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2009-05-05
TOWN OF DRYDEN Zoning Board of Appeals 4 eo Members Present; ergs Kelemen , Chair, Thomas Qu1nit, Mark M ayhuq, Na tit n Hu Mai an Absent; Fxctised : Natan Ru Urn sn Others Pre Brit ; Randy M are uL3 - Town LBA A ftorney, Henry Stater - Zoning & Code .Enforcement, recording Secimetary - .10y ]poster, Joe Solomon ('Town Board l epresentanve) , Mary Ann Sumner - Dryden "Town Supervisor Al� rrllcfknts : Pots r, kl�largkret and Brenda 4erncr - 92 1lal lo� +vil le Itnac[, .Freevi ] !e, 1 ' Y Jonathan and Wendy Mate&inz - 3 Kirk load , I"reeville, NLY Tow n Ylesideats : Flint 131&ann - 471 Pcruville Road IMCeting called to order at 7 :30 PM. A ands : Juhn and Wendy RTatesanx regnes (ing interpretation and use variance consideration for '7 Kirk baud, glass- btuwusg acliVity. Werner wishes to replace a demolished group of Lgtortkge sheds with a single k�uil �ling eloper than the 70 feet front yard setback requirement. Chair 0crs Kelemen ; April 22 , 2009 PLW;A E TA KWI NOTICE that the Zoning Board ofAppeaIs of the Town of Dryden will conduct a public 14earing to consider the application r) f Brenda Cr Werner at 92 West Malloryville road , FreeviIle) NY, who wishes to replace a recently demolished group of storage sheds with a single Go(] square foot wood frame storage building with a front yard %0, Lback at varying franc 50 - 55 feet where 70 feet is required and is appealing Dryden Town Zoning Ordirr.ance Secticia 754 _ 1 to do so _ SAID IgFfA RING will be held on Tuesday May 5t' , 2009 at T30 PM prevailing time at the Dryden Town Hall , 93 East Makin St . Dryden NY , at which tinge all interested persons ;-4ri11 be given an' opportunity to be heard , Persons may appear in person or by went, Individuals with visual , }rearing or manual iinpairrnents and requiring assistance should contact the Town of Dryden at 607 -844= 8888 x 1. 6 at lest 4$ hox� rs prior to the time of the public hearing. 7BA- b., inutes - Werner Matcsaiiz, - I - ® Oers: to Werner do you have anything to add to that? Werner: The notice that you read does not reflect the application, application was for a front yard setback within or no less than 45 feet its not 50 - 55 feet. Oers : Asks the board if' they have any questions? Oers : What is the closest building currently to the road? Werner: I believe it is 50 - 55 feet. Quinn: These old building have already been demolished and the new building will sit right in the same footprint? Werner: It 's within except for approximately .120 .sq. feet; there is a small triangle that is closer to the center line. Quinn: Have we heard anything from the neighbors about thus? Henry: NO, but the highway superintendent has looked at it and asked me to tell the board that he has no problems with this. Oers : What are the board 's feelings on this? ZBA: feels it would be arc improvement to the area . Quinn: How old were the buildings? Werner: Built in the early I900 's. Attorney: to Oers, make sure there is no other public comment, Oers : Are there any other cornxnen.ts frorn the public? Oers : So we are closed for comments, will discuss this among ourselves, this is where we go over the 5 Area Variance questions we may ask you questions as we go over these. Oers: To Mrs. Werner, what negative factors are there if you were to in fact fbilow the zoning regulation? Why can 't you move it .back more frorn the road? Werner: The grade prohibits that and also there needs to be some kind of allowance to divide the building so it can be use and maintained properly. So there is a bit more space than there was between the bank and the old buildings, the old buildings were encroached so closely to the bank that it was actually caving in the foundation of the building, so the place its been designed was to allow more space from the band:. Oers : Will you have to remove trees to do this. Werner: 'There are no trees, it's a bank with ground cover no trees, steep grade. Oers : reads area variance questions - 2 - ® A. IN CONSIDERING WHETHER AN UNDESIRABLE CHANGE WOULD BE PRODUCED IN THE CHARACTER OF THE NEIGHBORHOOD OR DETRIMENT TO NEARBY PROPERTIES WILL BE CREATED BY GRANTING OF THE AREA VARIANCE THE ZONING BOARD OF APPEALS FINDS AS FOLLOWS: Attorney: I sr�ggest, the requirement here is finding fact so you need to have some factual staternents drawn from the infonnation the application has provided. One thing that applicant mentions is that the older structures were in disrepair and perhaps have become unsafe, use that as a relevant point that would be a fact. By contrasting a new structure would be rnore visually appealing. Quinn: The old structures represent a potential safety issue the new structure will serve as an improvement in the area. Motion made by : Tom Second : [Mark All in favor Be IN CONSIDERING WHETHER THE BENEFITS SOUGHT BY THE APPLICANT CAN BE ACHIEVED BY SOME OTHER METHOD , FEASIBLE FOR THE APPLICANT TO PURSUE, OTHER THAN AN AREA VARIANCE, THE ZONING BOARD OF APPEALS FINDS AS ® FOLLOWS: The alterative rneeting of zoning re(p.drernents would acquire additional expense and contribute to erosion, cutting into a grade, this seems to be the most logical and reasonably solution. Motion made by : Oers Second : Tom All in favor C. IN CONSIDERING WHETHER THE REQUESTED AREA VARIANCE IS SUBSTANTIAL. THE ZONING BOARD OF APPEALS FINDS AS FOLLOWS : Attorney: ,The variance being requested is a setback variance, so the setback requirements of i 0 feet, request is for 45 feet. So 1 don 't see how you can conclude that it 's not substantial, that 's like 40 %. It is substantial; however the location of the preexisting structure was about the same. Horwever you want to include that point. You are basing your decision on the fact that the old building were in approximately the same distance from the road, in other words the setback of the existing building was no less than what 's being requested. That 's what you want to identify as your consideration the fact. If what 's important to you is the fact that you had a group ajbudding that was near to as close and you are basing your decision on the fact that this is just a few feet closer, you need to have a finding that says the preexisting building were "X " number offeet already. ® Henry: Throw in the fact that the Highway Superintendent has looked at and has conclude that it poses no safety or maintenance issue being placed that close. And the house is closer than the proposed building, - 3 - Yes it is substantial! The requested variance is substantial, fi-oin 70 feet to 45 feet; however the overall effect will result in a positive change. This will be substantially the same as the previous buildings where the Town High iway Superintendent finds no problems with this proposal. The existing house already sits closer to the road. Motion made by : Torn Second : Marls All in favor D. IN CONSIDERING WHETHER THE PROPOSED VARIANCE WILL HAVE AN ADVERSE EFFECT OR IMPACT ON THE PHYSICAL OR ENVIRONMENTAL CONDITIONS IN THE NEIGHBORHOOD OR DISTRICT. THE ZONING BOARD OF APPEALS FINDS AS FOLLOWS: Mark: This structure is going to be further from the center tine than the house so tv lI not have an adverse effect on the neighborhood. Also make reference to question A . Attorney : you can also make reference to question A. Motion made by : Mark Maybury Second : Oers All in favor E. IN CONSIDERING WHETHER THE ALLEGED DIFFICULTY WAS SELF-CREATED . THE ZONING BOARD OF APPEALS FINDS AS FOLLOWS: YESI See questions A, B, C, & D above. Motion made by : Oers Second : dark All in favor Henry : 1'1+)o thing.y ,, this is SEQ1t exempt and ti17. 5C — 12 and I mis informed you that it was subject to 239 L & V Review, which it is riot, it would have been because it is in a AG. District but it it not within 500 feet of a recognized,farm operation so therefore it is exempt. Mark : motions that we approve this variance. Second : Tom All in favor Oers to Werner : Congratulations 8 : 00 PM Bambi Hollcnbeek, Town Clerk gives the swearing in to the ZBA members. - 4 - Oers reads next case : PLEASE`. TAKE NOTICE that the Zoning Board of Appeals of the '1'own of Dryden will conduct a Public Hearing to consider the application of John and Wendy Matesanz of 3 Kirk Road , Freeville , NY . Who are requesting Dryden 'Town Zoning Board of Appeals interpretation and use variance consideration as necessary for a 7 Kirk Road glass blowing activity and are pursuing Dryden Town Zoning Ordinance Section 751 . SAID HEARING will be held on Tuesday May 51h , 2009 at 7 : 45 f' M prevailing time at the Dryden Town Hall , 93 East Main St . Dryden NY , at which time all interested persons will be given an opportunity to be heard . Persons may appear in person or by agent. Individuals with visual, hearing or manual impairments and requiring assistance should contact the Town of Dryden at 607 -844 -8888 x 216 at least 48 hours prior to the time of the public hearing. Oers to Matesanz: Do you have anything to add to your information? Matesanz : Yes I have 2 things, I have the Certificates that I give to the students and 1 also have copies of all the checks that were paid to me for classes for the last few years. Oers: Is there arty type of Credits for this class? ® Matesanz: No Credits Oers : So what you trying to accomplish is to prove that you are and asset to the community as well as education. Matesanz: Where 1 definitely have a business I also have a huge percentage our income is based off of the teaching that I do. Attorney : Are you submitting financial statements that provide that breakdown.? Matesanz : 1 haven 't but I cart, you mean my t&x forms ? Attorney: Not tax forms, you said that a substantial part of the business is income generated by teaching, the board word have anyway of knowing how that breaks down. Not to say that will really be a turning point. Tom: Are these apprentices or students? Matesanz: 1 have 2 apprentices and then I have students. Tom: So the apprentices don 't pay for classes they just work for you. ® Matesanz: Right they don 't get paid for working for rne. But they started as my students. Oers : So if I understand correctly, they go through course work and they pay you for that time. Once they get their certificate you hire them as apprentice, but you don 't pay them? - 5 - ® Matesanz : The way the shop works right now is we have stations that people rent from us. And then there is the student area, but 1 only teach 1 or 2 at o. time. So people will rent stations and do there own work and then they will also do work for me or also watching and learning. Attorney : It was brought up earlier that the application process, that Henry requested a letter, approval from the land owner. See copv of letter to land owner below, TOWN OF 7� IZY.D:1� N r I-Cy C> LN, N1S V/ l'01ZK N •.• uRYI 93 P_.A5[' NAINI ul'IU:�. El"r, I} IZl'D 7J.LV. 1V 1=t� Yc_) ICtG '130$yi rJW ?N (G07) R•14 -trl<119 cxl : 27 �i firx: 844-44t1UR -tOW N • • 171 April 8, 2009 l:31tuliel r4 . ticnocal PCD r3ox 4906 Ithaca , NY t <t852 -49U6 Ko: ,lohn and Wendy Mi+ tassanz inning.; Varinnoo, 7 Ki +•k Rand , Town cif Dryden 6car Dnn : .As you may or may not bo nwnr•c, John need Wondy Mztlasnlnz oe .4 Kirlc 12r.nd. Proovillc, IVY hnvo appllcil to the Dryden '1'nwn Zonlna r-toard oFAppoals (/.. 1} A) For nn intorpnctati.>n and ifnecc8ea+ ry Una Vnrinnca conai.acrr)tion tin• a glnaa blowing activity they conduct at 7 IGirk Bond , '1-ha Town har. hcOn advlccd by the M.awe arez ' n they have ccttcr•od into a Iz• nd contract purcha nc ng+•comant whir you For ultimate ownership o /' b.:rth 3 alga 7 Kirk load . Upon diroetinn ti•ortt Iegnl counsel, as IagaI owner of 7 Kiask Road until such tin'rc the tared contract nErovmm'rt Its completed ; you reit+atl if agrecablo, provide your conSont for them t+ lipcal prior to the ZESA taking ally action . The ZBA. dncs not hnvo) attrlhorlty to connidc+• any action or rogtloct 1rurre any 1>erSs re other thtni them d.>cu montccl property owner. frees your Cor'rSidorntinn we hnvo lett;; Wdod a copy of the Malesnnz r•cclu ®St- ^ Jac-.I a simply t�+•+ n . Wu anlc, Wyou arc ; it agreement plonzo nll n and datc the onclnsccl form nncl rctum it in rho pre nddreserid , postnl c: paid envelope by nc> Inter than April 30"'. 2009. If wo do not vccoivo then li>r'1re by them time of the May 5rh, hanrinlL% the 113A_ will #lot be ire th© Iresition to Cr>rreidor tho Mutosanz request. Very truly your,. 1-ionry M . Slater•, 1? iroetoe of Ouildlua, Zoning and Plnnrtinl'; 'CovVn of r>rYOC11 HMS/j Ill t' ec : John and Wendy MatesarlZ C.7arn Kololnon , Chair. 17ry40cn Town Z13 ^ 12areclall Mnrtiut) , ESc>. 1,ogal Counsel for ZBA. Prnjcet Vila ZI3A-t)2-p9 Land owner permission below : - 6 - I TORN OF DRYDEN f DRYDEN, NEW YORK 93 EAST N IN STREET, DRUM, NEW YORK 11053 ti�N aF oqY (60 �a &118888 exl: 216 fax 814N Date; as documented o4imer of p rop e� Y (prin( acme) } r at ? I If �, 1 (11 Toum of Dryden, give my consent f or the Dryden To m Zoning Board of Appeals to consider the request submitted by John anfiendy Matesanz for said 7 Kirk Road property, taxable land parcel 441slev. 13 . 04001 Henry odds the land owner Darnel Senecal did c� "to that if you approve tires show proof of in.5ura nce Just for his o u) r� p rotectio n- Attorney: Thepropertrj chat ive are talking about is used as your rf: idence ? Matesanz: No we have a resfcler+.ce at 3 Kirk Road than there a. middle lot and an old barn itfith apcartrnerr.ts in the front c.nd to the back is the Gfass Shop, Attorney: So these are pe,imvls, separahzt tax parcels? Matesanz : Yes, lrut they are all currently ovinzd by Daniel &necul we have a land contract u)ith hurt that use have had since 1990- Attorney: So its One contract that covers all 3 parro �RS. Arid the only iraprouernents orr the parcel fs that YOU cr.re regUesting th,c variance on is flaw single stmetum that indudp these 2 apartrm rid s and the glass shop. Before the structure ryas Converted into a gl4eiss studio what roars it used fo r? Matesana: It tvas ca bearn with a dirt flcror- Attorney: So the apardments were brmught into later- Matesanz: No the apartments uaere there when we rrx,vved in, Attorney: But the mrn ainder of thy, building was u ur d jor storage. Matesartz : We have hid the foundation reinforced, Lve have fie-sided the oo.tside with ur.Vulf swing, use put a new roof on., and we have ck) no a lot of improvements to th4 building since we have beers there. Attorney: So how long has the business been. there ? Matesanz : Since 2002, began teaching in 2004r Attorney: Arid the apartments have been there s5ixxe? Matesanz : Wat sure when. they were pu.t in' Attorney: The rent that is paid out for the cipartment is paid to yov.P Matesanz: Yes, its part of the land contract. We orfgirbally just boayhl the horse, and their use added fhe barn to it. Oers: So you do own the interuenfng lot? ATatesanz: Yes that 's considered 5. Attomay : So amony the 3 parcels that are crow pc+.rt of the land contract, the orrc with the born is located is the ore cdosest to Rt. 13- - 8 - ® Matesanz: No the furthest Attorney: and what currently exists between your parcels and Rt. .13 Matesanz: You pass a driveway leading to a house that faces Rt. .13 than you pass my house than you pass my garden than there is the barn. But the other side of Kirk road is commercially zoned. And Ln basically surrounded by businesses. Which there is Modu-Heat and they were recently given a va.riance .for their business. I can see billboards from the shop. Attorney: Talks about letter that lean Kujasnowski, Environmental Planner, Town of Oryden wrote: See letter below : - 9 . ® Environmontal Planning 93 East Main Slroot Orydon, NY 13053 T 607 844-8688 Ask IF 607 044,8008 danklDdryden_ny.us wyrw. dry de n.ny._vs May 41 2009 To : Oers Kelemen , Chair ZBA Re : 7 Kirk Road Matesanz Glass Sculpturing Variance Request C : ZBA, Henry Slater, Randall Marcus , John and Wendy Matesanz, Daniel Senecal , Ed Marx . Oers : In spite of the late date , I thought I might give an opinion on this variance re- quest. I have discussed this case with Henry and Kevin and find it an Intrigu- ing case . I have also considered the 239 L&M review by Tompkins County Planning . As you know, Zoning always proves to be a constant dilemma . The core of zoning is separation of uses and even that has become problematic as peo- ple have become too separated from work and services and now we pay the price through the maintenance of a cumbersome transportation network . This case is interesting and I am hung up on two issues : the first is that the applicant does not own the site , and the second that the use occurs in a par- ticularly difficult part of town to zone . The first appears straightforward , but it isn't . If they owned the property, it would be easy for me to recommend a variance as a home occupation , not dissimilar to the property on the corner of Mineah Road and State Route 13 , only a " block" away from this property. I would also point toward All Mode Communications site at the same intersection , although not a home occupa- tion , a commercial enterprise in the area . So , in conclusion I cannot relate the project as a home occupation because they don 't own the property. The second points to the existing zoning versus the multiple versions of the proposed zoning of the site . I have to say first of all that the Planning Board , although working diligently, has not addressed the zoning map. This is be- cause I have not let them . It is very important for them to define the places before applying them to the map . That being said , the Planning Board did recommend new zoning districts in the 2005 Comprehensive Plan . In that 1 - to - adopted plan , this property fell in the Corridor Overlay, which is a strip along elther side of Route 13 in this area to a depth of 500 feet , Since 239 L&M Is reg4+ired due to the pro imlty of the property being with 500 feet of a state highway, I any comfortable assuming that it is within the then proposed over- lay and not within the proposed Suburban Residentlal as found in the 2005 Comprehensive Plonk , Thls can be found In Map 5m7 of the adopted 20G5 Comprehensive plan _ The uses suggested for that corridor are a mix of smaII-scale retail , service enterprises , office bulldings that could house corpo- rate administrative operations and research and development enterprises such as Computer software and equipment design businesses as well as resl- dential development- Of course. non of those are defined with In the Cornprew hensive Plan , and are for the most part are oither rather vague or speciflc. it is worth noting in an earller version of the plan this same slte was proposed as a Commercial District. Here is what I find for this site . It Is within a corridor hers the town and the county have a strong desire to havo development , but not that Is a traffic gen- erator, or if it is to control access to route 13 , 'rhis project nelther creates traffic , nor does it access Route 13 except via Kirk Road and Fs so a oon- trol led access , ThI's projact's site, although a two family building. is fitting wlth the landscape as it I. an old barn , and is filking with the country's corridor plan as it Is an agriculturally reminiscent structure , The business is run by the owners with only a handful of employees . and I do believe would qualify as an owner occupied business did they own the land it Was en _ The Comprehensive Plan , nor the proposed zoning , is clear as to the intent for this corridor beyond controlling access and the }physical realities of devel- opment_ The existinp zoning is clear, but is out of step with rnodarn Cray reali- ties of this part of town . With all of this, I would support the granting of a variance for thls slke , l would recommend conditioning the decision with a limit on the hours of operatlon, preferably during the stay, limiting all activity to indoors , camPliance with the Building Code and Fire Safety regulations , and a limit on the number of total employees to 10, or what regulations would dictate is a safe number_ The County points ko the "corridor study" that being the same I referred to _ However, I don 't remember that study being published , if so my apologies for not remembering it. But, although I and others from the town partieflpated in that study. it has not been adopted by the town rn any way. The plan that has been adopted by the town is the 2005 ComprehenaILve Plank , Also , as a point of clarification , Flenry's analysis is based upon a map prepared in support of the current effort of revising the zoning ordinance _ That map matches much of what is written , but the Planning Board has not reviewed nor endorsed that map as a body. I would stick with the Comprehensive Flan in your dellbera- Page z - II - tions of future zoning if you choose to do so . You are required to consider and be consistent with the 2005 Comprehensive Plan by state law and I think that the granting of a variance in this case with specific conditions is. The town now also has Design Guidelines , and I feel safe in saying that this project meets those . Good luck in your deliberations ) Sincerely, CD Dan Kwasnowski Pago 3 - 12 Attorney: One point that Dan rna.kes in his letter, is that he doesn 't say vent' firmly but that he understands the property in question to be within such a distance from Rt. 13 that it would be covered this property fell in the Corridor Overlay. Matesanz: In order for us to move our shop it would take a couple of months to setup, you have to put in a ventilation system. It would take us many months to find a commercial spot and get set up. That would be like 4 months down time, we would probably have to go bankrupt because 1 don 't have money to sustain me for 4 months and I have already taken deposits from people for the summer, so I would have to give that back, and possibly in that time find out that our place has been. re-zoned and we can move back because now its commercially zoned. Attorney: talks to Henry about where the town is urith the zoning arnerdrnents ? Henry pretty much thinks this is the way it wiII go, time frame ? My hopes are for the end of the year, but who knows. Attorney: This is another part of Dan's letter, if it tuhat proposed is adopted by the Town that amendment to the zoning ordinance would cover this use? Henry: Yes probably, the problem that we raise; is written now to go back and look the exact use has to be made, if you go back and look at 200S Comprehensive Plan, it has suggested uses. Only the Town Board can make that decision. Attorney: You mentioned that you have talked to your accountant, were arty of your accountants responses put in writing? Matesanz : No. I asked if I should get a Iawyer and was told probably not needed as you would probably look at it as rnostly educational. Attorney : By way of instruction to the Board or a reminder to the Board, it is very uncommon that you have been asked to view a use variance request, that doesn 't come up very often because most property owners are not able to satisfy the requirements for a use variance. Keep in mired that the dramatic diff. between regi-tirements for an area. variance like you just reviewed VS a use variance, the way state lain is set tip the criteria makes it almost impossible to get a use variance. The cards are stacked so high against the applicant for a use variance scenario that it is rarely requested and it is rarely granted. I think the reference that you made to Afodu- I-feat property is the best or the last time I can recall where a use variance was requested. If you recall in that case the focus was, whether or not the property could be used for a purpose that looks satisfying. So keep that in mind. In other words if there were some other use for that property that is permitted under current zoning then the way it state law works is that you don 't have any authority to grant a variance. And what the law goes on to say is the applicant has to provide proof and the phrase is Confident finical evidence , that the use the applicant is requesting the variance , is the only use that is viable for that property. A number of the points that you made along the way may offer support for that position. In other words you mentioned a. lot of expense that has been put into the property to convert it to these purposes, an investment to adapt this property to those purposes would not lend it to use for other purposes. I don 't know much about glass blowing but I image that there are features and some of which may have been. subject to an expense that are very specific, granted that you are in violation. of zoning but that is where you stand at this point. If we were going to follow the book of NYS law then the Board would have to base its position on what the law refers to as confident finical evidence, where the property as it sits cannot in an economical way be used. Just want to make wire those points were clearly brought out, before you go further with any questions. Oers: when you speak of alterative uses are you speaking of current circumstances or un foreseeable facture or anytime in the next 1000 years ? - 13 - Attorney*. Irrteax.n rtow, r,Mdercurrerzt adopted aorting, what I[t~rtry was tatTcing about is the prospect that zoning ors going to change; that there is no rued for this variance at all fhA�r Zoning is 90 ng to catch tip uAth inisuse. The Town hers been talking about it for moony years. It 's just hard to predict when that change tuill com.e. So I gf.4ess to tie into that legal overz,rew you have to also recognize what Henry stated or,at saving, that because the property is located so dose to a. State Hfghway that is wa.s subjert to a 239 Reuiew, by the County Pl arming department. The C'o_ Ptzznnlrrtg dept_ completed that rev few and pro uided you with a letter, which fecr.ts on the fact the point that I r rl as ,Iust describing. That under current NY law, the standa rds to get a r.tse variance are virtually impossible to meet_ There advice or recominend al.on is that you df: ny the variance and because the COunty Pinnning Deptr has re rnrnendcd. denial, the only way that you can grant it is by a Super f4 u ority uot.e, whisk, is 4 mem-bers and we don 't have 4 rnernbers here tonight, so here is no way it can be granted tonight, but what you may urart [ to do rs identify what irtformation you are going to require from the applicant in order for you to have any kind of basic to grant this vananc_v, If ,you. feel you mill not grant this variance you do have 3 members present which would be enongh for a denial, Oers: I havr; been thinking of one thing ttra.t sort qff roubles argr If the kI of us cif) pxOte PRO there ant next month awe are going to ask sorrreone, 1 Or 2 peoplr; to make ca decision horsed on injb . they have never heard which rrteans we would have to go thru the hearing infol again in orderfor them to understand and note blind, so Im wondering why we arm even doing this work today. Attorney: like I was $Gying ff you indirred to move in the direction of a uole in favor and knowing that you are going to need a 41h vote Ow- only thirig that you. might accomplish torn ht is to identify what info. you will require for the next meeting, Mark : gy question is that, are you saying that Daan didn 't want us to grant this Variance, is that what you said? Attorney: t efi Dan 's letter, which. [gust read while here tonight, ifs not entirely clear as you read the letter what he is reeorrr.rraending UWit you get towards the bottam of the second page and he says "even though everything t have said up to now makes it sound dike fm. advising against it, toe says I recommend that you grartt it, but his bases for Trim to re4ornmend that you grant it , is really beeause he foresees the zoning changing that it would be sort of in a general sense for the Board to go along with the uses that are being exercised there, that isn 't a. legal option for you, you cant base ac decrston on what ,you think the town is going to include the zoning to include. Like I have mentioned on other- cases before, your authority is quite limited by the statue and you don 't have the leeway to take into account how zoning rnight chartge in the future, its not one of the criteria pou can lease your decision on. For better or u,10rse the statue lirrtit.R you gays to consider just those couple of questions that have to be answered Lohen you are dealing with a use variance and again those relate to finical evidence that the property arm not be used in an economically way to something ot1wr them what the applicant is using the property for. . o it's a very difficult standard. to sati fij, the other thing that I need to poirr.t out is there 's nothing uvrong with reading Dan 's letter and considering sortre general sense what in o, he is giving you, but beyond the fact that that 's trot {part of what your allowed to consider when. you make ca decision, its also not part of the procedure for the zoning board to take advice from. the '1 �2wn Plarmer, and there 's nothing in your procedure ,scope that includes asking what sloes the Town Plan-ner think of this? o it 'sim5t another source of general info_ coating your way its not part of your decision, making process to take into account the Towns Planner advice or i ew of the fu . .re. barb: So ghat was the reason toe have to do a s:�per rncrjority vote? Attorney: Thal frorn the County Planning pepartment, not the Town Plarmer. &ee below the letter from Commissioner Marx, tr, DEFA'1 17VfEPT'T OFj MANNING �t f,12t East;�C`ourt; 5t��eotJ'� 11 , FAIwarcl C. F41ajx, A[CI' lltltiaca,<I�c�v.'tYvrk� 14E350 Comtni &4ioncrofPintining ' y 4"1 Tckoph ltti (607) $74-5560 'Rind1'uhlir Work k { Pax (607) 274-557$ April 15, 2009 Mr_ Ffenry SJatcr, 7_orlinglCode Fn Forctment Offlcer Town of Dryden 9-1 Cost Main S trr=t Orydcn , NY 13053 'Re : P.cview PurCsuant to §239 -1 anid -m of the Ncw York Statta Gmieral M!-MiOpal Law Action ; 7BA InterpretationJUse Variariuc, J4Matesanz Glass ScuipturingBusiness, 7 Kirk Road , Tax Paruel No- 44. - C -27. 13 Dear Mir 13lo-xter: This Inter acknowicdgcs your referral of the prnPosal Cdcntified above for review And comment by the Tompkins County Plarming Department pursuant to §239 - C and -n1 of the New York State General Municipal Law, Tic Oepartmcnt has reviewed the proposal, as submitted, and has detrrrnined that it has no negative intcr- community or carroty-wide impacts, The Dcpartroent offers the fall uwing comments regarding the proposed prbjcet, which avc not fanrraC remmmondatians under Generul Municipal Luw §239 -C and —m ; • The appJiaanthas ireque3icd a use vmiarivo from the Board ofLoningAppeaJs, piling a letter dared March 30, 2009 as justificatjon for the request. Accordigg b New York State Lain, no wic variance sh�tJi be gran ted "without a showing by tke applicant that applicable zoning regu1jitions and mt#trktions have caused unnecessary hardship_ In order to pruvu such unnecessary hardship the applicant shall dcinonstrate to the board of appeals that for each and every Parmittcd use trnc[rr the zoning rcgtilations for the particular district wlicre llie property is Jocatcd, ( 1 ) the applicant cannot realize a reasonable retum , provided that lack of return is substantial es dekr,onstratod by competent Financial evidence; (2) that the aJlegud hardship relating in the Property in question Is urliquc, and does not apply to a substantial portion of the district or neighborhood; (3 ) that the requested use variance, if gmntcA will not alter rhic essential character of the neighborhood; and (4) that the allegod bardship has not hron self- urcutcd ." Self=imposed hardbhips, such as operating a business without apprapriate permits, whether inbmtional or not, are not considered mtnecessary hardships, - 15 - • In the alternative, the Zoning Board of Appeals is being aslccd to interpret the existing use as an educational use. "I'lic applicant malces clear in the letter dated March 30, 20099 that this is a "small commercial glass business." While the applicant may hire apprentices, this so-called educational aspect of the property ' s use is clearly incidental and accessory to the primary business function . • Finally, the application material that was submitted includes an undated map entitled "Town of Dryden Proposed Zoning" with a note that it is a draft to be used for conceptual planning purposes only. The fact that the Town of Dryden may be considering changing the zoning in this area has no impact on this application. Not only has the potential zoning change not been adopted , the County has not had an opportunity to comment on it. It appears that the proposed zoning is not consistent with the Route 13 corridor management plan , which will certainly be a concern raised by the County when we have an opportunity to comment. Please inform us of your decision so that we can make it a part of the record . Sincerely, ll Edward C. Marx, AICP Commissioner of Planning 0 and Public Works - 16 - Attorney : Commissioner Marc makes reference to the State Law and he point out that under the State Law self-imposed hardships such as operation a business without appropriate permits, are not considered unnecessary hardships. That's the basic threshold that a Use Variance applicant has to get over to prove to you that they have an unnecessary hardship. So lie is saying that if sornebody decides to do something that violates the law that doesn 't constitute an unnecessary hardship. IIe goes on to say, talks about considering whether this is an educational use and he says, while the applicant may hire apprentices this so called educational aspect of the property use is clearly incidentally and accessory to the primary business function. That is what I was asking the applicant. Flow rnuch or what percentage of the business reventi.es is generated from the educational function verses another part. And applicant should provide that kind of info. in a letterfrom, the County saying that they have verified the applicant 's finical records and ran verify that in each of the past. .3-4 years that say 40% of their revenue is for educational purposes or 80% whatever it may be. That would have some bearing on this point that the Co. Planning Dept. makes. Me goes on to say, This is why you need the 4 vote vs. the 3 vote you have tonight to overcome his statement, "the fact that the Touln of Dryden may be considering changing the zoning in this area, has no impact on this application" it appears that the opposed zoning is not consistent with the Rt. 13 part of rrtanagetnent plan that tvilI certainly be a concern raised by the CO. when we have an opportunity to cornnient. So he is trying to make a. very broad point, he, is trying to say not only is this use in violation of current zoning but he 's not sure that it is going to comply with the zoning that the Town adopts and the Co. is going to have a say, when the Town goes to adopt that amendment to zoning. He is putting up a big red flag, so in order for you to grant a variance in that circumstance it is required by State Law that you have 4 out of 5 members vote because you are over-riding a recommendation to denial. Quinn: If we were to do this, to grant the Variance with the Super- Majority, and them the new zoning comes down, would our decision be vacated? Attorney : Keep in mind that when you grant a variance it attaches to the property it will live forever if zoning never changed, but if zoning changes to allow for the use, the variance just evaporates. Attorney: If the zoning changed to allow your use, there would be no need to operate under the variance because the use would be allowed. I guess the other possibility is if zoning changes aril it doesn 't allow you use, but if variance were to be granted before the zoning change then it will still be in effect. Attorney to Henry : In this district currently which allows residential use, does the zoning now allow for zoning educational use? Henry: Education can occur anywhere in the Town. Attorney: So if this were solely an educational use then we wouldn 't be here? Henry: Correct and you probably have some leeway in trying to determine what an educational use is, because we don 't define it anywhere in the definition section, we don 't give you any clue what education is. My guess is, that the creator of the ordinance is probably looking at it as traditional, means secondary schools things of that nature, but in the same sense we allow a nursery school to be anywhere and we refer to that as educational, so you may have some leeway there,, of course in. the 239 report in all fairness to that, it specially says that cant possible be because the applicant tells you that they retail/ wholesale products out. Oers: Would you have a guess as to what portion of your net income is from education of the total. . 17 - Matesanz: Well last year we probably brought in about $ 15, 000-20, 000 so about 50, Quinn : I don't think we are going to be able to call this an educational facility as long as their production is being marketed. Oers: Int wondering if it the educational were substantial portion if that amount could carry you that the eventually zoning decision or not, and it appears that it couldn 't, is that correct. Matesanz : I certainly turn away people; i could take in more students. I would have to really sit dozen and look at it., but I think I could. It's art option ►.cntiI the zoning is decided. Better than going Bankrupt of course. . . Quinn: looking at the first question the first finding, we have to come tip with the applicant can not realize a reasonable return, is that how we would look at that if we were to deny this, then she would have to rrtove this facility and that would cause her to possibly lose her business. Attorney : I think it 's fair to take that piece of iryb. into account. Quinn: Just so that it could be part of that finding, OK. SO that would be one thing we would have to see frorn. you is a. confident financial statem.ent indicating that if you were force to move from that location with your business that would ruin you. Attorney: Yes the way that an account or a financial adviser should phase that is that it has to relate to the use of the property, in other words as opposed to focusing art the business and its Opportunity to operate elsewhere it would have to focus on the fact that so much money has been invested in that piece of property and that the use of that property is not economical viable for ® another purpose without it being other than the purpose that you have been using it for and part of that is if an accountant could state that converting the use of that structure into strictly an educational purpose as opposed tot eh mixed use that it is currently being use for, would not be economical viable, if all you were doing was using it for educational purposed and generating what ever revenue that might generate if you expanded the educational use is not going to do the trick economical , that the rnrx has to be for that property the way you have it set up. The point has to be tied to the property and the structure and how its setup and what other opportunities there are for converting to other uses, as opposed to saying its going to cost X dollars to set up another structure somewhere else to do this business. If the experts opinion is about the possibility of going somewhere else that 's not going to provide the bases for to answer this question. Quinn: Where were are going with this is, this board generally likes to help the applicant along, when we can but you have to give us something substantial that we can , we have to make sure any decisions we make will stand up to, later on. If it gets reviewed it has to be a well thought out finding by the board. So whether we favor your application or not we still have to answer these questions. And the one that Iin having the most trouble is the alleged hardship in question 4, has not been self created and its hard for me to think of arty answer other than well if you had done your homework when you started than you wouldn 't be here tonight. Matesanz : And, for that I don 't have a good answer the property we have across the street and that 's commercial, so I had no ideal. I would never have spent all the money I did in the building by putting in radiant heat. ® Quinn: So that 's a hard question to answer. Matesanz : I really did think it was commercially zoned. - 18 - 0 Quinn : I hear you, but that may root fly] Attorney: Im not in the role to rttaking such recorrarrrertdatiorts to cipplzcants , sr�rr�ti es there is a. greater advantage to s [a.11ing th,e process , if the fecu.,s and the energy were put an getting the law arnenried so thW your use for coverage by the zoning law as opposed to trying to fit a square peg into a round hole, by the zoning bonrd, I thir7k ifflu wotdd be much better off, in other auords I think it nt ay he good that the Board doesn 't have enough. nienibens here tonight and this is going to have to be Put off tiff another might. If I were in the position of represer ling an applicant such as yourself I think i would be focusing ray atten6ort on getting the 'town Board fo pass the zoning amendment fhut is going to solve the problem;. . Quinn: Being that are card possib (y approve this tonight, for lack of rnem.bers and you have not shown us iff nanci al staternents you might ujaraf to ask to have this continued) while you get your ducks in ca. row anC1 �f continuance hcrpperrs to coin dde with the final zoning than, yeti first fet in die but in the meantime, we generally like to $Opport locr.d businesses that corifr'Qrte to th, �? communift .You are, bringing in people who stag in rJae hotels a-rid eat at local restat,r.rants, we support that, hul. we have to abide by the Rmils. Henry= you may want to consider kegping this leasing opera and not putting a time limit on tit_ Oars ; is that a! simple motion ? Quinn; I mode that u{e continue this and leave it open until such. tune as the upplicant can Present us with the info_ that we need or withdraws. That 's my motion_ Second ; Mark All in favor Meeting adjourned at $ :45PME - 19 - 0 Meeting adjourned 8 *05 - 20 - STATE OF NEW YORM COUNTY OF TOMPKINS TOWN OF DRYDEN In the matter of L'he appeal of CERTIFICATE Brenda Werner The property located at 92 W . Malloryville Road, Freeville (Town of Dryden Tax Map Parcel Na . 24 , - 1 - . 1 ) I , Oers Kelemen , Chairperson of the Town of Dryden ZONING BOARD OF APPEALS, do hereby cerlify pursuant to Rule 6 of the Rules of Procedure of such Board , that the foregoing are the findings of facia and decision approved by such Board ong Dated , Dryde.a, New York 009 Oers Kelemen NOTICE OF DECISION AREA VARIANCE APPLICANT: Brenda Werner May 51h, 2009 Chair Kelemen : April 22 , 2009 PLEASE TAKE; NOTICE that the Zoning Board of Appeals of the Town of Dryden will conduct a Public Hearing to consider the application of Brenda G . Werner at 92 West Ms1-lloi3rville Road , Freeville, NY parcel # 24 . - .1 - 2 . 1 , who wishes to replace a recently demolished group of storage sheds with a single 640 square foot wood frame storage building with a front yard setback at varying from 50- 55 feet where 70 feet is required and is appealing Dryden Town Zoning Ordinance Section 754 . 1 to do so . SAID I•IEARING will be held on Tuesday May 51h , 2009 at 7 : 30 PM prevailing tine at the Dryden Town Mall , 93 East: Main St . Dryden NY, at which time all interested persons will be given an opportunity to be heard . Persons may appear in person or by agent. ® Individuals with visual, hearing or manual impairments and requiring assistance should contact: the Town of Dryden at 607 - 844 -8888 x 216 at least 48 hours prior to the time of the public hearing. A. IN CONSIDERING WHETHER AN UNDESIRABLE CHANGE WOULD BE PRODUCED IN THE CHARACTER OF THE NEIGHBORHOOD OR DETRIMENT TO NEARBY PROPERTIES WILL BE CREATED BY GRANTING OF THE AREA VARIANCE THE ZONING BOARD OF APPEALS FINDS AS FOLLOWS: Attorney: I suggest, the requirement here is finding fact so you need to have some factual statements drawn from the information the application has provided. One thing that applicant mentions is that the older structures were in disrepair and perhaps have become unsafe, use that as a relevant point that would be a fact. 13y contrasting a new structure would be more visually appealing. Quinn : The old structures represent a potential safety issue the new structure will serve as an improvement in the area. Motion made by : Toni Second : Mark ® All in favor Notice Of Decision May 5", 2009 Brenda Werner - 92 W. Malloryville Rd . Freeville ® Be IN CONSIDER ING WHETHER THE BENEFITS SOUGHT BY THE APPLICANT CAN BE ACHIEVED BY SOME OTHER METHOD , FEASIBLE FOR THE APPLICANT TO PURSUE, OTHER THAN AN AREA VARIANCE, THE ZONING BOARD OF APPEALS FINDS AS FOLLOWS: , The alterative meeting of zoning requirements would acquire additional expense and contribute to erosion, cutting into a grade, this seems to be the most logical and reasonably solution.. Motion made by : Oers Second : Tom All in favor C. IN CONSIDERING WHETHER THE REQUESTED AREA VARIANCE IS SUBSTANTIAL. THE ZONING BOARD OF APPEALS FINDS AS FOLLOWS: Attorney: The variance being requested is a .setback variance, so the .setback requirements of 70 feet, request is for 45 feet. So I don 't see how you can conclude that it 's not substantial, that 's like 40%. It is substantial; however the location of the preexisting structure was about the same. Ho ► never you want to include that point. You are basing your decision on the fact that the old building were in approximately the same distance from the road, in other words the setback of the existing building was no less than what 's being requested That 's what you ►vant to identify as your consideration the fact. I fwhat 's important to you is the fact that you had a group of building that was near to as close and you are basing your decision on the ,fact that this is just a fe ►v feet closer, you need to have a finding that says the preexisting hirilding were "X" number offeet already. Henry: Throw in the fact that the Highway ,Superintendent has looked at and has conclude that it poses no safety or maintenance issue being placed that close. And the house is closer than the proposed building. Yes it is substantial! The requested variance is substantial, from 70 feet to 4S ,feet, however the overall effect will result in a positive change. This will be substantially the same as the previous buildings where the Town Highway S'uperintendent6nds no problems with this proposal. The existing house already sits closet, to the road. Motion made by : Tom Second : dark All in favor ® D. IN CONSIDERING WHETHER THE PROPOSED VARIANCE WILL HAVE AN ADVERSE EFFECT OR IMPACT ON THE PHYSICAL OR ENVIRONMENTAL Notice Of Decision May 51°, 2009 Brenda Werner - 92 W. Malloryville Rd. Freeville ® CONDITIONS IN THE NEIGHBORHOOD OR DISTRICT. THE ZONING BOARD OF APPEALS FINDS AS FOLLOWS : Mark: This structure is going to be further from the center line than the house so will not have an czdverse effect on the neighborhood. Also make reference to question A. Attorney : you can also make reference to cptestion A . Motion made by : Mark Second : Oers All in favor E. IN CONSIDERING WHETHER THE ALLEGED DIFFICULTY WAS SELF- CREATED . THE ZONING BOARD OF APPEALS FINDS AS FOLLOWS : YES! See questions A, 13, C, & 0 above. Motion made by : Oers Second : Marls All in favor Henry : TWO things , this is SE OR exempt and 617. 5C — 12 and I misinformecl you that it was subiect to 239 L & MReview, which it is not, it would have been because it is in a AG. District but it is not within SOIL feet gj*Ci reco,Knwd faun operation so therefore it is exempt. Mark : motions that we approve this variance. Second : Tom All in favor DECISION: VARIANCE GRANTED Notice Of Decision Nfay 5`�', 2009 Brenda Werner - 92 W. Nstaltoryville Rd . Freeville TOWN OF DRYDEN - DRYDEN, NEW YORK YN MDn , _bF 93 FAST MAIN STREET, DIM )EN , NEW YQIZK 13053 N (607) 844-8888 ext, 216 fax: 84I- 8008 TpV``N DRy�FtV May 14, 2009 Brenda Werner 92 W . lvialloryville Road Freeville, NY 13068 Re : Notice of Decision, Dryden "ToNvii Area Variance Request, 01 -2009 Z — Front Yard Setback — 92 W . Mal loryville Road Dear Ms Werner: Please Find enclosed the Notice of Decision, resulting from the variance hearing conducted by the Dryden Town Zoning Board of Appeals on Tuesday May ate', 2009. Please note, this is not a building permit, neither is it an authorization to fail to conform to the requirements of any other appropriate agency having jurisdiction over your project or use . The attached notice of decision is, Dryden 'Town Zoning authority to proceed with your proposal only . If the Zoning Board of Appeals attached any conditions to this approval , such conditions are part of the Zoning Variance and shall be conformed with. Failure to conform to any condition may cause the variance to be null and void . If you should have any questions or desire further detail , please feel free to call our office as necessary at 607444 - 8888 ext. 216 from 8 : 00am till 4 : 00pm Monday — Friday. Very truly yours, Henry M. Slater, Director of Building, Zoning and Planning Town of Dryden HNIS,jmf cc : ZBA-01 =2009 _ - TOWN Or DRYD:EN — DRYDEN, NEW YORK 7o N DRY nrfv 93 EAST M.M.Ni STREET, DRYDEN , NEW YORK 13053 � (607) 844-8888 ext: 216 fix: 844-8008 tONYN or DRY ) ly CERTIFICATE OF ZONING COMPLIANCE This is to certify that Brenda Werner applied for a Dryden Town Zoning Permit for a proposed construction project described on the application for Zoning Permit No . 1015 -2009 Z ) At 92 W. Malloryville Road, Freeville , NY 13068 (within the Town of Dryden) , Tax Parcel # 24 . 4 - 2 . 1 as proposed has been reviewed and the same complies with all the applicable sections of the `I own of Dryden Zoning Ordinance as they were in effect on the date of issue . It is issued to and on behalf of the owner of record as listed above and does not contain or imply any warranty to any third party . Purthermore , it is based on the application , which was reviewed for purpose of Dryden Town Zoning Ordinance Compliance only . The holder of this certificate is hereby advised , this certificate is not a permit for construction or for occupancy . This Certificate shall remain valid for a period of one year only expiring one year after the date of issue . The variance being requested is a setback variance , the setback requirements of 70 feet, request is for 45 feet . This certificate is issued for the authority to demolish a group of storage sheds and replace with a single 640 square foot wood frame storage building with a front yard setback varying from 45- feet where 70 feet is required. On May 5th, 2009 the Dryden Town Zoning Board of Appeals, (ZBA) met in session and granted this appeal. Enclosed is the Notice of Decision. A building permit is required. This is not an OCCUPANCY PERMIT. Occupancy is obtained by meeting or exceeding the requirements of the appropriate attached INSPECTION SCHEDULE . This is an approval of submitted plans , and authorization to proceed with the construction phase of the project . DATE of ISSUE r�&: ' 1% BY : Henry WSlater, Zoning Officer