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HomeMy WebLinkAboutZBA Minutes 4.3.20181 Minutes VILLAGE OF CAYUGA HEIGHTS Tuesday, April 03, 2018 Marcham Hall ZONING BOARD OF APPEALS 6:30 p.m. Present: Members Chair J. Young, M. Eisner, S. Manning, R. Parker, and L. Staley; Code Enforcement Officer B. Cross, Deputy Clerk J. Walker, Attorney R. Marcus Absent: M. Pinnisi 1. Call to order: Chair J. Young called the meeting to order at Marcham Hall at 6:30 p.m. and appointed M. Eisner a full voting member. The Board requested an attorney/client privilege session at 6:35 p.m. The Board exited the attorney/client Privilege Session at 7:05 p.m. -That concluded this part of the meeting at Marcham Hall -The Board reconvened at the Cayuga Height Fire Department at 7:10 p.m. 2. Approval of Meeting Minutes: March 3, 2018 BE IT RESOLVED THAT: the Village of Cayuga Heights Zoning Board of Appeals approves the March 3, 2018 minutes as presented. Motion: J. Young Ayes: Chair J. Young, Members: M. Eisner, S. Manning, R. Parker and L. Staley Abstentions: None Motion carried 3. Public Comment: No members of the public wish to speak. Request by Melissa Pollock (owner but not occupant) of 202 Overlook Road, to allow for the short -term rental of an apartment for up to 120 days per year, which exceeds the maximum of 14 days allowed by 2018 Village of Cayuga Heights Zoning Ordinance Section 5.3.I.2.a: Permitted Accessory Uses. Such a request is considered a use variance in accordance with Section 5.3. I. Chair J. Young provides a background on Use Variance. Tonight’s hearing is a bit unusual, since it’s the first request for a use variance we’ve had in the Village for many years. According to NYS law, the standards our Board is required to follow for deciding on a use variance request are very different from those that apply to the much more common area variances, so I want to explain those to everyone briefly before we get started. The Zoning Board of Appeals has several responsibilities, but the most commonly invoked involves being the “safety valve” for a zoning ordinance. We are authorized to allow individual properties to be developed in a manner not allowed by zoning. For the more common “area variance” requests (lot coverage, building height, fence locations, setbacks etc.) we are instructed to weigh the benefit to the applicant against the detriment to the neighborhood. There are five specific questions we have to answer in making this tradeoff, but an area variance request doesn’t need to satisfy all five criteria to be approved. We are allowed to use our judgment in weighing the five factors and the overall balance of benefits and detriments. 2 In the case at hand, however, our Village law specifically requires the owner of any property wishing permission to exceed the number of days a property can be used for short term rentals to pursue a use variance. That is part of the law. A use variance, such as we are considering here tonight, is different than an area variance. We aren’t instructed to make any tradeoffs in this review, but instead are trying to answer a single question: has the applicant proven that the zoning law in question is causing them unnecessary hardship. To succeed in such an appeal, the owner has to show that the following four conditions all apply to the case at hand: 1) The owner cannot realize a reasonable return from any use permitted in their zoning district. Proving a reduced value for the property or establishing an ability to make more money doing something else isn’t enough. This proof needs to be established by competent financial evidence. 2) The alleged hardship relating to the property has to be unique, and not common in the neighborhood. The personal circumstances of the owner, financial or otherwise, isn’t a factor – the uniqueness of the hardship caused by the property’s condition is what matters. And it is this hardship that the variance requested should be designed to correct – they can’t be unrelated. 3) The variance requested can’t cause a detriment to the essential character of the neighborhood, or set a pattern for future development that would, in time, alter the neighborhood’s essential character. 4) Finally, the hardship can’t be self-created. If you acquire or improve land assuming a prohibited use, or ignore a property’s unique condition, that’s a self-created hardship. Unlike an area variance case, if the property owner’s hardship is self-created, the Zoning Board cannot grant the variance. As one court noted on appeal, “the courts should not be placed in the position of having to guarantee the investments of careless land buyers”. As you can see, this is a pretty strict standard, and so the process we will be going through tonight will be quite different than what some of you may have seen in previous area variance appeals in the Village. We’re going to proceed slowly and take legal advice freely and liberally tonight in an effort to make sure that we handle the appeal before us correctly, and provide the applicant every consideration. But I do want to highlight in advance the fact that our standards and procedures tonight will be different than what they are for an area variance appeal, and that we must find that all of the four specific tests I just detailed have been met by the applicant before we can grant the requested variance. Three out of four isn’t sufficient – these rules are all firm legal requirements. Code Enforcement Officer B. Cross, informed the Board of the application was denied allowing more than 14 days of a short-term rental in homes that are not owner occupied. A Variance request by the applicant was then generated for the Zoning Board of Appeals. Code Enforcement Officer B. Cross stated the only correspondence from the public, were 3 submitted letters. 3 4 Chair J. Young opens the Public Hearing at 7:40 p.m. 5 Applicant Melissa Pollack opened the discussion with examples of a reasonable rate of return. She stated that an expected rate of return for our market area is 10.7%. She could expect a return of 2-3% and could accomplish that with the requested 120 days, and also seek 3-month rental lease terms. Her opinion of the wording “short term” meant less than a one-year lease. If she rented long term, she would have a negative rate of return. Last year she had 102 short term rental days and no one noticed. Chair J. Young said the mortgage payments aren’t generally an applicable expense. When you remove that from the long- term proposal your rate of return will still be around 3.44%. M. Pollack would like to see a 6% rate of return. Attorney R. Marcus said that, the law states it is not whether the prohibited use will generate a reasonable rate of return, it states the applicant is required to prove to the Board that any permitted use does not produce a reasonable rate of return. It is not the role of a Zoning Board to improve a property owner’s return, or account for any amount of money invested in the property. R. Parker asked if a long-term rental resulted in a 5% rate of return. M. Pollack stated that “yes” but long-term rental also would be detrimental to the character of the neighborhood and a lot more wear and tear on the property. M. Pollack also mentioned, in her research, Article 2- (?) focused on several purposes and the intent of “use” -Secure from fire and other dangers- it is totally fixed up and not a danger -Maintain and protect the value of the property- she has been directly affected; the upper unit is part of the property now and helps protect the value of the neighborhood. -Preventing overcrowding- M Pollack stated living on a quiet street helps R. Parker asked why the applicant feels long term rents are so negative to pursue. M. Pollack stated the rate of return is much less. She could not make a large enough rate of return for long term rentals. M. Eisner reminded the applicant, any type of non-owner-occupied rental in the Village was prohibited beyond 14 days. The new Zoning Law allows owner occupied short term rentals up to 28 days. J. Young stated, “the point is you have a legal use, and can rent the unit out long term. Your request is to get permission for a short-term rental that exceed the allowable use limit”. L Staley, stated that looking at the financials submitted, all the proposed scenarios provide a reasonable rate of return, which in fact works against the applicant. M. Pollack stated, the main reason we bought the property was to protect our primary residence. The hardship to us, is unique because we had to basically rebuild the whole structure. We border 7-8 properties and other neighbors would be upset if we left it in the previous condition. We involved an architect and decided to start from scratch, and replace everything. We expected to spend around $200,000. L.Staley stated that the Board is back to the “self-created” determination. The Board cannot be placed in a position to guarantee investments by an applicant. Attorney R. Marcus stated that generally across the state, most municipalities do not allow short term rentals. During discussions, a question of how many stories of living space, in the upper unit. The applicants replied there are 4 stories. For the record, B. Cross said, the upper unit is not a 4-story building, but in fact a 4-level building. 6 Planning Board Chair F. Cowett, requested the Board to consider Section 5.2. l -use of a dwelling unit or portion of a dwelling unit for a short-term rental is permitted only when the residences containing the dwelling unit is the primary residence of the property owner. And only as an accessory use pursuant to 5.3.i Mayor Woodard spoke to the Board and stated, the intent of the Board of Trustee’s was to prevent people from buying up houses in the Village and operating short-term rentals. Tonight’s request is to use 202 Overlook for 120 days of short-term rental. The Board agreed that in accordance with Section 5.2.1, 202 Overlook (upper unit) has zero allowed short-term rental days as a non- owner-occupied residence. This finding did not affect the discussion of whether the applicant could have 120 days. M. Pollack ask B. Cross for a definition of a residence, he replied as -a physical place occupied for a dwelling. 7 Chair J. Young closes the Public Hearing at 8:47 p.m. 8 9 The responses of the application are subject to review and further verification. The changes above are initialed by the applicant. BE IT RESOLVED THAT: the Village of Cayuga Heights Zoning Board of Appeals approves the findings in SEQR Part 1 as presented. Motion: M. Eisner Second: R. Parker Ayes: Chair J. Young, Members: M. Eisner, S. Manning, R. Parker and L. Staley Abstentions: None Motion carried 10 3.2018 11 BE IT RESOLVED THAT: the Village of Cayuga Heights Zoning Board of Appeals approves the findings in SEQR Part II as presented. Motion: J. Young Second: M. Eisner Ayes: Chair J. Young, Members: M. Eisner, S. Manning, R. Parker and L. Staley Abstentions: None Motion carried 12 13 BE IT RESOLVED THAT: the Village of Cayuga Heights Zoning Board of Appeals approves the findings in SEQR Part III as presented. Motion: R. Parker Second: S. Manning Ayes: Chair J. Young, Members: M. Eisner, S. Manning, R. Parker and L. Staley Abstentions: None Motion carried B.Cross stated there was no need for this case to be referred to Tompkins Coundy Planning Department for General Municipal Law 239. If requesting a use variance, that is, permission to establish a use of property not otherwise permitted in the zoning district, the applicant must prove "unnecessary hardship." To prove this, State law requires the applicant to show all of the following: (1) the applicant cannot realize a reasonable return, provided that lack of return is substantial as demonstrated by competent financial evidence. There are legally permitted uses that would provide a reasonable return: long term rentals in both units; some monthly rentals; sale to a 3rd party. The submitted financial data was based on both units and not just the upper unit which is the unit for which the applicants have requested a variance. If all the expenses for this parcel (upper unit) were taken into account on an annual basis vs income expected to be obtained by fully renting the lower unit, that alone is enough to generate a positive return. And any rental of the upper unit would only increase the return. The property is capable of generating a reasonable return if used for purposes permitted under the Zoning Law. Ayes: Chair J. Young, Members: S. Manning, R. Parker and L. Staley Abstentions: M. Eisner (2) that the alleged hardship relating to the property in question is unique, and does not apply to a substantial portion of the Zoning district or neighborhood. Most quality houses in the Village are hard to make a large rental return on long term. This property is not that different than others in the neighborhood. The unit is around 900 square feet. Minimum unit requirement is 700 square feet. B. Cross informed the Board, in the Village 17% of the properties have accessory apartments. The Property is not unique alone. Ayes: Chair J. Young, Members: M. Eisner S. Manning, and L. Staley Abstentions: R. Parker (3) that the variance, if granted, will not alter the essential character of the neighborhood. 14 The Board received several letters in favor of allowing the short-term rental in excess of the permitted 14 days, the property is on a quiet road and the property enhances the character of the neighborhood. The use of this property as requested by the applicant will not alter the essential character of the neighborhood. Ayes: Chair J. Young, Members: M. Eisner S. Manning, R. Parker, and L. Staley Nays: None (4) that the hardship is not self-created. The applicant acquired and reconstructed the property subject to the provisions of the Zoning Law that did not allow any short-term rental. The hardship is self-created. Ayes: Chair J. Young, Members: M. Eisner S. Manning, R. Parker, and L. Staley Nays: None The conditions for approving the applicant’s variance have been reviewed, and the Zoning Board of Appeals denies the variance request. Motion: S. Manning Second: R. Parker Ayes: Chair J. Young, Members: M. Eisner S. Manning, R. Parker, and L. Staley Nays: None Motion: Carried A member of the public asked about chickens and what are the laws in the Village on chickens. There will be future discussions at the monthly Board of Trustees on possible changes to the Zoning Law concerning Chickens. Chair J. Young adjourned the meeting at 9:52