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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 . Board of Zoning Appeals 2 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 . 2 i. Board of Zoning Appeals 3 March 6, 2013 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. 3 Board of Zoning Appeals 4 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 4 �. s