ZONING BOARD OF APPEALS
MONDAY, OCTOBER 26, 2009
Members Present: Ms. Marteney, Mr. Baroody, Mr. Darrow, Mr. Tamburrino, and Mr. Westlake
Members Absent: Ms. Calarco and Mr. Bartolotta
Staff Present: Mr. Fusco, Mr. Selvek and Mr. Hicks
APPLICATIONS APPROVED: 40 Lake Avenue, 97 Hamilton Avenue
APPLICATION TABLED: 41 Steel Street
Mr. Westlake: Good evening, ladies and gentlemen, this is the Zoning Board of Appeals. Tonight we have the following items: 41 Steel Street, 40 Lake Avenue, 97 Hamilton Avenue
If there are no errors, omissions or additions to last month’s minutes of the meeting, the minutes will stand as written. All in favor.
Mr. Fusco: Members of the public and applicants, this is a seven (7) member board, we will vote on your application at the end, you will need four (4) affirmative votes for our application to pass. We have five (5) member present tonight so you will need four (4) affirmative votes tonight. What we do in situations like this where we are short on attendance or close, five (5) or less members, we do routinely give the applicant the option of tabling the matter or adjourning the matter for one month if they think things aren’t going their way. I looked at the agenda tonight and I am confidant that we can go forward now, but if you feel uncomfortable we certainly have no problem in holding over for a month or so to give us the opportunity to have a more representative panel here. So with that I will have the Chairman
begin the meeting.
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41 Steel Street. R1A zoning district. Area variances and a use variance for the conversion to a two-unit dwelling structure. Brandon Mallory, applicant.
Mr. Westlake: 41 Steel Street. If you don’t get four (4) affirmative votes tonight, it is all over, so that it is up to you whether you want to adjourn it tonight and wait for a full board or go ahead.
Mr. Fusco: Why don’t we do this, let’s begin taking the proof and see how things go.
Mr. Darrow: Then again, what about the other two (2) members if they decide to
Mr. Fusco: That is a possibility as well
Mr. Darrow: They either have to catch up with the minutes
Mr. Fusco: My point is this, we did this once a couple of months ago on a case and I personally was accused of fixing the outcome, it is not in my hands at all, we do almost routinely.
Mr. Westlake: Give want to give you the option, you know you have to have four (4) affirmative votes, there are only five (5) of us here tonight, if two (2) of us were to vote no, you can’t bring the matter back before us again, as it has been denied. I would like to tell you that next month all seven (7) of us will be here, I will try my best to have them here. I am going to try to find out tomorrow morning from the Mayor why the two (2) people aren’t here and they may have to be reappointed with new people because they have been missing quite a few meetings. So that is up to you now 41 Steel if you want to come to podium or if you want to table
Mr. Mallory: Unfortunately my lawyer could not be here he is stuck in Moravia. I have some information; can I pass out to you guys?
Mr. Fusco: Would you prefer to wait for Mr. Sedor?
Mr. Mallory: No, I would prefer to move forward.
Mr. Westlake: I just want to make sure you know your options. Raise the microphone up and speak into it so that we can record it.
Mr. Mallory: I am here on behalf of 41 Steel Street, which I purchased in May of 2009, it is a two-family. I received confirmation; actually my realtor received a letter from the City on August 3rd regarding the status of the property being reduced from a multi family to a single-family dwelling. My intentions for buying the property were to either keep it as a rental or to sell it in the future. It was kind of a shock to me as far as the information that the City told me that they reduced it due to something that City Council had passed which I wasn’t aware of, this isn’t something I do for a living. In any event pretty much what I stand to lose a lot, I have a lot invested in this, I stand to lose a lot of money especially in this economy as far as this goes, have you looked at the cost analysis
in the information that I gave you, you can see the break down of what I paid for the property and the improvements that I have made to it and the utilities and difference in price between the single family and a multi family.
Mr. Fusco: What is the carrying cost?
Mr. Mallory: Carrying cost would be mortgage payments, which is about $500 a month. Based on the cost analysis I stand lose and this is a little estimate as far as what the work would be needed to be done. Not only the property value I feel would be decreased but also the desire for the single family property in a predominately multi family area. If you look at the pictures I provided on both sides of the house there are multi family and also across the street and most of the houses on that street are multi family, so if I were to have to invest the money to change it back into a single family, even if I was to do that, the desire to have somebody buy a property as a single family in a multi family area is really not there, so I can up actually end up losing a lot more the longer it stays on the market or if I am not
able to rent it out.
Mr. Fusco: Mr. Mallory, where are the $5,000 worth of updates that you made after the purchase?
Mr. Mallory: They were all cosmetic, the property actually was in pretty good shape, mostly paint and cleaning up, small changes of plumbing fixtures, light fixtures, outlets, nothing major, but if I were to have to convert it back to single family, there will have to be structural changes, kitchen changes, it is obviously set up for a multi family, it has been a multi family since the 1970’s. For thirty (30) plus years it has been a multi family so there will have to be a lot of improvements in order to convert this back to a single family and even if that is done, I still think that at that point it still wouldn’t be valuable as far as a buyer because for a buyer to buy a home surrounded by multi families isn’t very desirable.
Mr. Fusco: How did you come to the conclusion that those changes that you would have to make to renovate it from a two family to a single family total $10,000.00?
Mr. Mallory: I talked to a couple people regarding the kitchens, both kitchens right now are set up for apartment size I guess you can say so that would need to be renovated, windows probably need to be replaced, walls taken down, carpet done just that alone is probably more than $10,000.00, I was just really liberal on that.
Mr. Fusco: We had a case like this not too long ago, could you tell the members of the board how did come to lose its two family status?
Mr. Mallory: In the packet that I provided there is a violation from Codes that the water was shut off and they condemned it in 2008, so they told me after six (6) months is when it loses ones of its units, so what happened is in February the City converted it back to a single family. Where the gray area is when I became interested in this property it was in January and my realtor and the listing realtor called Codes and called the Assessor and it was listed as an active two family. So they called Codes in January and it was still a legal two family. So at that point when they checked it
Mr. Westlake: Do you have a letter from Codes stating it was a two family?
Mr. Mallory: It is in the packet, from the Assessor, I highlighted
it – active two family
Mr. Westlake: No, not the Assessor, you said you got it from Codes
Mr. Mallory: My realtor
Mr. Westlake: The second bullet here says, “I was told by Codes that it was a legal two family”.
Mr. Mallory: That was from my realtor.
Mr. Westlake: Realtor doesn’t count; Code Enforcement Office is the one that counts.
Mr. Mallory: What happened is what he told me, I am really not too familiar, I don’t do real estate, but
Mr. Westlake: Sounds to me like your realtor told you something that it wasn’t. Did you get a letter from Codes stating it was a two family?
Mr. Mallory: No. But Codes I think will agree
Mr. Westlake: If they agreed with you, we wouldn’t be here tonight.
Mr. Fusco: I think what Mr. Mallory is saying that at the time of the listing the six-month abandonment period had not yet run.
Mr. Mallory: Right.
Mr. Fusco: It ran during the listing. So at the time of the listing it was not deemed as abandonment subsequently when he purchased it that six-month period had run.
Mr. Mallory: In January when they called it was a two family until March.
Mr. Westlake: What I am trying to say is if he had a letter from Codes that it was a two family when he was trying to purchase it, I know it would make my mind feel better.
Mr. Fusco: Brian, do you have any insight on that issue?
Mr. Hicks: It still was a two family in January, but come February, I am not sure what the date would be that is when it changed over due to the utilities. Whether or not a letter from us in January would be allowable in a February or March date is another issue.
Mr. Westlake: If he was trying to buy and he did have a letter from you saying when he was trying to purchase it, it was a two family, then it would probably be a two family today.
Mr. Mallory: When the realtor called Codes it would have been a two family so between it takes a while to close on the home, between the abstract, title and lawyers and everything it is about ninety (90) days so between the first offer made and accepted and you know the lawyers going through and doing all their stuff that is when the two family status was removed.
Mr. Darrow: Do you have a copy of your Purchase Offer with a date on it when it submitted?
Mr. Mallory: No, I don’t, but it is on the web sheet it was highlighted on the second one, 5/15/09, closing date.
Mr. Darrow: Right, but when you submitted your Purchase Offer and it was accepted.
Mr. Mallory: I don’t have a copy of the Purchase Offer.
Mr. Fusco: The document that you refer to shows the closing date and also indicates the listing date was February 27, 2009, not January 2009.
Mr. Mallory: Well it was in foreclosure in January 2009 that is when I started looking at this property, it was condemned in September so March was actually when the two family status was lost. In that period I honestly wasn’t aware I thought I was buying a two family, the lawyer said two family, the realtor said two family, Codes at that point said two family but there was obviously there were dates between the point of when I was looking at the house and put in a Purchase Offer until that date between the closing date and I actually took possession of the house. I probably wouldn’t have bought the property if it was a single family, I thought it was a good thing, it was a vacant property it was condemned, I went in there and I tried to clean it up a little bit, make it a little nicer, obviously the
neighbors appreciated it and it is a whole misunderstanding which obviously the only thing that is going to come out of it is me having issues as far as financially, I stand to lose a lot of money, I am 29 years old and I don’t do this for a living so I being ignorant about the situation is no excuse.
Mr. Baroody: You bought a double that was in foreclosure, the status expired before you purchased it and switched back, I don’t know if there was any way that you could know that.
Mr. Mallory: Right, exactly.
Mr. Westlake: I feel more comfortable now knowing that when he purchased it, it was a two family when he purchased it and just through legal things it takes time
Ms. Marteney: The time frame.
Mr. Darrow: It may be worth you while to table and get your Purchase Offer so we know the date and have hard factual evidence of the hardship you will suffer to convert that back, actual monetary figures on estimates and proposals from contractors to back up the proof of it is going to cost “X” amount of dollars to convert it back. Another thing that would help you also any receipts that show that you did spend $5,000.00 updating it.
Mr. Mallory: Ok.
Ms. Marteney: I think if you look at the letter from Ed too all it says it has lost its two unit status due to the length of time the property has been condemned. Doesn’t say when it was condemned.
Mr. Fusco: I think we can safely assume if the water was turned off in September that the six month period could have run into March and it was stated that he negotiated a purchase before that.
Mr. Mallory: I already went in and did the work as a multi family and I was not even aware of it until
Mr. Fusco: You find out about it eleven (11) months later.
Mr. Mallory: Correct.
Mr. Westlake: Do you want to go forward or table?
Mr. Mallory: I would rather move forward at this point.
Mr. Fusco: You do realize that once this is on the record so that you are fully advised, I don’t read minds, I don’t know how these people are going to vote, but if they vote against you tonight, you lost and the only way you could ever ever come back is if subsequently it is unanimous for the right to be heard and the ultimate vote has to be unanimous for a rehearing under the law. So think for a minute.
Mr. Darrow: We are required to have certain proof in front of us, pass a certain test of criteria if you will, without documentation of the hardship that you would suffer if you were forced to turn it back, the documentation that you did in good will buy it as a two family, documentation of what you did put into it, it makes it tough because all we have is numbers on a paper.
Mr. Fusco: Mr. Mallory some of the numbers on your paper I would charge the members as a matter of law don’t count, you paid utilities, you paid mortgage that doesn’t count towards hardship, but you did make some expenditures in the good faith belief that it was a two family house, up to $5,000.00, that does count if you can prove it. That you believe it is going to cost you another $10,000.00 to convert from a two family to a one family because you are going to have to move kitchens and the like, that does count as well in proving your hardship. I think what Mr. Darrow is suggesting is some receipts or some proof to back up these conclusions that you have given us would give you a stronger case.
Mr. Westlake: With the Purchase Offer, that date would mean a lot to me because once you put the Purchase Offer in, you are acting in good will that you are going to buy the property. Codes does what it has to do, we are the Zoning Board of Appeals, so we have to look at everything before we allow an appeal.
Mr. Mallory: I want to do whatever that will make you comfortable. I would like to table it and come back next month and give you the information that you are asking for and go from there.
Mr. Fusco: We can complete the SEQRA aspect of this. You have the short form EAF before you. I will advise you that it is an unlisted action, a single agency review, doesn’t need to be coordinated with any other agency nor is a full environmental assessment form required. I have had an opportunity to see his responses to C-1through C-6 and I would recommend for the reasons listed there that we issue a Negative Declaration on the SEQRA.
Mr. Westlake: In the packet it says to be completed by applicant.
Mr. Mallory: When I did the packet I didn’t know that I had to do it, I thought it was for a new structure, but I did get a copy and completed it and it is in the folder I gave to you.
Mr. Selvek: I would ask the board to refer to the Part II of the EAF that I drafted for the board and is in your packets. Part I has been completed by the applicant and Part II I drafted answers to C2, C4, and C6 generally referring to issues within our current Comprehensive Planning Code that do raise concerns of conversions of single family to two units. But I also do note that this particular home is located directly adjacent to the multi family district and would concur with Counsel recommendation that the board consider a Negative Declaration.
Mr. Darrow: I would like to make a motion that we find a Negative Declaration for Brandon Mallory of 41 Steel Street, Auburn, New York for the purpose of use variance for a two family unit.
Mr. Baroody: I second that motion.
VOTING IN FAVOR OF NEGATIVE DECLARATION: Ms. Marteney, Mr. Baroody, Mr. Darrow, Mr. Tamburrino and Mr. Westlake.
Mr. Westlake: Negative Declaration has been approved. We have one step taken care of.
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40 Lake Avenue. R1 zoning district. Area variance to erect an 8 x 18 addition to the south of the structure. Peter and Anna Hlywa, applicants.
Mr. Westlake: 40 Lake Avenue, would you come to the podium, pull the microphone down and tell your name clearly and what you would like to do.
Mr. Hlywa: Good evening, Peter Hlywa, 40 Lake Avenue. I am here tonight for a side area variance. Looking to construct an 8 x 18 addition to our first floor laundry and bathroom.
Mr. Westlake: Any questions from the board?
Mr. Baroody: The side yard, standing there and looking at your house?
Mr. Hlywa: Yes the side yard.
Mr. Darrow: I notice minutes from a previous meeting, but it wasn’t for the same addition correct?
Mr. Hlywa: The original addition was a 8 x 12 still same variance, coming off the house on the south, the first one was a two story.
Mr. Darrow: Ok, all right.
Mr. Westlake: Is there anyone here wishing to speak for or against this application? Seeing none, we will discuss amongst ourselves. Thank you very much.
Mr. Darrow: The neighbor, who is three (3) feet away from him, doesn’t have a problem with it. That would be the only concern I really had when looking at the packet.
Mr. Westlake: Do I hear a motion?
Mr. Darrow: I would like to make a motion that we grant Peter and Anna Hlywa of 40 Lake Avenue a seven (7) foot side yard area set back variance for the purpose of constructing a single story 8 x 18 addition on the south side of the dwelling as submitted in plot plan.
Mr. Tamburrino: I second the motion.
VOTING IN FAVOR: Ms. Marteney, Mr. Baroody, Mr. Darrow, Mr. Tamburrino and Mr. Westlake.
Mr. Westlake: Your application has been approved, good luck with your project.
Mr. Hlywa: Thank you. _____________________________________________________________
97 Hamilton Avenue. R1A zoning district. Area variance to erect a 4 foot privacy fence in the secondary front yard. Torin Dunn, applicant.
Mr. Westlake: 97 Hamilton Avenue, would you come to the podium, pull the microphone down, tell us your name and what you would like to do.
Ms. Dunn: My name is Torin Dunn and I would like to erect a four (4) foot privacy fence from my front side yard, it has to be forty (40) feet from the sidewalk going back. I would like to start it at twenty-four (24) feet, to include my side door, maybe a little more yard, I don’t have much yard to begin with I have two (2) small children I would like to give them as much room as possible to play in.
Ms. Marteney: I am not sure where you are talking about.
Mr. Darrow: Your side yard is on Lake Avenue?
Ms. Dunn: Yes.
Ms. Marteney: That is where you want to put it.
Ms. Dunn: Yes. The fence will go all the way around the house but the problem was on the Lake Avenue side have the fence started a little bit closer than the forty (40) feet that Codes wants. The fence will go up to the sidewalk because it is a four (4) foot that is allowed. It is picket fence so it is see through.
Mr. Tamburrino: You are going (points to map) from here to picket fence here and all the way across here?
Ms. Dunn: Yes the junction of my house and the front porch, over to the sidewalk, follow the sidewalk down to my property line and continue the twenty-four (24) feet in. Do you want me to show you?
Mr. Tamburrino: Yes. (Points out to Mr. Tamburrino on the map).
Ms. Dunn: Only problem is right here (points to map) I did draw a bigger picture, I drew it with the measurements and everything and he said he was going to add it to the packet.
Mr. Westlake: Is there anyone here wishing to speak for or against this application? Seeing none, we will discuss amongst ourselves.
Mr. Darrow: I would like to make a motion that we grant Torin Dunn of 97 Hamilton Avenue a four (4) foot height variance for a privacy fence for the Lake Avenue side yard as submitted in plot plan.
Mr. Baroody: I second that motion.
VOTING IN FAVOR: Ms. Marteney, Mr. Baroody, Mr. Darrow, Mr. Tamburrino and Mr. Westlake.
Mr. Westlake: Your application has been approved, good luck with your project.
Ms. Dunn: Thank you very much.
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