether the applicant has more information that he wants to give you or whether there is more information you are looking for. I ' rn not suggesting that you should be looking for sornething more. I just don 't know I there is same Issue that you feel you need mare information on . If there isn `i then there is probably no reason to keep the hearing open, I suggested that you had to re-open the hearing to take in the new materials you jusk received and get any more input from Mr. Markin , S . BERG : J would suggest then that we leave the hearing open to public comment white we deliberate and I would like any suggestion about focusing on number four because i do have some issues wit# that in particu)ar_ CHAIR HALAL. Y: Gert,ainly what ever the pJeasure of the Busrd is, However, i would wonder what we tell Mr, Knuppenburg. Is it a possibility to move on and make a decision , a finding in his application and come back to this without violating parliamentary procedures? ATTORNEY MARCUS . Yes, you may want to do what you have done before , Close the hearing for tha golf course and if you find it necessary to re- open it, your re-open 13 t10 iy rW it. If there is no more infomnation that you feet you need at this point and you have no further quesfrans for Mr, Martin at this point then in the usual course you would close the public hearing . Then go back and do the deliberations for Mr. Knuppenburig and get that over with and then go on to your deliberations for Mr_ Martin . CHAIR HANLEY: It's perrnisslble to ask anyone in the audience for comment during the deliberating section anyway, right? ATTORNEY iMiPARCUS # Yes , you are entitled to ask questions. They can 't ask you questions unless you let them , W SLATEW You might want to ask if there is any more public comment. CHAIR HANLEY: If anyone has a commerrt , please state your name and address for itie record . MS. MARTIN : I live right on the golf coarse _ The only time the golf course was dusty was , the one year when i# was so dry. Which might have been this last year. After all that and it wasn 't dry any more , the only place dust comes up is by the canal. across the street or sornednnes in the grave!_ Which we can pave the driveways and that takes away that problem . So the only place the dust comes up is if we have to dig something up, which we don 't, or the corral . RALPH SHORTELL: I lire at 494 Lake Road , which is the only house that is on the golf course sine of Lake Road , so we are directly effected. My pierce of property would be directly effected by it staying as a nine-hole nurse or going to an eighteen orthirtyLLsix or whatever. Since I have lived at Lake Road which is basically since 1992, that piece of property to my knowledge has exchanged hands on at least two different occasions and has come up to wetland ooneems, 0EC concerns, so on and so forth with regards to both of the prOvious purchasers and they have turned 14 down the opportunity to purchase it because of the cost factor involved. I don 't know what he owners who sold to Mr. Martin were doing with the property other than in the last couple of years they certainly have continued from an agricultural stand point with this. As a landowner to be directly effected by whatever takes place , I don't see that this is going to be truly negative to me even though my piece of property is currently up for sale. Since Mr. Martin has taken over ownership of the course 1 think anyone who drives by Lake Road can attest to the fact that it's probably been a bloom to the economy of the area and also to we as residence of Lake Road. On that basis alone anything that he would do with this thirty plus acres, I think his track record at this point has spoken t the fad that it would be positive for all of us, if we are golfers or not golfers, if we are residence out there. I have been unable to make the previous two hearings for other commitments of my own , so I am not aware of all that has gone on and the questions that have been raised one thing or another, and I am really truly confused about the dust issue . I 'm not saying this is a pro or a con but living out there is the dry season, when I mow my four and a half acres I create dust. The golf course has certainly created dust with the work that has gone on out there by revamping some of the holes and some of the other work that has gone on , certainly dust has been created but we also have experienced in the last two out of three summers, very dry conditions. I don 't even know if that is a fair question to be asking quite frankly. Maybe I am wrong there; maybe I donl have all the information from the previous two meetings so I could stand corrected on that. I think the bottom line is that basically that piece of property is going to be effected . I don 't see it in terms of my neighborliness with the owners in terms of trees that I have 15 punted things that need to be done to my pi ace of property to keep it peaceful to keep the golfers balls from straying into my yard, one thing or another, the relationship has been friendly enough and business; iike enough , these folks have always been arniable to and likewise from my standpoint, I personalty don 't have a problem with it and I would think that the wrrimondy would be in support of something fike this, SIB STEWART. I lived next to the go If course for we [I I lived there before it was ever built , iived there for forty some. years, until about seven years ago when Mahlon Perkins purchased the property from me . I can' t for the life of me see haw any lights would ever bother him from the golf course. Even if they doubled what they hart there. As far as dust, whtan you 're farming down there , working a field , there was a lot rnare must stirred up when we would plow out he land and work it. There was a lot more dList than there was ever from the golf course . firs the only golf course in the town of Dryden , and a lot of people go down there. If Bob can 't make it bigger so that he Gan make a go of it down there it would be a loss to the Town . As far as the land that he is buying, it never was ideal agricultural land and it certainly is not land that anybody would build on , especially if they have to build a bridge and everything _ As far as lights, that is kind of a joke as far as I am concerned. JOE t SMELOSKI : I play at Bob's course all the time. It's hard for me to imagine that expanding a golf course that already exists to another part and mak}ng another part of a golf course is going to cause a problem - As a golfer, looking for a golf course to play, we tend to want to play an 18-hale course_ But, Bob's course is a great whole course, he 's going to make it an 1 & hole course , it's going to be an even batter course, The land that he is going to use is not lust being converted to a gaff course , it's right ,t b next to another golf course ; it's hard for me as a golfer to imagine that it could cause a problem . K SLATER: There is one letter from the neighbor there that needs to be part of the record , who lives in Florida and couldn 't be here . As far as paper flow this has been the same as any other application . You just keep following it through. I don 't know of anything that has gone awry anywhere. CLINTON COTTERILL: lYe been to most of your hearings. I have lived in that area (of the golf course) all my life , and I understand this wetland . I have trapped muskrats and speared fish and done a lot of other things that we won 't talk about. I 've watched the golf course grow. I was here when there were twenty or thirty senior citizens in here, the first hearing you had . All I can say is I don 't think this thing is going to bother anybody and I think that you owe this man the chance to be successful. I think there is ample ways that you can come up with legalities that would allow him to expand and I think you would do the town of Dryden, the senior citizen , and this man an injustice if you don 't help him get through this crisis. I think there is an awful lot of senior citizens that are going to be terribly disappointed if it doesn't happen . Including me because I'm trying to learn . The farm that I use to own which the state of New York owns, probably puts more pollution in that lake forty-thousand times more than this man (Mr. Martin) and we aren 't going to chase them out of the town of Dryden and the town of Harford . In fact they aren 't even going to ask, So, when you talk about polluting the lake or contaminating that territory, it's not this man (Mr. Martin) . It bothers me when a private citizen , trying to do our community a nice job and these things are going on all around him . t7 t, r.'3 � i ,y y . • , CHAIR HAWLEY: I would just like to add, and hopefully people will understand, we also are trying to do the best for the 00MMunity and we have a law to deal with . If we d0 a sloppy job then in the end it will be this man who will have to Pay far it, So if we ask a lot of questions and request a lot of stuff, We are only trying to make sure that he (Mr, Martin) can do It dght without anyone giving him a hard time later on - VVe are just trying to bring out as much information as we can to make a determination here . The Chair went on to close the hearing section in order to begin deliberations for IUIr. Knuppenburg , (Please See Item (1) Aw addGF cwal drrsctrssron on Mr Knuppenburgs case.) Oft Y YIMMYIMyeyxJh /I�I YIR'1 /rJr Chair Hanley opened the floor for discussion on the Lakeview golf course variance - A. EVERETT: At our Nov ernber meeting Randy said that there was no black and white answer to this question , and I think that it is very true. This is a use variance request and there is a number of things. For exampfe: Tihe applicant bought the property , the 9-hole golf course had been in operation for a number of years. I truly feel that the rnan (Mr, Martin) bought the property with the intent of ranking it a financial success- He submitted financial documents that were not audited , they were his presentation . We scrutinized therm as best we could , but to me at didn't appear as though #here was very much money in+vofved with the operating of that golf course. I truly feel that the applicant is having a very difficult time running that course and he is probably in the process of going under, 1 don 't thlnkc there Is that much money. One of the things that he could do was expand, The other- thing that we have to caoftder in this applioaticn is the land itself- We are dealing with a parcel that can be used for residential and farming • Obwiausly with thirty some acres there ran be much done with the farming aspect- We did receive Is information that there is at least a 0"foot drop, I have waiked the land ; it does go dawn considerably , There is only a srnall parcel that can be used for residential devefopment, but in ordaf to get there , a bridge would have to be built that would be very expensive , -300 thnusand, With only stx acres of land you wouldn't be able to put that many #souses there_ So, when considering the land itself, I truly feel that the best use far that {dace of land would be the extension of the golf course, it is ideal and I truly feel that that is what the use of that particular land should be- In response to the question uwas R self-created ?' I do not feel it was self- created mainly because 1 do feel the app [icarrt dId buy the ariginaI property , the golf course, thinking he could make a go of 0 arrd he cculdnI, l don't think it was self-created. S. BERG : I would just add ane thing to the self-created issue , and l do agree with the applicant. The other golf courses , while he owned this course increased front nine to 18 holes all accept the city of Ithaca course , an was already at 18 holes , two others expanded from nine to eighteen , and competitive wise , although I donl play golf, I am aware that golfers do prefer to go to a course of 18 hale , so that has to be a factor in the financial success that would aliaw hire to be financially successful . So was it self-imposed , from the standpoint of the environment changing after he purchased this property, I would say no, it is not self-created , A. EVERETT: Certainly an 18 hale golf coarse waulc# be a definite benefit to the town of Dryden. H. SLATER: Actual [y it is three that expanded from 9 to 18 hales, ,Just to make your statement correct_ I N. LAMOTTE: I have argued consistently that the problem is self-created. What we O have been hearing, whether he could use the property for something else, but he did not buy it for those other uses. I think, in his own words, he bought it for the hopes of it being used for an 18-hole golf course . S. BERG : Where does it say that? N. LAMOTTE : I believe that was in his own words, again I don 't have the minutes, that is my understanding that what he has been telling us that it wasnl making it as a nine hole and so he bought this with the idea of expanding . S . BERG : Oh , bought the extra land , not bought the original purchase of the 9-hole course. N. LAMOTTE: That is what we are addressing, we are not looking at the problems associated with the operation of the existing golf course. That is not relevant at all . Hart Vs. The Board of Zoning Appeals, I 'll ask Randy to go through this, that involved a purchase of property for a funeral home, then the application for a variance . . . ( Could not understand what Nick was saying). . . " One who thus knowingly acquires land for a prohibited use cannot thereafter have a variance on the grounds of special hardship. " To me it's open and shut , S . BERG : What is the connection between purchasing the land and it being self- , created. In other words let's just say the self-created hardship is not that he purchased the land and now he may or may not be able to build an additional 9 holes, the self-created is that the existing 9 hole course completely independent of this separate purchase cannot make a go of it because three other courses have expanded to 18 holes and it is no longer competitive. That is not self-created . 20 1 1 -i. • ; gip . . . J -.. .�� oN . LAMOTTE: That is nothing to do with this parcel . We are looking at this parcel that he proposes. . . S . BERG: But the addition of this parcel will ameliorate the problem . ATTORNEY MARCUS : What Nick is saying is that the case law in this area is pretty cut and dry as he just read . If somebody buys a piece of property that has zoning restrictions, such as here where the zoning says you can use it as residential or agricultural , and then they come in and say "hey I want to use it for something else , like a golf course ,n then they have , by the reasoning used in most of these cases, they have themselves created the hardship because whether had actual knowledge of that zoning regulation or not, they bought that land with those restrictions and they want to do something different. S. BERG : Define hardship. Is the hardship that they purchased this land and they cannot do anything with it? Was the hardship that they had a 9-hole course that is not making a go of it because of the competition of surrounding courses? ATTORNEY MARCUS : I think the intention is that it is the hardship related to this property as Nick is suggesting . The hardship of being permitted to do what you want to do with the property . . . S . BERG : So if he hadn 't purchased that property, let's make that assumption for a second , he has never purchased this property, he comes to us saying he would like to purchase the property to build this additional 9 holes, the hardship is he is not making a go of it, it is not self-created because of these other courses. Would that be a different story? ATTORNEY MARCUS : I honestly don 't know of a case along those lines, but I think the way that the case is reasoned , yes, that sounds like it would be . . . 21 eS . BERG : So if he sold it for one day to someone else and bought it back, that would delaminate that issue? ATTORNEY MARCUS : I think you could probably say so. S. BERG: Is that really necessary? ATTORNEY MARCUS : I don 't know that it is. Let me throw out two possibilities which I think are sort of in the fringes of what these cases say. I 'm just throwing these out because I hear differences of opinion. I find on the one hand , the way Nick is looking at it can be supported by the case law. H. SLATER : That is a totally different case though. They didnl want to expand a funeral home they wanted to build a funeral home on a piece of property. . . ATTORNEY MARCUS : Right and that is exactly what I was about to get to . I think you have two ways that are viable to justify this. One is that you could look at it to say this is a preexisting non-conforming use, the existing golf course does ® not operate according to zoning . It's easiest to illustrate this I think by taking a different set of fads. Let's say he had already owned all the property, it was already one parcel when he bought the 9 hole course just that these thirty acres were undeveloped , and time goes by and this 9 hole course is sinking into a hole because all these other courses are expanding . He isnl making any money. Then he comes and says look, I happen to have this other 30 acres next door, I would like a variance to be permitted to expand my non-conforming use . I think it easier to justify that it is not self-created in that case because he was operating a 9-hole course and over time, it may have taken a down turn because of external factors . S . BERG : What is not self-created? Get to the essence of what the hardship is. What is the hardship that is self-created , define that . 22 9 I _ ATTORNEY MARCUS : What I am saying is that there are two different ways to define it O depending on the facts. you p g If y want to lust look at the 30 acres parcel he acquired , as Nick is , the hardship is he can 't use it for anything besides residential or agricultural . S . BERG : That's not the hardship, the hardship is that he is failing financially, that's the hardship . ATTORNEY MARCUS : In my hypothetical example, where it's all one parcel , and there is 9-hole course on part of it and there is nothing on the other part of it. . . H. SLATER : He could do it by special permit in that case, if he had two different areas. Actually the hardship for the land is that it can't do anything , maybe the land is the applicant. ATTORNEY MARCUS : That's the other thing I was going to say. The other way we can justify it is that, if you took at just the land what can it be used for? I think you do , as Ann was saying , have as much evidence as the zoning board is ever ® going to get that that land is not viable for residential development . S . BERG : Or farming . ATTORNEY MARCUS : I think you have pretty good evidence and I think from your understanding of the area and what it can be used for, you 're pretty comfortable that it can 't be viably used for farming either. So if you are looking at just the land, forget about the 9 hole to 18 hole golf course , and say "he owns this parcel of land, he wants to be able to use it for some economically purpose and it cant be used for anything that zoning permits and be economically viable (and you have evidence of that) he has an idea that is not permitted by zoning. " If you look at strictly this case law that Nick points out, it would suggest that it is self-created. But I think Henry's distinction is really critical . I think you can justify it in ® 23 Othose two ways that the land itself can't be viably used for the purposes permitted. S . BERG : If the hardship is purely defined on the additional land that he has recently purchased . . . ATTORNEY MARCUS : Which it should be. S. BERG : Then the implication is that the hardship is the purchase of land with the intent of using it for something that he is unable to use it for. Then it clearly is, even with the examples you gave , self-created and has to be rejected . I don 't see how not being able to use it for something else eliminates the fact that it wasn't self-created . What is the logic that does that? D. GRANTHAM : If he owned the land before there was zoning , then zoning was applied, then it might be a hardship that was not self-created because the zoning came after he bought the land . ATTORNEY MARCUS : That's the best example of it. D. GRANTHAM : But since the zoning was already in place and clearly said "only these two primary uses and the rest of it isn 't allowed , then presumably he should have known that he wouldn't be able to use it for those purposes. So then it is self-created . S . BERG : What if he sells it for one day and in that day, now he no longer owns it, and he would like to purchase it and build a golf course there, have you eliminated the self-created problem? N . LAMOTTE: No . I totally lost you on that, Stew. S . BERG: Let's say he never bought this property . He has a 9-hole golf course ; he wants to buy some neighboring property expand and to 18 holes. The P reason he is expanding is because he has a hardship right now with the existing property in that he can't make a go of it. Am I right? 4 1 ATTORNEY MARCUS : That wouldn 't come into play. If he sold the property to you , you would become the applicant and you would come in saying ° I have a chance to PP Y Y 9 sell this uneconomically. . . " S. BERG : So it always stays with that property is what you are saying , It is not related to the fact that he has a financial problem with the neighboring property. ATTORNEY MARCUS: If you want to get it into a more simplified example maybe , let's forget about the fad that he owns a golf course next door. He decides that the appropriate use for that property is to put in a gas station , and he comes in and says I bought this property and it can't be used for residential or agricultural , I want to put in a gas station . How do you decide if it is self- created? It looks a little more clear. He bought the property when zoning was in place, he wants to do something that zoning doesn 't allow, S , BERG : How is a use variance ever not self-created . Other than the one example you gave. CHAIR HANLEY: I think this may be one, Let me come at it from a different angle . Because I think this one is text book unique. Can 't you come at it from the notion that this golf course has been there a long time , as has the neighboring property and the availability of the neighboring property? Pre-existing because a 9-hole golf course is simply not economically viable. Demonstrated by the fad that all the other courses in Ithaca have gone to 18 holes. Therefore , the golf course which was pre-existing before zoning was set up for that area, was always meant to be an 18 hole golf course , and that because of the economic vagaries of the situation over the various owners, it was not self-created , Because in order to maintain that golf course , any owner of that golf course had to by the economics of the situation had to expand to 18 holes, Therefore it 25 f' was not self-created . It was created by a preexisting use of the land , O which always meant to expand to 18 . Zoning enters after the creation of the original 9 holes. This is a preexisting use and that therefore it is not self-created because the economics of situation are such that he has to expand to that other area in order to maintain the use of the parcel next door. It's not self-created . ATTORNEY MARCUS , I think that is the strongest logical argument that you have to get this into a category of not being self-created. It's just that as Nick points out, the law doesn 't really go there. I don 't know of a case where you have a situation that fits these facts. Just as you started off saying , this may be a completely unique case, and you would be , by basing your decision on that reasoning , you would be in effect making a new law. Now there is nothing from doing that. S . BERG : We aren 't suppose to make law we are supposed to interpret the law. Isn't that our job? ATTORNEY MARCUS : I may be stating this a little too dramatically. This interpretation , this way of justifying it is not based on any case law that I now of. You 're right you are not making law and you are not really interpreting law. All you are doing is gathering all the facts and deciding whether you should be able to grant an exception to the zoning based on those facts. I agree with Chuck, 1 think this is a really unique set of facts and I think the way he has explained it is a logical sensible way of explaining it. You aren 't going to find a case, as far as I know that says it that way. H. SLATER : Is there any case law that upholds the granting of a use variance. Would it be worth it to have Randy research some case law of use variances that have been both upheld and overturned. S. BERG : Can our decision be overturned? 26 y OATTORNEY MARCUS : Yes , if someone challenged it. k EVERETT . Who is going to challenged it? Let's be realistic here . I think we should I ust make a decision on this, the one person that I had concerns about was the neighbor across the street and he is comfortable with this. Who is not comfortable with it? The whole town wants this golf course. N . LAMOTTE : Isn 't it sort of restricted to anyone who is affected by it Randy? I mean i someone in Ellis Hollow couldn 't protest. ATTORNEY MARCUS : You 're right. Anyone that it has some impact on . H. SLATER: I would like to read some case law where a use variance was challenged and upheld because I am curious. If this case isn't a good application of a use variance I would like to see what is. Because I am baffled . ATTORNEY MARCUS : Since the state changed the law in 1992 , the state made it almost impossible. Deb's example is the only that is tried and true , sure fire example where you own property, it's undeveloped , you want to do something with it , zoning changes so you can't do what you had planned on so you have to go get a variance to do what you want. H. SLATER : This land now is doomed . Nothing can be done with it ever in reality except raise goats on it. CHAIR HANLEY: Because of that situation , it's inevitable that this piece of property is only economically viable as an extension to the preexisting course . ATTORNEY MARCUS : That is an important point, which makes this unique. H. SLATER: That land is fortunate that the golf course is there is what you are saying. ATTORNEY MARCUS : Because otherwise it couldn't be used for anything . S . BERG : It sounds to me like - correct me if I 'm wrong - in general is in favor of granting this variance if we can get past some of the issues of being able to write up each of the 4 requirements to be satisfactory and we meet all the environmental concerns, making it contingent upon DEC 27 approval etc. , that it sounds like this Board is in favor. So should be start work on actual ) writin u findin s? Y 9 P 9 CHAIR HANLEY : The problem is , if we "screw up" he (Mr. Martin) is going to pay the price . That is why I am trying to dot every eye . He could get half way into this and someone could challenge it and then he would have a lot of money into nothing . S . BERG : The only reason that I don 't think that will happen is that there is nobody who is against it that we have seen , and there has been an opportunity for people to come forward . CHAIR HANLEY: If I understand correctly if we can make a reasonable presentation - should it come to that - to a judge , that we made every effort , that this wasnY just some capricious thing and everyone said whey let's go play golf. " ATTORNEY MARCUS : A judge is very unlikely - if you have made every effort - to overtum your decision . CHAIR HANLEY: Even if we have gone into some new territory? ATTORNEY MARCUS : The judge might be happy to be able to use a unique set of facts to clarify . S . BERG : I wasn 't part of the history of this Board , but I know there were some problems before I joined was the use variance where we were sued or something? H . SLATER: That was an area variance . Split a conforming lot into 2 non-conforming lots. ATTORNEY MARCUS : It doesn't come up a lot. S. BERG : But that is not an issue here? That type of legal motion? CHAIR HANLEY: That was actually the Town Board against our decision . I don't think that is going to happen here. I think a judge who sees a Board who really ® 28 bent over backward to cover, is not going to overturn a local decision O unless he thinks it's arbitrary and capricious of the standard . ATTORNEY MARCUS : I think where you were heading a minute ago is important to keep in mind too . What could the property be used for? A court is not in a position where it is going to try and impose a decision , which prevents a property from being , developed period . Because as Henry said , what else could this property be used for. It's not viable for residential, it's not viable for agricultural use. You would have to have somebody come in here to get a use variance and if you apply the requirement that if somebody buys a property with the zoning in effect limiting it to residential and agricultural then you can never answer this question in a way such as to grant the use variance . You can never say the hardship was not self-created . Because anyone buying it is charged with the knowledge that it can only be used for residential and agricultural . If that is the case and anyone comes in asking to make it into anything other than these things, they are going to need a use variance. They are going to prove that you can 't use it for housing or farming and they want to use it for such and such . H. SLATER: If you can't use it for housing, how can you use it for commercial development? The same extraordinary cost are going to apply to the development . ATTORNEY MARCUS. That's part of your reasoning here is that it appears that there isn't anything this property could be used for, and produce a viable economic return . Accept maybe a golf course. If you were in litigation , it would be a valid point to make to the court. The judge is probably going to say 61 don 't want to be in a position of making it impossible to use this 29 kynj i j property. " That nuns contrary to the position of authority that the court wants to be in . H . SLATER : It's also denying use of land or something . N . LAMOTTE: Who forced the guy to buy it? A. EVERETT: The economic. . . CHAIR HANLEY: The circumstances . . . N. LAMOTTE: No , No , No , it didn 't . He bought it willingly and presumably with the knowledge that he could not use it for a golf course . CHAIR HANLEY, We are maintaining that he had to buy it for a preexisting use which was always intended and was economically determinant that it expand by the nature of the economics of the golf business, and he was forced to buy it, it was not self-created . The golf course was placed there before the zoning regulations curtailed the use of the neighboring property the economics of the golf business are such that a 9-hole golf course cannot survive. He was therefore forced - in order to maintain his present business to purchase that property and proceed with the plans , which have merely been delayed by previous owners. N. LAMOTTE : To me that is so full of holes that, everything in business then , up and down the main street down at the mall wherever, can say "hey I have to expand my business, zoning doesnl allow this. CHAIR HANLEY: Pyramid Mall, if it was failing couldn 't make a case that the purchase of the neighboring property would save it's business. ATTORNEY MARCUS. The distinction is not that they couldn't make the case, it's that in that case - it's a perfect example - the neighboring property does have other economically viable uses, for residential which is what it is zoned . I think here , the unique feature is the combination of what is possible for that other property. I do think that is unique. But you have to face Nicks point 30 _ p head on . Let's not talk Pyramid Mall, let's say there wasn 't a .9 hole golf O course preexisting non-conforming there , let's say was it a junkyard , and 1 Y the owner came in and said " I 've got all these statistics to show that a 50 acre junkyard is not viable , but an 80 acre junkyard is, and this other property next to me can 't be used for housing or farming , I want to expand my junkyard .° CHAIR HANLEY : Aha ! And that is where the other criterion come in . It would be such a drastic change in the nature of the neighborhood . That is what makes this property so unique in that it only answers all 4, 1 see your point, but that totally couldn 't happen with the other ones. ATTORNEY.MARCUS : Yes, I think it also goes to describe the unique conditions that he is stuck with . But I don't want to just toss Nick's point out the window. CHAIR HANLEY: I don't either. A. EVERETT: Randy, can we vote on this? How do we proceed ? CHAIR HANLEY: Let me ask Randy a question, I don 't want to get away from Nick's original objection . Again, since we are trying not to look arbitrary and capricious. Is the fact that we don 't have the minutes form the November meeting , and it's been over ninety days, is that a vulnerability? ATTORNEY MARCUS : I wouldn 't be uncomfortable if you wanted to proceed tonight in the position of having to defend your decision if it is challenged . I don't think a challenger is going to latch on to that and have . . . S . BERG : But we have the tapes, they could be transcribed? ATTORNEY MARCUS : Yes, but this is your level of comfort and I know Nick has expressed his level of comfort is not there because you don 't have that in black and white in front of you . Many times I have seen Boards say 'wve have to wait until we have those minutes, ' and many times I have seen the is 31 1 i t O Board say 01 remember what was discussed ," or " I have some notes , " or " I looked back on the other written materials that describe the earlier session , and It's fresh enough in my mind to go ahead . " I don't see your not having the November minutes as being a real weakness in your position unless you think it is. From defending you, I am not worried. S. BERG : My concern mostly on this one is not so much the 4 items - although the 4t" one is the most difficult one , I think we could word them strongly enough so that they are supportable - my concern is to make sure that the other contingent approvals -such as DEC -are met. Are we aware of what those dependencies need to be ? ATTORNEY MARCUS. I don 't think there is any comparable example . I think when you have problems like that; you make it a condition that your engineer signs off on it. I am sure your Planning Board does that regularly. If there is a more technical question that they can 't answer, They probably say, ® "We'll grant this permit provided that our engineer is made comfortable by the specification ." CHAIR HANLEY: Our engineer thought that everything would be satisfied by requiring the DEC permit. H. SLATER: Accept for dust control and lighting. CHAIR HANLEY: How does the Board feel about that? N. LAMOTE : This lighting thing, does anyone have any indication that the applicant intends to light the golf course? A. EVERETT: Not the golf course, just the parking . N. LAMOTTE: That is on the existing property, we have nothing to do with that. That is totally out of our hands. A. EVERETT : That was a concern expressed by. . . 32 ON . LAMOTTE : That was a concern expressed by a neighbor about the existing lights and we have nothing to say about the lights on the existing property. A. EVERETT : The applicant himself said that they are there for security. So to me that answered the question . CHAIR HANLEY. I 'm not saying it's right, but it could certainly be considered under number three that increased traffic under the 18 hole golf course and extra lighting might. . . N. LAMOTTE: The extra lighting on the parking lot . Again the uniqueness of this property, which is my original point, these properties are tied together in a death dance , and that any change to one property - if it should require extra lighting - might change the essential character of the i neighborhood . I don 't think it is a major issue . A. EVERETT: The applicant said that he does have a plan and I think that's what the neighbor was requesting , is there a plan and what is it? H. SLATER : Dust control during construction will definitely be an issue. Erosion during construction will be addressed in the DEC permit. I believe that it is a joint permit with the Army Core of Engineers. From what Dave said. I don 't' know that but I can look into it for you . N. LAMOTTE : This DEC permit, do you have one of those that you could xerox for us? H. SLATER: You do right now, you have it in your packet . The rest of that packet is what he submitted along with the application , additionally with it. There are two sets of drawings, which I couldn 't reproduce for you . From what he submitted which what you have there , they will develop a work permit and it will have conditions. CHAIR HANLEY: To Deb Grantham: Is the DEC permit strict enough that it would cover a lot of the stuff we have been worrying about? ® 33 . t D. GRANTHAM : I think that you should make a list of conditions that you are concerned about and have them in the variance SEAR. S . BERG : That is why I am concerned about making sure that DEC and what ever other agencies would cover all the issues. D. GRANTHAM : They may, but I think that you should make your own list. That way if DEC backs down on some of the requirements you still have them in tour SEAR. S. BERG : Do they do that? Do they say "We'll give a variance on this issue, "? D. GRANTHAM: My concern is that if you leave it to the DEC permit you wont necessarily have any control over what happens . If you put it in your own variance you will. i CHAIR HANLEY: So if we didn't leave it up to DEC what would that mean? ATTORNEY MARCUS : You could make a condition that say that your Town engineer has to approve everything on the list. That is what Dave does. D. GRANTHAM : We usually say on our special permits that they have to receive all the necessary permits from other agencies and here is out conditions. N. LAMOTTE : I asked this question before , but I am not sure that I am totally clear on it . Once we grant the variance and condition it with these carious requirements then we expect the applicant to turn to his own engineering sources for the plan . H. SLATER : Return to his own engineer to develop the plans that he has asked for. N . LAMOTTE: This is what I was trying to avoid , the scenario where the Town engineer was going to be doing the planning . H. SLATER: He will be reviewing what you require him to do . Which he secures from another engineer. Check and balances. CHAIR HANLEY: Okay , where are we folks? Now can we do finding piece mail, sign off on two findings tonight and two findings another night? 34 N. LAMOTTE: We don 't have the minutes. CHAIR HANLEY: I'm just asking . N. LAMOTTE: What virtue is there if any of going further than we have gone tonight? I have come to the conclusion that the votes are going to be there to find that this was not a self-created hardship. I think that was the big hurdle. Is there anything to be gained by continuing to muddle around here tonight as opposed to reviewing the minutes of the last meeting and going home? CHAIR HANLEY: What is the sense of the Board on that? A. EVERETT: I was hoping that we could do number 4 this evening . H . SLATER: Well in a sense you have . You have determined what your position is going to be on it. Putting it on paper would just be completing that task. N. LAMOTTE: That was the point I was making Henry. S . BERG : If I had the minutes from the November meeting I would read them and I would feel more comfortable with going ahead with the wording after, refreshing my memory with the minutes from the November meeting . So if we could get those in the mail before the next meeting and we had an opportunity to read them , personally I would like to do it the night or two before other than weeks before. A. EVERETTE : Would it be helpful to get a sense from the Board as to whether this is the way we want to go or not? CHAIR HANLEY: It would be helpful, not binding . Is then: any advantage to making any kind of resolution tonight? ATTORNEY MARCUS : I would have to agree with Nick. I don't see any advantage to doing something if you aren 't going to do everything . CHAIR HANLEY: I will close the hearing of Lakeview golf course. 35 a The minutes were reviewed for the January 4 , 2000 meeting . Chair Hanley asked for a motion to O approve the minutes as amended. A motion was made by Stuart Berg , second to the motion was made by Ann Everett. 36 a tLe vte STATE OF NEW YORK : COUNTY OF TOMPKINS TOWN OF DRYDEN In the matter of the appeal of ROBERT MARTIN - LAKEVIEW GOLF COURSE the property located at 430 LAKE ROAD CERTIFICATE (Town of Dryden Tax Map Parcel No . 41A1 32 . 22) I, CHARLES HANLEY, Chairperson of the Town of Dryden ZONING BOARD OF APPEALS , do hereby certify pursuant to Rule 6 of the Rules of Procedure of such Board , that the foregoing are the findings of fact and decision approved by such Board on : MARCH 7, 2000 . Dated : Dryden , New York Date : March , 2000 Charles Hanley 0 v USE VARIANCE APPLICANT : R. MARTIN - LAKEVIEW GOLF COURSE A. THE APPLICANT CANNOT REALIZE A REASONABLE RETURN PROVIDED THAT LACK OF RETURN IS SUBSTANTIAL AS DEMONSTRATED BY COMPETENT FINANCIAL EVIDENCE: Applicant's property is in the R-B Zoning District. The only permitted uses in the R-B district are residential, farming , or semi-public uses (See Zoning law Section 701 ). Applicant uses a portion of his property as a golf course that is non- conforming, preexisting use . .The applicant seeks to extend this nonconforming use to the balance of his property. The property contains a small gorge, which would have to be crossed to access the adjacent public road . The ZBA accepts as findings the information submitted, including a letter dated October 11 , 1999 from the IJ Construction Company and a memorandum dated October 21 , 1999 from Peter D. Novelli that indicated the land is unsuited for residential housing development The topography of the land requires that $250,000 to$600, 000 be invested to access the six acres of usable land. Considering the additional costs of roads and other infrastructure, and the fact that only six or fewer building lots could be created , development for residential use would not be financially viable. Farming is also an allowed use for this land but due to the small nsize and topography of the parcel, 26 acres, it is economically unfeasible. V • Motion to accept finding: A. Everett ♦ Second. S. Berg. ♦ Vote: Yes (5) S. Berg, A. Everett, N. LaMotte, O. Kelemen and C. Hanley No (0) B. THE ALLEGED HARDSHIP RELATING TO THE PROPERTY IN QUESTION IS UNIQUE AND DOES NOT APPLY TO A SUBSTANTIAL PROTION OF THE DISTRICT OR NEIGHBORHOOD. The parcel is landlocked by a small gorge and slopes 1540% to the lake, Information presented from engineers and builders indicates that only six of the 26acre parcel are suitable for housing development To access the six acres, culverts , abutments, and/or a bridge must be built at the costs of $250,000 to $600, 000. Other properties in this zoning district do not suffer from these unique features. ♦ Motion to accept finding: A. Everett ♦ Second: O. Kelemen, • Vote: Yes (5) S. Berg, A. Everett, N. LaMotte, O. Kelemen and C. Hanley No (0) Co THE REQUESTED USE VARIANCE IF GRANTED WILL NOT ALTER THE ESSENTIAL CHARACTER OF THE NEIGHBORHOOD: 1 I The public supports an expansion of the golf course to 18 holes, Responses were overwhelmingly positive . There were no negative comments. The existing 9-hole course is a preexisting non-confirming use. The course has been in operation for over 40 years. The applicant addressed issues such as lighting and parking. The row of trees between the course and the neighbor across the street will be maintained and over 500 new trees will be planted on the course. Adequate off-street parking (over 100 spaces) already exists. The minimal lighting (for security purposes) will not be increased. Expanding the golf course would not after the character of the neighborhood. ♦ Motion to accept finding: A. Everett • Second.• S. Berg. ♦ Vote: Yes (5) S. Berg, A. Everett, N. LaMotte, O. Kelernen and C. Hanley No (0) D. THE ALLEGED HARDSHIP HAS NOT BEEN SELF-CREATED: Prior to May 1988 the parcel in question was zoned RC where the operation of a golf course was a permitted use. In May of 1988 the parcel was re-zoned as a RB district eliminating the permitted use of the operation of a golf course. The ZBA finds that after operating the golf course for 3 years the applicant determined that the course must be expanded to an 18-hole course to compete financially with the numerous I & hole courses in the area. At least three other 9-hole courses in the area have expanded to 18 holes within the past several years in order to remain economically O viable. This produced an increased hardship for one of the few remaining 9=hole courses. Due to the extensive costs of development created by the unique topography of the parcel this parcel has no economically feasible use other than the expansion of the preexisting use of the adjourning parcel. The hardship in this case would be in denying the applicant any use of the property. • Motion to accept finding: A. Everett ♦ Second: S. Berg. ♦ Vote: Yes (4) S. Berg, A. Everett, O. Kelemen and C. Hanley No (1) N. LaMotte CONDITIONS OF THE VARIANCE : • The ZBA requires that the DEC permit -0nce issued - be submitted to the current code enforcement officer prior to the start of the project. The ZBA hereby incorporates as conditions to the variance each one of the DEC permit requirements at present and in the future. The Town engineer shall monitor compliance by the applicant and report any concerns to the current Code Enforcement officer at present or in the future. Failure of the applicant to comply with the terms of the DEC permit shall provide a basis for the ZBA to rescind the variance by a vote of the majority of the ZBA. 2 ♦ Motion to accept this condition: A. Everett ♦ Second: S. Berg ♦ Vote: Yes (5) S. Berg, A. Everett, N. LaMotte, O. Kelemen, and C. Hanley No (0) • Since the ZBA is concerned about potential run-0ff pollution from the golf course that can result in nutrient infiltration and an imbalance in the plant and animal life in and around the 1 lake, the applicant shall employ the best management practices on the entire golf course. The applicant shall provide for the Town a written management plan to keep pesticides and herbicides from entering the lake or wetlands and the applicant's compliance shall be reviewed and monitored by the Town Engineer before the golf course opens each season. Additionally the applicant must meet DEC Turf Management requirements. Failure of the applicant to comply with the terms of the DEC Turf Management requirements shall provide a basis for the ZBA to rescind the variance by a vote of the majority of the ZBA. ♦ Motion to accept this condition: S. Berg ♦ Second: A. Everett ♦ Vote: Yes (5) S. Berg, A. Everett, N. LaMotte, O. Kelemen, and C. Hanley No (0) • The applicant also is part of a Tompkins County Soil and Water Conservation District cooperative agreement that offers assistance in developing a conservation plan and conservation measures for the golf course. The ZBA requires that the applicant deliver to the Town and that the Town engineer review, and approve the conservation plan and any future changes . Also, the applicant must file a storm water management plan with the DEC. The ZBA requires that a 100 foot buffer strip be maintained as per DEC requirements at present and in the future. Exceptions to this requirement are part of the right rough on the 13a' hole and a small amount of the 13"' hole on the left rough as defined in the plan submitted . The applicant is bound to meet the terms and conditions set forth in the TG Miller March 7"' 2000 letter. ♦ Motion to accept this condition: A. Everett ♦ Second: S. Ben,7 ♦ Vote: Yes (5) S. Berg, A. Everett, N. LaMotte, O. Kelemen, and C. Hanley No (0) THIS USE VARIANCE IS AN EXEMPT / NON-EXEMPT ACTION UNDER SEAR SECTION ♦ Motion to approve the Use Variance based on the findings and with the conditions as approved by the ZBA: O. Kelemen ♦ Second: A. Everett ♦ Vote: Yes (4) S. Berg, A. Everiett, O. Kelemen, C. Hanley No (1) N. LaMotte ♦ Decision : Variance Granted