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HomeMy WebLinkAboutBZA Minutes - September 22, 2020Town of Danby Board of Zoning Appeals Minutes of Hearing and Meeting September 22, 2020 PRESENT: Lew Billington Gary Bortz Toby Dean Betsy Lamb Earl Hicks OTHER ATTENDEES: Town Planner Jason Haremza Recording Secretary Alyssa de Villiers Public Dana Berger, Marc Berger, Leslie Connors (Town Councilperson), John Czamanske, Katharine Hunter, Dave Tedeyan, Olivia Vent This meeting was conducted virtually on the Zoom platform. The meeting was opened at 7:08pm. MINUTES APPROVAL MOTION: Approve minutes from the July 28th meeting Moved by Lamb, seconded by Dean The motion passed. In favor: Billington, Bortz, Dean, Lamb, Hicks PUBLIC HEARING Case #1, VAR-2020-06 Consider Area Variance Project: Installation of ground mounted solar energy system Location: 165 East Miller Road, Tax Parcel 7.-1-98 Applicant: Dave Tedeyan Anticipated Board action(s) this month: Public hearing, vote on variance Project Description: The applicant proposes to install a ground mounted solar system that does not meet the 50’ side setback and 75’ rear setback requirement of the Low Density Residential District (Zoning Ordinance Section 600-6) and the setback requirement of ground mounted solar collection systems (Zoning Ordinance Section 714iii(a)(ii)). Therefore, the applicant has requested an area variance from the above referenced sections of the Zoning Ordinance. 1  BOARD OF ZONING APPEALS MINUTES  Per the State Environmental Quality Review Act (SEQRA), as well as Local Law #2 of 1991, (Providing for Environmental Review in the Town of Danby), the action is considered a Type 2 Action. No further environmental review is required. Per an intermunicipal agreement between Tompkins County and the Town of Danby, the proposed action is exempt from county review under New York State General Municipal Law Section 239. The public hearing was opened at 7:16 p.m. Chair Hicks introduced the BZA members, described the Board’s process, and read the project description. No Board members stated a conflict of interest. Applicant’s Description Dave Tedeyan said he was an engineer representing Marc Berger. He explained that he did a site visit for Mr. Berger to identify where they could put solar on the property. After checking all areas of the property, he laid out the array and applied for a building permit, which is when they learned about the setback requirements. He returned to the site to see if they could comply with the setbacks and still have the project be feasible, but he did not feel anywhere else was available due to shading and existing trees, even after considering breaking the array into two parts. He noted that surrounding towns have significantly smaller setback requirements for solar. He added that the lot depth of this part of the property is 196’, less than the required 300’, so there is very little room between the 50’ front setback and the 75’ rear yard setback to place the array. He said he is proposing a 15’ side yard setback and a 35’ rear yard setback. He thought this would keep the array less visible from the road and nearby neighbors. He did not think it would harm anyone else, and it would very clearly be within Mr. Berger’s property. He said the footprint of the proposed array is approx. 570 sq. ft., 57’ long (east-west) by 10’ deep. The rear part of the array would be about 10’ above the ground and the front about 3’ above the ground; the array would be facing away from the road. Mr. Berger added that they were surprised Danby’s setbacks did not conform to those of surrounding localities, and they do not understand why this is the case. He pointed out that it is a considerable expense to go solar, and the whole project would be compromised in terms of investment except in the area they are looking at. He noted that there is a line of trees that is not entirely on his property that they need to get to the east of for it to make sense. Public Comment Two written statements were received via email (see attached). One was from Olivia Vent (194 E. Miller Rd.) saying that she would be seriously affected and asking that no variance be granted until more information was provided to the neighbors. She asked that stakes be placed showing the width and height of the proposed installation. The other was from Brian Miller, who owns the property directly to the east of Mr. Berger. He said he strongly objects to the request. He said he did not want encroachment on his boundaries and felt the petitioner had room on the property within the existing guidelines. He thought a ground-mounted system could be a detriment to wildlife and detract from views. 2  BOARD OF ZONING APPEALS MINUTES  Response: Mr. Tedeyan did not think the array would affect wildlife. He said there was not enough south-facing roof, and everywhere else there were too many trees to be viable; on the property, the farther south and east, the better for the array. Olivia Vent said she appreciated getting more information from. Mr. Tedeyan’s presentation, specifically the size specifications. She said the proposed location is directly in her viewscape from much of her house and property. She thought it would be possible to move the array further west and still have strong solar capture, which would give her more protection. She said she was very concerned about the placement, and she added that she thought Mr. Berger could appreciate this as he has had concerns about buildings in his viewscape in the past. She said her request if a variance is granted is to move it to the west. She also raised the idea of planting a screen. She thought there was a double standard in that Mr. Berger was asking for a variance to put solar panels in a place that was aesthetically good for him but not for neighbors. Response: Mr. Tedeyan thought it could be up to a 15–20% reduction in solar output moving the array 50’ to the west. He said that significantly affects the economics of the system, and he was not sure Mr. Berger would be willing to pay 20% more to maintain the system output. Mr. Berger said the variance request was on an efficiency basis not an aesthetic basis. Mr. Tedeyan later added via “Chat” that making the side setback 25’ rather than the proposed 15’ would be much better than meeting the full 50’ setback. He added verbally that the rear setback had less flexibility due to a large poplar tree. Katharine Hunter said via “Chat” that she was quite concerned about solar array placements and reflections toward neighbors and drivers, but she felt it was hard to suggest that someone should not be able to do a good thing and "go solar." Response: Board member Lamb clarified the panels were facing south with no reflections aimed at E. Miller Rd. or Troy Rd., and Mr. Tedeyan said that was correct. He added that the glass will face the open field to the south where there are no buildings. Mr. Berger asked if there was anything in Danby promoting the transition to solar or cleaner sources of energy; he had imagined the community would be supportive of the idea. He said that given the size of solar arrays, it would be hard for them not to be in someone’s view, but he understood Ms. Vent’s concern. Ms. Vent said she was supportive of alternative sources of energy, but the placement of this set of panels would have a direct impact on her and other neighbors. Planner Haremza said he was surprised by the tension in a community that purports to support alternative energy in theory, but when it comes to practice, runs into practical difficulties with what he views as a fairly restrictive code. Ms. Vent said she would like more exploration and more time to see if there was a way to mitigate some of the impact on her viewscape. She suggested meeting on the property with Mr. Tedeyan and Mr. Berger and putting in some stakes with flags to see whether there might be the possibility for a compromise where Mr. Berger would not reduce his solar capture and investment, but there would not be such a profound impact on her everyday life. Planner Haremza said the Board could table a decision until next month. Mr. 3  BOARD OF ZONING APPEALS MINUTES  Tedeyan said if they tabled the decision, it would likely push the install completion into the following year, and there would be a reduction in tax credits. Mr. Berger said he would prefer a decision on the matter. He pointed out that it will take him at least eight years to break even under optimum conditions if he makes the investment. Board Questions and Discussion Regarding setbacks, Hicks said the goal is to establish space in the Low Density Residential zone; without the setback requirements, the Town would have a much higher density and feel a lot different. Hicks suggested looking at where Mr. Berger could site the array to be in compliance with the Ordinance, and Planner Haremza showed a map with the setbacks marked. Hicks said his point was that if the array met the setback requirements, neighbors would not be able to provide feedback, but it would still have a substantial visual impact. He asked Mr. Tedeyan if he had done an analysis of the impact of shifting the array to the west as Ms. Vent had suggested; Mr. Tedeyan said the efficiency would be reduced for sure and later gave an estimate of 15–20% (mentioned in the previous section). Hicks noted that the array would comply with the side setback if it were moved an additional 35’ to the west of the proposed location. Lamb asked about Mr. Tedeyan’s idea about having multiple sections. Mr. Tedeyan said he considered having a north array and a south array that would meet the setback requirements, but this was less ideal, and some trees of Mr. Berger’s would need to be removed. He noted this would likely be more in Ms. Vent’s viewshed rather than less. Mr. Berger later said multiple arrays were not on the table for him. Lamb also asked whether Mr. Berger would be willing to put in some kind of plant screen. She said that because it is a variance, what the neighbors think makes a difference. Ms. Vent said, if a screen was to be planted, her concern was to the east of the panels, not the north. There was some discussion of how moving the array would affect Ms. Vent’s viewshed. Mr. Berger posited that complying with the code would place the array more in her viewshed as it would be closer to the road. Ms. Vent did not agree and emphasized that without putting stakes in the ground, it was impossible to say what impact the placement would have. Dean asked where the shade would come from if the array were moved west to meet the 50’ side setback. Mr. Tedeyan said the poplar tree becomes an issue if they have to keep the 75’ rear setback. Moving to the west, the shade would be from the (north-south) line of mature trees to the west, which continue to the south off of Mr. Berger’s property. Dean also asked if other towns classify solar as accessory buildings. Haremza said he thought so, and he was surprised Danby likens solar systems to a principal use of the property, whereas a garage or a barn could be built within 10’ of the property line. Bortz and Lamb both asked about the removal of the poplar tree. While Mr. Tedeyan said it would then be theoretically possible to locate the array in the middle of the property, Mr. Berger felt it would then bifurcate his property in a way that was unacceptable. Bortz asked about where the array could be without the variance. Mr. Tedeyan said it would be physically possible, but there would be efficiency losses. In 4  BOARD OF ZONING APPEALS MINUTES  response to a question from Lamb, Mr. Berger said he did not think he would put the solar panels in without a variance because it would not make sense. Hicks briefly considered the effects of a new house being built on Mr. Miller’s adjacent land, which is an expected event. Mr. Berger felt none of the five criteria address hypothetical future properties; Hicks thought question one regarding change in neighborhood character was hypothetical. There was a brief discussion of Mr. Miller’s property, which came before the Board for an Area Variance on April 14, 2020, at which time a condition was placed on it; Planner Haremza said that conditions are imposed by the land use boards, not based on neighbors’ requests. The public hearing was closed at 8:39 p.m. Area Variance Findings & Decision The Board of Zoning Appeals considered the appeal of Dave Tedeyan regarding the property at 165 East Miller Road (Tax Parcel 7.-1-98) for an Area Variance from the Zoning Ordinance Sections 600-6 and 714iii(a)(ii). The property is in the Low Density Residential Zone. 1. The Board agreed that an undesirable change would be produced in the character of the neighborhood or a detriment to nearby properties. Bortz thought there might be a change for the nearby properties, including the adjacent parcel of Brian Miller’s where a house may be built; they may want all the setbacks enforced. Dean agreed and noted two neighbors were having problems with the project as proposed. Billington also agreed with Bortz. While he understood Ms. Vent’s point of view, he noted that if another house goes in, it, too, would alter the viewshed. He said he would prefer to make a decision after it was explored further with the neighbors. Lamb said it was true that any solar would affect someone’s view. She agreed with Bortz and Dean. She thought 15’ was a big difference from the requirement of 50’; it is a large variance in addition to unhappy neighbors. Hicks said he felt similarly to the rest of the Board. He felt solar enhances the character of a neighborhood but also felt view was important. He thought if the array was code compliant there would likely be a similar impact on Ms. Vent’s view. However, given the scope of variance being asked for, he thought there was undesirable impact to some extent. 2. The Board was split on whether the benefit sought by the applicant could be achieved by a feasible alternative of the variance. (2 yeas: Bortz, Dean, 3 nays: Billington, Lamb, Hicks) Bortz thought there might be feasible alternatives where they could put the array legally. Dean thought there might be room for compromise, and he said he would like to consider reducing the side variance; he also would consider requiring a foliage screen to reduce the visual impact. He understood the point that it was not worth putting up the array if it was completely within the setbacks but thought it could be moved somewhat to the west. Billington agreed with Dean but thought there were not feasible alternatives. Lamb noted 5  BOARD OF ZONING APPEALS MINUTES  that the solar installer said there were not feasible alternatives to get the needed efficiency. Hicks said, based on the conversation, he did not think they had identified a feasible alternative. 3. The Board agreed that the requested variance was substantial. The side setback requested was 15’, a 35’ variance compared to the 50’ requirement, and the rear setback requested was 35’ compared to the 75’ requirement. 4. The Board agreed the variance would not have an adverse impact on the physical or environmental conditions in the neighborhood. Dean said he did not feel solar panels were an adverse impact. 5. The Board agreed that the alleged difficulty was self-created. Bortz thought yes because he felt there were other feasible places for the array. Planner Haremza said the Board has 62 days to render a decision. They could hold their decision, approve, deny, or approve with conditions. Answering a question from Lamb, he said that if the applicant comes back with an altered proposal, it is likely the variances would still be for the setbacks, although the degree might diminish. If that was the case, and the Board were to grant it, it would be granting “lesser relief” rather than the applicants having to do a new application. Haremza added that the BZA can grant whatever it wishes; it is a courtesy to offer negotiation between the applicant and the neighbors and gain their buy-in. Dean made a motion to approve the variance with the condition that a shrubbery foliage screen be added on the north and northeast corner to reduce the visual impact. The motion was not taken up for want of a second. Bortz felt there were too many unanswered questions. He suggested adjourning to a later time or approving or disapproving the proposal as it was. The rest of the Board agreed they could meet sooner than next month and thought that was the best option. Mr. Tedeyan confirmed that the project could be done before the end of the year if they got approval in the first week in October. Planner Haremza said the next meeting would be a public meeting, but the public hearing had already been closed. The Board asked for the following for the next meeting: • Where else could the array go? The Board wanted to see the discussed alternatives visually on a plan. Hicks summarized this as documentation of the placement options and their net effect. • Dean asked if the array could be moved to the west to reduce one of the variance requests. • Bortz asked for Mr. Tedeyan to show where the array could be configured to meet the setback requirements, with or without the poplar. MOTION: Postpone a decision until a meeting to be held on Oct. 7, 2020 at 7 p.m. 6  BOARD OF ZONING APPEALS MINUTES  7  BOARD OF ZONING APPEALS MINUTES  Moved by Bortz, seconded by Lamb The motion passed. In favor: Billington, Bortz, Dean, Lamb, Hicks ADJOURNMENT Everyone thanked Planner Haremza for his work with the Town as it was his last meeting before leaving for a new position. The meeting was adjourned at 9:24 p.m. ___________________________________________ Alyssa de Villiers – Recording Secretary Comment 1 From: "jrmillhouse" To: "Danby Planner" <planner@townofdanbyny.org> Sent: Monday, September 21, 2020 11:09:49 AM Subject: Re: East Miller Road variance, BZA Hi Jason, Thank you for sharing my comments with the BZA tomorrow. I strongly object to the variance request on the ground mounted solar system proposal at 165 East Miller Road. I do not want encroachments on my boundaries and feel a variance would be a direct violation of the ordinances that are lenient enough now. The petitioner has more than enough property to do this within the existing guidelines or consider a roof mounted system. I also am concerned that a ground mounted system could be a detriment to the wildlife in the area and detract from the beautiful natural views. Thank you, Brian Miller ----- Comment 2 From: "Olivia Vent" To: "Jason Haremza" <jharemza@townofdanbyny.org> Cc: "Joel Gagnon" <jgagnon@townofdanbyny.org> Sent: Tuesday, September 22, 2020 4:17:12 PM Subject: 165 East Miller Road Variance. Hi Jason, in the event that I run into technical problems getting on the call tonight or fall off my bike, I'd like to go on the record as requesting that any variance not be granted until more information is provided to neighbors. I'm not sure why the application says neighbors will not be affected. Perhaps because no one was previously informed prior to the notice you sent and certain assumptions were inserted to support the application. I will be seriously affected and all neighbors directly across from 165 East Miller and on Troy Road will be affected. The panels will be directly in line of sight from every single window on the west side of my house and everywhere from the front of my house and front yard. I would like to request that the applicant place stakes to indicate the width and height of the proposed installation so that all neighbors are able to weigh in with the information they need to made an accurate assessment of impact on their quality of life. Many thanks. Olivia