HomeMy WebLinkAbout2013-03-06-BZA MINUTES
TOWN OF ULYSSES
ZONING BOARD OF APPEALS
03/06/13
Approved 3/20/13
PRESENT : Chairman George Tselekis, Board Members- Barbara Bristow, Dick Coogan,
Andy Glasner, Carl Mann, Environmental Planner Darby Kiley, Mariette Geldenhuys, Town
Attorney,
APPLICANTS : Pat Seamon, Agent for Richard and Gail Mott; Mahlon Perkins, Attorney for
Richard and Gail Mott
Mr. Tselekis called the meeting to order at 5 : 00 pm . He noted the members present. They are
here to review the application that had been denied and appealed under Article 78 .
Mr. Tselekis made the motion to adjourn to Executive Session for advice of counsel ; Mr. Coogan
seconded the motion, all in favor. The Board adjourned to Executive Session at 5 : 03pm.
Executive Session
Mr. Glasner made the motion to adjourn the Executive Session, Mr. Tselekis seconded the
motion. The vote was unanimous, session was adjourned at 7 : 23pm .
Mr. Tselekis reconvened the public portion of the meeting at 7 : 25pm . He stated that the Board
had adjourned for advice of counsel .
HISTORY
Richard Mott and Gail Mott ("the Applicants") submitted an application on July 9, 2012 for an
area variance for a proposed building ("the Proposed Building") on property located at 1601
Taughannock Boulevard, Town of Ulysses tax parcel # 14 . -3 - 14 . 3 ("the Property") .
Darby Kiley, the Environmental Planner for the Town of Ulysses, who is authorized to
administer and enforce the zoning regulations ("Kiley") determined that the proposed building is
an accessory building . The Applicants did not appeal this determination to the Zoning Board of
Appeals ("ZBA") .
Petitioners sought the following variances :
Setback : The setback of the Proposed Building from the lake is eight feet. The required
setback is 50 feet from the lake . Town of Ulysses Zoning Law ("Zoning Law") § 7 . 6 .
Height : The height of the Proposed Building is 23 . 6 feet from the ground level to the top
of the chimney and 21 feet at the average grade level . The maximum height for an
accessory building in the R- 1 residential zone is 20 feet. Zoning Law § 21 . 6 .
On July 18 , 2012, the ZBA held a public hearing on the requested area variances . The variance
requests were denied .
The Applicants filed an Article 78 proceeding in Tompkins County Supreme Court on
August 17, 2012 , seeking an order annulling and reversing the ZBA ' s denial of the area variance
and directing the ZBA to grant the variance . The ZBA opposed the petition .
The Decision, Order and Judgment of Hon . Phillip R. Rumsey entered in the Tompkins County
Supreme Court on January 30, 2013 , holds as follows :
That the issue of whether the proposed structure is a boathouse could not be raised in the Article
78 proceeding, because the applicant did not appeal from Kiley ' s determination that the proposed
building was not a boathouse .
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March 6, 2013
The court annulled the ZBA' s determination to deny the requested variances and remitted the
matter to the ZBA for a new determination on the petitioners ' application for area variances in
accordance with Town Law § 267-b(3 ) . The court found that the record does not show that the
ZBA weighed the benefit to the applicant against the detriment to the health, safety and welfare
of the neighborhood if the variances are granted by considering the five statutory factors . This
matter came before the ZBA at a meeting on March 6 , 2013 , for a new determination as directed
by the Court.
FINDINGS FOR HEIGHT VARIANCE
Mr. Mann made the motion, seconded by Mr. Glasner to introduce the findings for the height
variance as follows :
A. The ZBA finds that this matter has regularly and properly come on to be heard in
accordance with all applicable legal requirements . The Applicants, through their
counsel and representative who appeared on their behalf at the initial hearing on
July 18 , 2012 , were notified of the ZBA ' s meeting and notice of the meeting was
published and posted as required by law.
B . This matter is an application for setback and height variances, on remand from the
Supreme Court, Tompkins County . For this reason, the ZBA limited its review to
the information and materials that were available to the ZBA as of the time of its
initial determination on July 18 , 2012 . The ZBA further did not make a
determination on the question of whether the Proposed Building is a boathouse,
because the Court held that Kiley ' s determination that it is not a boathouse was
not appealed to the ZBA and was not properly before the Court. The ZBA is
considering the Proposed Building as an accessory structure under the Town of
Ulysses Zoning Law, as determined by Kiley . The ZBA announced this
procedure for its review at its April 2010 meeting . The Applicant and property
owners entitled to notice of the proceeding were notified of this procedure .
C . Consideration of the statutory factors set forth in Town Law § 267-b(3 ) for the
height variance
The ZBA reviewed the record and weighed the benefit to the Applicants against
the detriment to the health, safety and welfare of the neighborhood if the height
variances are granted by considering the following five statutory factors . Benefits
sought by applicants are to store kayaks , canoes, and other lake-use items, act as a
warm-up shelter, and have a porch for shelter in inclement weather :
1 . Whether an undesirable change will be produced in the character of the
neighborhood or a detriment to nearby properties will be created by the
granting of the area variance .
No undesirable change would be produced .
2 . Whether the benefit sought by the applicant can be achieved by some
method, feasible for the applicant to pursue, other than an area variance .
Because the proposed building and chimney height are not
required to meet benefits listed above, the benefit sought by the
applicant can be achieved by a building that does not exceed 20
feet in height.
3 . Whether the requested area variance is substantial .
The height variance is not substantial .
4 . Whether the proposed variance will have an adverse effect or impact on
the physical or environmental conditions in the neighborhood or district.
No .
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5 . Whether the alleged difficulty was self-created .
Yes, the difficulty is self-created. The applicants were aware of
topography and were or should have been aware of zoning
restrictions .
6 . Considering all of the statutory factors set forth above, the ZBA concludes
as follows : The benefit to the applicant can be achieved without a height
variance .
Mr. Coogan made the motion to accept the findings, Mr. Mann seconded the motion.
The vote was unanimous, motion approved.
Ms . Geldenhuys offered a friendly amendment to strike the sentence "and to the question
of whether her determination was correct in light of the information available to her" on
page 2 of the draft.
Mr. Glasner made the motion to accept the friendly amendment, Ms . Bristow seconded
the motion. The vote was unanimous, motion approved .
CONCLUSION FOR HEIGHT VARIANCE
Mr. Mann made the motion as follows :
For the reasons set forth above, and upon the evidence, law and facts, it is the opinion of
the ZBA that the application for height variance must be, and hereby is, denied.
Mr. Coogan seconded the motion. The vote was unanimous and the height variance
denied.
FINDINGS FOR SETBACK VARIANCE
Mr. Tselekis made the motion, seconded by Mr. Mann to introduce the findings for the setback
variance as follows :
D . Consideration of the statutory factors set forth in Town Law §267-b(3 ) for the setback
variance
The ZBA reviewed the record and weighed the benefit to the Applicants against
the detriment to the health, safety and welfare of the neighborhood if the setback
variance is granted by considering the following five statutory factors . Benefits
sought by applicants are to store kayaks, canoes, and other lake-use items, act as a
warm-up shelter, and have a porch for shelter in inclement weather :
1 . Whether an undesirable change will be produced in the character of the
neighborhood or a detriment to nearby properties will be created by the
granting of the area variance .
There is no evidence in the record that it will produce an
undesirable change .
2 . Whether the benefit sought by the applicant can be achieved by some
method, feasible for the applicant to pursue, other than an area variance.
Yes, this is substantial, but given the natural 80 ' cliff, limiting the
location of the building, the applicant cannot meet setback
requirements without a variance .
3 . Whether the requested area variance is substantial .
Yes, it is substantial .
4 . Whether the proposed variance will have an adverse effect or impact on
the physical or environmental conditions in the neighborhood or district.
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March 6, 2013
We have no evidence in the record to show that there will an
adverse effect or impact on the physical or environmental
conditions .
5 . Whether the alleged difficulty was self-created .
The difficulty is self-created, but due to location of 80 ' cliff within
the setback area, the benefits to the applicant outweigh the
detriment to the community.
6 . Considering all of the statutory factors set forth above, the ZBA concludes
as follows, even though the setback variance is substantial and difficulty to
the applicants is self-created, the benefits to the applicant referred to above
if the setback variance is granted are not outweighed by the detriment to
the health, safety and welfare of the neighborhood .
Mr. Tselekis made the motion to approve the findings with an amendment to
remove the sentence "because it is common for accessory buildings to be inside
the 50 ' setback to the lake" on page 4 of the draft. Mr. Glasner seconded the
motion to accept the findings with the friendly amendment. The vote was
unanimous, motion approved .
CONCLUSIONS-SETBACK VARIANCE
Mr . Mann made the motion, Mr. Coogan seconded the motion as follows :
For the reasons set forth above, and upon the evidence, law and facts , it is the opinion of
the ZBA that the application for setback variance must be, and hereby is , granted.
The vote was taken as follows :
Ms . Bristow AYE
Mr. Coogan NAY
Mr. Glasner AYE
Mr. Mann AYE
Mr. Tselekis AYE
The motion is approved ; the setback variance is granted .
Mr. Tselekis noted this concluded this part of the meeting . He asked if there were any other
items to discuss .
Ms . Kiley stated there would be an item on the agenda for March 20th , she will get the materials
out to the Board. members ASAP .
Ms . Geldenhuys stated she had attended the AOT meeting and found zoning training materials
presented very informative . She provided copies of the material to each of the Board members
for continuing education.
The meeting was adjourned at 7 : 35pm.
Respectfully submitted,
Robin Carlisle Peck
Secretary
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