ZONING BOARD OF APPEALS
MONDAY, JULY 29, 2002
Members Present: Mr. Hare , Mr. Darrow, Mr. Temple, Mr. Westlake, Mr. Rejman
Members Absent: Ms. Marteney (called), Mr. Gentile (called)
Staff Present: Ms. Hussey, Mr. Moore, Mr. LaDouce
APPLICATIONS APPROVED: 169 Van Anden Street, 135 Perrine Street, 91 Cottage Street, 129 Throop Avenue, 21 Sherman Street, 35 Aurelius Street, 80 Seymour Street
Mr. Rejman: Good evening, this is the Zoning Board of Appeals. This is a 7 member board, we have two members absent tonight. For any applications to pass, it needs four (4) affirmative votes. If you feel for some reason you would like to table at any time and come back with a full board, we can respect that. We have seven items on the agenda tonight: 169 Van Anden Street, 135 Perrine Street, 91 Cottage Street, 129 Throop Avenue, 21 Sherman Street, 35 Aurelius Street, 80 Seymour Street
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169 Van Anden Street, R-2, 3’side yard area variance for porch to be located on the property line. Thomas Giancola.
Mr. Rejman: 169 Van Anden Street, are you here please? Come forward and state your name for the record.
Mr. Giancola: Thomas Giancola, 169 Van Anden Street.
Mr. Rejman: Ok, Tom, what would you like to do there? What are the issues?
Mr. Giancola: There are only four tonight?
Mr. Rejman: There are five of us here, you need four affirmative votes, four yes votes.
Mr. Giancola: I will go ahead.
Mr. Rejman: What seems to be the issue here?
Mr. Giancola: I have a concrete pad that is on the side that goes to an upstairs apartment and it is on the line of the property. I am asking for a variance of 3 feet. I have to be 3 foot of the side of the property roof over pad.
Mr. Rejman: Ok. Questions from the board?
Mr. Temple: Is this a new pad?
Mr. Giancola: Yes.
Mr. Rejman: Tell us the circumstances that came about how the pad got there, how Mr. Moore got involved and you ending up here.
Mr. Giancola: There was another sidewalk concrete sidewalk there before that was falling apart. When I started taking it apart got into a little more than I thought I was going to get into and I ended up putting a new wall up and concrete over the top of it. Actually when I put it up it ended up being on my neighbor’s property because something happened with the survey work the lines, my mark is probably almost 3 foot in my neighbor’s yard and my other mark on the other side of my house ended up going the other way 3 feet into my other neighbor’s yard. So now this pad that I put on there now is right on the line. The issue I have there is why is became broken up before is I have a problem with ice coming from the roof, falls and comes down and builds up. I
had a tenant that lives upstairs and she has a friend probably about 7 years old and he about 2 years ago got hit in the head with an icicle from the ice that builds up there. My neighbor across the street told me one day he fell there too on the ice.
Mr. Rejman: Ok, so you wish to put a roof up over that?
Mr. Giancola: Yes.
Mr. Rejman: What arrangements are you making for water shedding onto the yard?
Mr. Giancola: I am going to put a gutter up. When it goes down in the back it verves all those properties down there are set on an angle so actually it is like two points where I put the new part on, I have pictures there, where it comes down and then it turns back in. One point where it turns in right on the property line. I am going to move it back and keep everything in my back yard, there is room, to the back there is like 2 feet that is my property in the back.
Mr. Rejman: Ok, good. Any other questions from the board?
Mr. Hare: What did your neighbor say?
Mr. Giancola: He is not happy about the whole deal, originally the whole surveying was – I don’t know what happened, I had Rich Wheeling got it survey originally, there are 2 marks there, I called Rich before, I never had a map of my property or nothing, Rich came down put all new 4 points in for me. I don’t know what happened. It was all messed up.
Mr. Rejman: Ok. Is there anyone here wishing to speak for or against this application? Yes, come forward please.
Mr. Petrosino: I am Bill Petrosino, I am the neighbor to the west of the property in question here. You have my letter from last month. Tom and I have spoken. My only concern was because there is 2 points to this existing structure that is there right now that is right on the line, I just wanted to make sure basically that he wasn’t going to have any gutter hang over the line having water and ice
Mr. Rejman: Encroachments
Mr. Petrosino: Yes, that is my only concern. We have spoken about it. The pad that is there if you followed normal construction procedures the soffit and probably the drain pipe or gutter pipe, whatever you call it, would be over the line. He has assured me that he is going step it in and keep it all within the property line, his own property line, so as long as he does that I have no problem with it.
Mr. Rejman: Understand that the only thing that we can do here is give a variance to the property line. No one can give a variance to exceed a property line.
Mr. Petrosino: I understand that. That was the only reason a question came up last time. To tell you the truth I was kind of surprised that Tom didn’t contact me when he was going to go for the variance that we could have straightened it out the first time around.
Mr. Rejman: Ok. Questions from the board? Thank you appreciate your comments. Anyone else wishing to speak for or against the application? Back to the board, last call for questions. Hearing none, we will close the public portion, discuss and come to an agreement. Comments.
Mr. Darrow: Looking at the pictures I completely understand the situation that he is in. I also understand Mr. Petrosino’s concern about the soffit hanging over the property line. Mr. Petrosino doesn’t have a problem and the homeowner construct the roof there and keep everything on his property. I don’t see where it should be a problem because you can see the entry way there the porch and how it does need some cover.
Mr. Temple: If we granted the variance as requested wouldn’t it take it right up to the property line? We are suppose to minimize even area variances as much as possible and give out what is absolutely necessary and I don’t generally like to give variances right to property lines.
Mr. Darrow: Did you notice the pictures though the pad goes to the property line. Look pretty silly the pad going to the property line and the roof stepped back a foot from the pad. I think the pictures are worth a thousand words.
Mr. Temple: Was the pad built without benefit of any approvals or permits, etc.
Mr. Darrow: You don’t need a permit to pour concrete.
Mr. Temple: My point is that we aren’t bound either by the fact that somebody pours concrete right up to the property line to grant them a variance right to the line.
Mr. Darrow: No, but the pad that he poured at the furthest point is only out as far as his house and you would assume that your house would ample from the property line and then steps in probably 8 to 12 inches.
Mr. Hare: One of those old houses built on a very narrow lot seems like a very common thing in the City here that we see these places right to the line with no space at all to add anything.
Mr. Darrow: If you look at the survey you can see how close that house is put to the property line.
Mr. Rejman: With the new advances in surveying, we are starting to see houses that are on or over property lines. It is getting to be quite common now a days. I understand Mr. Temple’s concern. That is why I brought up the shedding of water and I guess we are assured we are not building to the property line. I would like to bring the applicant back up for clarification.
Mr. Temple: If we grant this variance we have no control over where he goes other than the Codes Department may be in giving the permit.
Mr. Rejman: There is also opportunities to limit. Your intent on the roof line, where will the roof line be in relationship to the pad.
Mr. Giancola: There are windows in the front that I would have to stay under so underneath those windows it is like 9’6” so the front part would probably be maybe 8’ little longer than 8’.
Mr. Rejman: Talking the edge of the roof where the water is going to fall off versus the pad.
Mr. Giancola: Have to stay right with the pad then.
Mr. Rejman: You have to back off somewhere the gutter would be protruding.
Mr. Giancola: Right. I would set the 4 x 4’s that will hold the roof up back at least one foot.
Mr. Moore: Towards the rear it will be in more.
Mr. Rejman: Yes.
Mr. Moore: Towards the back it will probably line up with the house.
Mr. Giancola: Yes, also in the back there that is where I also pick up more of my property back there when the down spout comes down it will be on my property.
Mr. Darrow: How far from the door there do you plan on coming forward with the roof? Are you going to come all the way in front of the house or are you going to stop half way coming just past that side window?
Mr. Giancola: I want to come all the way to the front and then come right around the front.
Mr. Darrow: And then wrap around the front?
Mr. Giancola: Yes. This was a problem years ago on the other side, the right hand side and they were in here and they gave him a 2 foot something on the other side because obviously it ran into the same problem the line was on an angle.
Mr. Rejman: Thank you, just needed some clarification on that. Any other comments? Motions?
Mr. Darrow: I would like to make a motion that we approve a 3 foot side yard variance for Thomas Giancola at 169 Van Anden Street for the purpose of constructing a roof along a side and front property line to cover existing concrete pad without protruding over the pad.
Mr. Hare: I second that.
VOTING IN FAVOR: Mr. Hare, Mr. Darrow, Mr. Temple, Mr. Westlake, Mr. Rejman
Mr. Rejman: Application approved. See Mr. Moore in the morning for a permit.
Mr. Giancola: Thank you.
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135 Perrine Street, R-1, area variance of 150 square feet for 900 square foot garage, Lee and Christine Cordway.
Mr. Rejman: 135 Perrine Street, are you here? Hi, state your name for the record please.
Mrs. Cordway: My name is Christine Cordway and this is my husband, Lee Cordway, 135 Perrine Street.
Mr. Rejman: What would you like to do there?
Mrs. Cordway: We would like to build a garage, 30 x 30 foot on our lot.
Mr. Rejman: So you need a variance?
Mrs. Cordway: That’s right.
Mr. Rejman: Why did you decide on a garage 30 x 30?
Mrs. Cordway: We would like to store our vehicles and our personal property.
Mr. Rejman: I see.
Mrs. Cordway: We have a lot of personal property
Mr. Cordway: Lawn mower, snowmobile.
Mr. Rejman: You’re too young for a lot of personal property.
Mrs. Cordway: We would prefer in storage rather than just scattered being an eyesore throughout the yard. Plus the fact that we don’t really want to our property out – it could get stolen. Plus it is better if it is in storage from the elements.
Mr. Rejman: You have gone through your neighborhood and collected a few signatures from some neighbors.
Mrs. Cordway: The ones directly connected.
Mr. Rejman: Questions from the board? Is there anyone here wishing to speak for or against this application? Yes, come forward and state your name please.
Mr. Pesarchick: James Pesarchick. I sold the property to the Cordways so that they might extend a garage purposely for their convenience, not to make a business or big pole barn. I owned that property for 30 years. They approached to buy it because they do need a garage. Whether they need the big one is not for me to say, it is what the City ordinance allows. I sold it to them with the idea that they will build a garage. They said they need a 5 foot extension, to me what is 5 feet, added to the building it is 150 feet. I understand that 30 x 25 is the max for a garage?
Mr. Rejman: 750 square feet.
Mr. Pesarchick: So they wanted 5 feet extension so that it makes it 30 x 30 it is not 5 feet, to me that is 150 feet. Whether you approve it or not, it is up to you people, but I sold it to them in good faith so that they could have a garage. Take it from there.
Mr. Rejman: Thank you.
Mr. Pesarchick: I am not against the garage, I sold them the property. Thank you.
Mr. Rejman: Anyone else wishing to speak for or against the application?
Mr. Temple: Mr. Chairman.
Mr. Rejman: Yes?
Mr. Temple: Is it possible I could ask the last witness a question?
Mr. Rejman: Yes, could you come back please, we have a question from a board member.
Mr. Temple: I just want to be clear if I might, you said your last words were I am not against the garage. Are you against the garage 5 foot larger and if it was 5 foot smaller you are not against it or you are not against it in any circumstances? Just want to be clear on what you are saying.
Mr. Pesarchick: Let’s go back to the first meeting, they tabled it. Their request was the extension and they wanted a use variance, to operate a construction business. They dropped that.
Mr. Temple: Is it your opinion that that particular use variance the use question is still a question as to what this garage might be used for?
Mr. Pesarchick: You can’t just say you have to store property, she has a chairs, lawn chairs and everything like that, but if you have a big barn down there what’s to say what they are going to store in that. I would say you have to put it down in black and white if you are going to give them a variance.
Mr. Temple: Are you against the larger garage? I am not trying to put words in your mouth
Mr. Pesarchick: I am not for or against it, the only thing, if they hadn’t come up with the construction bit the first time around
Mr. Rejman: That is not an issue any more.
Mr. Pesarchick: I know it isn’t. If they can assure me and the neighbors it is strictly for private property so be it.
Mr. Temple: Thank you.
Mr. Rejman: Thank you. There is another gentleman. Step forward.
Mr. Brazee: My name is James Brazee, I live in the neighborhood at 154 Perrine Street. I am against a garage this size being put up 30 foot x 30 foot, very excessive for storing personal property. Get a large size like that the next thing the roof size has got to go up higher the whole thing will be a monstrosity in the neighborhood. There is a school on the corner, very nice homes in the area. I know you have a petition, my name is probably on it too because when they went around with the petition it was to put up a garage, every body thought afterwards the size of the garage. Also last meeting a use variance for the construction business. Tonight we are just discussing the variance, but two weeks from now or next meeting it could up with land use variance
also to turn this into a construction business. End up a construction business without going through the proper channels to begin with.
Mr. Rejman: Is this the petition that you signed?
Mr. Brazee: Yes.
Mr. Rejman: Alright. You just said you weren’t aware of the area variance however the petition clearly states: “We the neighbors of Chrissy and Lee Cordway know they are applying of a area variance for their new garage and we are supportive of the project”. So why would you sign something and then stand before us and say you didn’t understand that?
Mr. Brazee: Why I stand before you and say I didn’t understand it, if I signed it with the understanding that it was going to be a garage.
Mr. Rejman: It is a garage.
Mr. Brazee: It is excessive, it doesn’t even fit
Mr. Rejman: I am very confused, why would you sign this
Mr. Brazee: It was brought up that they wanted to put a garage and they needed
Mr. Rejman: An area variance
Mr. Brazee: Yes
Mr. Rejman: And that is what they asked you for and you said ok and you signed this.
Mr. Brazee: Never stated they wanted to put up a construction business
Mr. Rejman: Wait, wait, two different things.
Mr. Brazee: What does it say on that paper as to size of the garage?
Mr. Rejman: It doesn’t. You signed a blank check. You signed a blank check sir.
Mr. Brazee: I stand before you now to voice my opposition
Mr. Rejman: Alright, we understand that.
Mr. Brazee: Is that allowed to voice opposition even though my signature is on that?
Mr. Rejman: I suppose, it would have been nicer if you hadn’t signed it in the first place. Yes. Thank you. Anyone else wishing to speak for or against the application? Hearing none we will come back. Questions from the board, comments from the board? I think there is still some resentment over the use variance and that is clouding some issues here.
Mr. Moore: I got a few comments on that. They came in trying to do everything in the right way. She came in and stated that her husband does some remodeling, has a ladder and a wheelbarrow and then it was even my fault I told her to put in for a use variance if she is wanting a business. So basically what a lot of people do they work a full time job and go out do part time. But he is not going to be running a business out of the garage. I went down there, I have seen it, all it is they have a lot of equipment and all they wanted was a larger garage. They have a huge lot there now, this should fit in. Can only be 15 foot high and I don’t personally have a problem with it. There was a lot of neighborhood opposition because they thought they were going to
run a business.
Mr. Rejman: A construction business.
Mr. Moore: But they are not.
Mr. Rejman: What sort of equipment did you see there that made you consider
Mr. Moore: A ladder, snowmobile, four wheelers, bunch of stuff in the yard and we were in the house, the whole basement, bicycles and stuff, she runs a day care so she can’t store this stuff in the basement. They do need a garage.
Mr. Rejman: Thank you for some clarification.
Mr. Moore: I don’t see many neighbors here. There was a lot of opposition to that use variance which they definitely are not going to do.
Mr. Rejman: Questions, comments, concerns, motions from the board.
Mr. Temple: I am just thinking about facial, 5 feet is not a huge amount on the other hand I am thinking about the size of the car and it would seem like, depending on what size car you have you can have one behind the other
Mr. Darrow: 24 x 24 is the standard, two bay garage, so that extra 5 foot is for storage area, standard garage package is 24 x 24 for a two car garage.
Mr. Rejman: You probably couldn’t even tell the difference because of the size of the lot. The lot can easily accommodate it.
Mr. Temple: Well I think with the comments that have been made here tonight on the record and so forth the idea of that being used for some kind of business is foreclosed on, if anyone was to proceed in that direction after all the comments that have been made here tonight, I think the neighbors have ample opportunity to resurrect this
Mr. Darrow: I am sure Code Enforcement would hear about it.
Mr. Temple: That is what I am saying.
Mr. Rejman: Would you like to make a motion?
Mr. Temple: I would like to make a motion that Lee and Christine Cordway be granted an area variance of 150 square feet for the purpose of constructing an unattached garage 30 feet x 30 feet.
Mr. Darrow: I’ll second that.
VOTING IN FAVOR: Mr. Hare, Mr. Darrow, Mr. Temple, Mr. Westlake, Mr. Rejman
Mr. Rejman: Application has been approved.
Mrs. Cordway: Thank you.
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91 Cottage Street, R-1, area variance of 7 feet for a pool to be located 3 feet from side property line and house. David Harris.
Mr. Rejman: 91 Cottage Street, are you here please?
Ms. Kopper: Hi, I am Rebecca Kopper, I am here on behalf of David Harris, who is working tonight.
Mr. Rejman: Tell us why you are here.
Ms. Kopper: I am here for a 7 foot variance to put in a pool, in the back yard.
Mr. Rejman: Seems to be a standard pool request.
Mr. Hare: On another skinny lot.
Mr. Rejman: On another skinny lot in Auburn. They didn’t have pools in 1820’s. Anyone here wishing to speak for or against the application? Let’s get that out of the way first. We do have a letter from Bill Jacobs a member of the Council and he requested that be read into the minutes. Would you read that please (to Corporation Counsel)
Ms. Hussey: This letter is addressed to Mr. Jim Moore, Code Enforcement Division, Memorial City Hall, 24 South Street, Auburn, New York. “Dear Jim, In regards to your NOTICE OF PUBLIC HEARING mailed July 28, 2002, I wish to make the following statement to you concerning the request for a variance at 91 Cottage Street.
Mr. David Harris moved into this address a few years ago. Mr. Harris is requesting a variance for a pool to be located approximately 3 feet from the west property line. Having lived at 95 Cottage for 43 years, I am very familiar with this parcel of land. Ever since Mr. Harris has moved into 91 Cottage, he has been improving this structure. He has transformed a run down dwelling into one of the nicer houses on Cottage Street. Where they plan to install the pool will not diminish the neighbors yard to the west. I have spoken to that neighbor, and he has no problem with this variance.
I am very glad to see Mr. Harris enhancing their property, by doing so they are enhancing the neighborhood. The City of Auburn should encourage this, as it will effect the aesthetic beauty of our entire City. You know as well as I do, our City could use a little cleaning up.
I cannot be at the public hearing held by the City of Auburn Zoning Board of Appeals on Monday, July 29, 2002. I am asking that you have this letter read into the minutes of the meeting that I am in full approval of this pool variance as requested. If there is anything else you are requesting from me, please ask.
Thank you for your time, I remain
Sincerely, William F. Jacobs, Member of Council.”
Mr. Rejman: Thank you. Questions from the Board? Yes?
Mr. Temple: Looking at the drawing, only place I am seeing exactly what the size of the pool, it seems to be a rectangle, if that true?
Ms. Kopper: The pool is oval.
Mr. Temple: Oval.
Ms. Kopper: 15 x 25.
Mr. Temple: 15 x 25 so that means at the widest point it is 15 feet and the drawing such as it is shows it located to one side more than in the center. Is there some reason that the pool couldn’t be situated in some way different that would allow a larger amount of set backs?
Ms. Kopper: Reason we are asking for that is because we have a shared driveway and we have one car parked on the side that you see the fence here in the yard, want to put it over here.
Mr. Darrow: Even if we moved it to the side it would never meet the requirements.
Mr. Temple: I was just looking to minimize it if possible, I understand. Thank you.
Ms. Kopper: Thank you.
Mr. Rejman: Last call anyone wishing to speak for or against? Ok, we will close the public portion. Have a seat.
Mr. Darrow: I think this is another situation, perfectly exemplifies the fact that narrow lots in the City and what happen. We are actually penalizes the lot owner for the narrow lot.
Mr. Rejman: Ok, having said that.
Mr. Darrow: I would like to make a motion that we grant David Harris of 91 Cottage Street a 7 foot side yard variance for the purpose of erecting a 15 foot x 25 foot oval swimming pool 3 feet off the property line.
Mr. Hare: I’ll second that.
VOTING IN FAVOR: Mr. Hare, Mr. Darrow, Mr. Temple, Mr. Westlake, Mr. Rejman
Mr. Rejman: Application has been approved.
Ms. Kopper: Thank you.
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129 Throop Avenue, R-1, area variance of 90 square feet for 12 foot x 20 foot shed. Dominic and Arlene DeFabio.
Mr. Rejman: 129 Throop Avenue, are you here please? State your name for the record please.
Mr. DeFabio: Dominic DeFabio and Arlene DeFabio.
Mr. Rejman: Ok, Dominic, tell us what you would like to do there.
Mr. DeFabio: We want to put up a 12 x 20 foot shed.
Mr. Rejman: Why did you happen to choose 12 x 20?
Mr. DeFabio: It is bigger, she says I need every bit of space I can get, so we decided maybe 12 x 20.
Mr. Rejman: She is trying to push you out of the house after all these years, is that it?
Mr. DeFabio: She says you got too much stuff in your life, you got to hide it now.
Mr. Rejman: Ok, it is always a concern why people need certain size sheds and it is always up to the individual I suppose.
Mr. DeFabio: I have a trailer, I have a golf cart, I am going to get a riding mower. I will need it.
Mr. Rejman: Just be careful she doesn’t put a cot out there.
Mr. DeFabio: That can happen very easily, after 51 years, it still can happen. (Everyone laughs)
Mr. Rejman: Is there anyone here wishing to speak for or against the application? None, come back to the board. Any questions from the board on this? 90 square foot variance. We will close the public portion, thank you very much. Have a seat.
Mr. DeFabio: Thank you.
Mr. Rejman: It is one of those, he wants a 12 x 20 and she wants a 12 x 20.
Mr. Hare: The way that house is situated they have a lot shrubbery around that house, I don’t even think it will be seen back where they plan on putting it.
Mr. Rejman: No you can’t . Good point. Would you like to make a motion?
Mr. Hare: I would like to make a motion that we grant Dominic and Arlene DeFabio of 129 Throop Avenue an area variance of 90 square feet to erect a 12 foot x 20 foot shed.
Mr. Westlake: I’ll second that.
VOTING IN FAVOR: Mr. Hare, Mr. Darrow, Mr. Temple, Mr. Westlake, Mr. Rejman
Mr. Rejman: Application has been approved. Good luck with the shed.
Mr. DeFabio: Thank you.
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21 Sherman Street, R-1, use variance for two units. Non-conformity lost due to vacancy. Michael Hardesty and Peter Shaffer.
Mr. Rejman: Just to clear up a few things. We have just been through area variances. Area variances are very generic, just what you heard. I need a shed 90 square feet, those are fairly easy to decide. What is coming before us now, we still have an area yard variance that will be fairly generic. Use variances are a little different.
Mr. Darrow: Can we take a five minute recess?
Mr. Rejman: Yes, we will recess. Ok, we are back. 21 Sherman Street, are you here please?
Mr. Shaffer: Yes.
Mr. Rejman: State your name for the record please.
Mr. Shaffer: The name is Pete Shaffer and I am the owner of 21 Sherman Street.
Mr. Rejman: Ok, Pete what seems to be the problem.
Mr. Shaffer: The situation – the status is this is a non-conforming – it is a two family dwelling in a single family zoned area, I believe that is correct and specifically for re-financing, my partner and I purchased this property 8 months ago and we did a lot of work on it and we are looking to get some re-financing now. The bank that we approached they do not want to do any re-financing on it as it is a non-conforming two family and that is the issue that is before you now.
Mr. Rejman: Mr. Moore it says non-conforming use lost due to vacancy. How long ago did that happen?
Mr. Moore: It wasn’t.
Mr. Rejman: It wasn’t?
Mr. Moore: It wasn’t on our condemned list. It is a two unit, it has always been a two unit. They didn’t lose it. If the place burns down, we get mortgage companies calling us all the time, if the place burns down, they want to know if it could be rebuilt as a two family and as a non-conforming use it can not. With a use variance, use variance runs with the land, if it burns down then they could rebuild it as a two unit.
Mr. Shaffer: That was the issue brought to us.
Mr. Rejman: I am confused. If it did not lose its non-conformity, then it means it is a two family dwelling. If it is a two family dwelling there is no need for the applicant to be here.
Mr. Darrow: Because the mortgage company won’t give him a mortgage unless he has a use variance on it that runs with the land.
Mr. Rejman: He already has got it.
Mr. Moore: No. If it were destroyed by fire
Mr. Darrow: Pre-existing non-conforming
Mr. Rejman: There is also another issue here. It is a HUD home. That means the Federal government misrepresented this home as a two family when the sold it. I have been in real estate a long time, that is exactly what they do. HUD doesn’t care, they are the Federal government.
Mr. Moore: But it is a two family house.
Mr. Rejman: That is right. It is a legal non-conforming use. Why does he have to come here this evening?
Mr. Moore: Better financing.
Ms. Hussey: Mortgage company wants better assurance it will not loose its non-conforming use.
Mr. Moore: Look in your zoning section damage to construction it cannot be built again unless it conforms with the area zoned.
Mr. Rejman: Ok, I got it.
Mr. Temple: According to the application, it speaks about being purchased as a HUD home and it says it was vacant for over a year and was in disrepair. Now at that time any prior non-conforming use would have been extinguished because of the one year vacancy, so based upon that maybe there is a illegal use of it today and we can look upon this as a proper request at this time.
Mr. Moore: No. This house was built as a two unit that is why we let him, if the house is built as a two unit, which this technically was, even though he should have lost it, if it was built as a two unit we can’t take it away from him.
Mr. Temple: Eight months ago, if that is the proper time frame, the City had a moratorium on conversions. It was passed by Council and effective at that time so you can’t
Mr. Moore: This wasn’t a conversion, it was built as a two unit.
Mr. Temple: Any thing that is pre-existing non-conforming which has been extinguished is deemed to be a conversion if you wish to re-establish rights to it.
Mr. Moore: No. It was built as a two unit.
Mr. Darrow: It only applies if it wasn’t built as a two unit, a single family and then converted to a two unit.
Mr. Temple: My memory recalls a case here not too long ago, perhaps a year ago, where a house was built as a two family and the person had to go back over a hundred years to reflect the occupants and how it was built and who built it, more than a hundred years of property title research and we were called upon at that time to grant a variance and it wasn’t given automatically. We were asked for a use variance and in the interim period there was a moratorium by the City on such things. I objected to that moratorium at the time it was done because I don’t think it reflects the rights of property owners should have to property. All in all let’s do things the same way in all occasions. I think we are taking a different route on this one than what we have in the past. I can remember a number of these HUD homes in the past the people come to us and said I didn’t know, this and that and it was really built as a two family house and we were called upon to give them a use variance to
reinstate
Mr. Rejman: There is no question that HUD puts us in a tight situation.
Mr. Moore: It was definitely built as a two unit.
Mr. Darrow: I think that is what is the difference, I think I know the case you are talking about the question was whether or not that was actually built as a two unit or converted into a two unit. But on this one with Mr. Moore’s experience, I would have to trust that he is able to recognize this house as being distinctively built as a two unit.
Mr. Temple: I don’t quarrel with the fact that it was built distinctively as a two unit
Mr. Moore: Yours was built as a two unit
Mr. Temple: Where does it say in our regulations that the house that is built originally as a two unit versus one that was converted sometime later legally, that those two houses should be viewed differently. I don’t think the law calls for a different viewing. I think that in any case where there is occupancy lost that the pre-existing non-conforming use is extinguished. I am saying and I am going to ask counsel for an opinion on this.
Ms. Hussey: Let me look at the Code I believe what you just stated that an existing non-conforming
Mr. Temple: A pre-existing non-conforming use – is it extinguished with a loss of occupancy of six months or more? There is a section of the law that provides that. I am not saying I am against the use, I am trying to say that that brings us to the question of giving this man a variance in a legal kind of way.
Ms. Hussey: If it was built as a conforming structure then it is not conforming so it doesn’t follow that conversion of a non-conforming structure. Is the question whether the moratorium applies to conforming and non-conforming uses?
Mr. Temple: The moratorium is a moot question, the moratorium has been lifted. The question is does a non-conforming use get extinguished due to a vacancy that is the real question.
Mr. Moore: No, the same way as having two houses on one lot, same thing. So ok, you say you have to tear that house down. No, it was two distinctive parts and we can see it.
Mr. Temple: I am not debating that.
Mr. Moore: All that is moot anyway. If that burns down, what he is here for?
Mr. Temple: I understand
Mr. Moore: If that burned down he could not rebuild it as a two separate apartments.
Mr. Temple: I understand that.
Mr. Moore: That is what he is asking for.
Mr. Temple: And I am not saying that I object to this particular variance, I am trying to bring us to a point where we can pass a variance of this sort, I don’t recall us ever being asked to pass a variance for something that didn’t need one.
Mr. Rejman: I think it is a banking issue
Mr. Darrow: I can’t see why we can’t pass a variance that is not needed. It is basically foresight right now that he is applying for the variance in case something should happen. If something should happen to the house
Mr. Rejman: In the event of a fire, I would like to be able to rebuild the two family house on this location and we say yes or no.
Mr. Temple: I think that this is the first time occasion for this type variance, like a lot of other things that we do, we sent a trend and then all of a sudden we be having many more of these kind of applications coming to us from all kinds of people.
Mr. Rejman: Is it because of the Certificate of Occupancy that is probably dragging this out.
Mr. Temple: He has a C of O apparently.
Mr. Rejman: The bank hasn’t accepted that?
Mr. Shaffer: No. Because of the non-conforming status.
Mr. Darrow: It is an R-1 instead of R-2.
Mr. Shaffer: Exactly.
Mr. Temple: We are being asked to do something in pre-emptive kind of a way. We are going to pre-empt the fact that he going to have a fire and he won’t be able to rebuild
Mr. Darrow: It can be destroyed in a number of ways.
Mr. Temple: And some decision would be made that he couldn’t rebuild. I think the only reason he couldn’t rebuild is if he didn’t start the reconstruction within six months. I think if he started within six months that he would still have a pre-existing non-conforming
Mr. Moore: If it is destroyed 50% it is gone.
Mr. Temple: It is gone, no matter how quickly you start to rebuild.
Mr. Moore: That is right.
Mr. Rejman: Now that all that is cleared up.
Mr. Darrow: Has anyone spoken for or against?
Mr. Rejman: Is there anyone here wishing to speak for or against the application? No. Coming back. Would counsel care to draft the motion? Take a moment.
Mr. Darrow: Because a use variance goes wit the property we just grant a use variance to 21 Sherman Street, to the property, we give a use variance to become a legitimate R-2 for the purpose of having a two family dwelling on it. Therefore the variance goes with the property.
Mr. Rejman: Has he met all the contingencies required for a use variance?
Mr. Temple: No.
Mr. Darrow: What are you referring to all the contingencies?
Mr. Rejman: Economic hardship
Mr. Darrow: In my opinion they speak for themselves is the fact that it was originally built at either a time when we didn’t have the proper zoning ordinance on Sherman when it was built as a two family or at some time it was legally zoned a two family and the zoning was changed to R-1. One of those had to have happened for it to now become a non-conforming pre-existing use.
Mr. Rejman: Could we assume that the economic hardship is prove by the fact that the applicant is here and the
Mr. Darrow: And the bank won’t lend him the money without
Mr. Temple: No, I don’t believe that we can. I say that if at such a time as this house was destroyed and needed to rebuild that is the time it comes before the Zoning Board and gets a variance because of the hardship and then he can definitely show economic hardship, he can’t get a mortgage because his house isn’t being allowed to be built back to two family in an R-1 zone. That is the time to do it. I don’t think it is correct for us to do this unless he has already been extinguished. If he has already been extinguished that is what I want to bring us to, agree that maybe his rights may be already extinguished and I understand Mr. Moore’s point that is not the case.
Mr. Hare: But if the bank is dragging their feet on granting him any kind of a loan right now, wouldn’t that be showing some kind of economic hardship because he is kind of caught in a catch 22 situation. He has come here and told us about the problem with the bank
Mr. Rejman: This is a new area that we haven’t seen before.
Mr. Darrow: How do you feel about this Craig?
Mr. Westlake: I am just listening.
Mr. Darrow: I really would like your opinion. Do you have one?
Mr. Westlake: I don’t have one.
Mr. Darrow: You are going to need one when you vote.
Mr. Rejman: Counsel can you shed any light on this?
Ms. Hussey: The provision that applies is Section 305-86, Paragraph E, Subsection 1. In the event that the structure not complying with any permitted use and devoted in whole or part to a non-conforming use is damaged or destroyed by any means to the extent of more than 60% of the cost of replacement of the structure new, such structure shall not be restored unless such structure and the use thereof shall thereafter conform to all regulations of the zoning district in which it is located.
The issue is then in their considering extending financing needs assurances that their interest in the property is adequately insured and they also require they have an interest in the building that it is rebuilt as intended use or as the present use. So if this building is damaged by fire, the applicant is requesting and pleading the economic hardship lies in the fact that he can’t obtain financing to continue operation of this structure. Is that correct?
Mr. Shaffer: We put so much money into it we would like to refinance.
Mr. Rejman: Coming back to Mr. Temple’s point, wouldn’t it just be simpler to say “yes it did lose its non-conforming status due to vacancy”, start at square one, as we have done in the past, is that pretty much what you are saying?
Mr. Temple: That is just my point. I would ask Corporation Counsel in that 305 Section she just looked at, I believe there is another section that pertains to a vacancy as it relates to an undamaged property. Loss of a prior existing non-conforming use.
Mr. Moore: No. It says one year.
Mr. Temple: OK, we have an applicant that said it was vacant for a year. There you go.
Mr. Moore: It was built as a two unit, we cannot take that away. You proved it was two units.
Mr. Rejman: I think everyone is going in the same direction, it was built as a two-unit fine. It lost its non-conforming use, fine. It has economic hardship because he can’t get a mortgage on it, fine. We touched all the bases, now we need to do is say yes or no whether or not this can be a use variance.
Mr. Temple: That is basically my position, I am trying to make sure that we don’t get ourselves into a situation where we have all kinds of pre-empted requests before this board.
Mr. Westlake: You have a mortgage on the place right now, you just want to re-mortgage it.
Mr. Shaffer: No, we put all our cash into it.
Mr. Westlake: You paid with cash.
Mr. Rejman: That is Mr. Temple’s point. We can get 50 people here next month saying you know I want something in writing just in case it burns down and I have to rebuild. We don’t want to go there.
Mr. Moore: This is one special oddball.
Mr. Rejman: We want to keep it one special oddball and not have 50 or 60 of them.
Mr. Moore: I also want to mention that the applicant has bought a few properties around Auburn and he has done nothing but improve every one he has.
Mr. Rejman: Closing questions for the applicant?
Mr. Temple: I see an address Owego, is that your address?
Mr. Shaffer: That is Mike Hardesty’s, he filled out the application.
Mr. Temple: I see. And you reside?
Mr. Shaffer: I reside in Skaneateles.
Mr. Temple: As an absentee landlord you don’t live in this structure, do you?
Mr. Shaffer: No, I don’t.
Mr. Temple: As an absentee landlord are you aware of any complaints by neighbors that relates to your property here on Sherman Street?
Mr. Shaffer: No, in fact when we took it over, we have done a nice job, it is a much improved building.
Mr. Temple: I don’t mean to make any accusations I am raising an issue that came before us just moments before the meeting started we were handed a paper Elaine Marco I can’t read the photo copy, but she resides somewhere on Sherman Street and she paints a little different picture as to the lawn maintenance usually unkept.
Mr. Shaffer: All these questions raised have nothing to do with us.
Mr. Temple: I don’t know about that.
Mr. Rejman: Where did this come from?
Mr. Moore: Somebody must have brought it in the office.
Mr. Shaffer: First I have heard.
Mr. Temple: He is here and I want to raise the question that came before me. You take care of the lawn yourself sir?
Mr. Shaffer: No, that is the tenant’s responsibility.
Mr. Temple: It says here Mike and Peter, I assume that is you, are aware of neighbors wanting quiet, responsible, considerate, mature neighbors and would appreciate that very much; but would like to see one family occupy the residence. Refers to too many cars in/out on a daily basis; cars parked in front where there is off street parking in back. Do you have off street parking on the lot sir?
Mr. Shaffer: Yes, there is a driveway with a garage, adequate parking. I can’t tell them where to park.
Mr. Temple: I just wanted to raise what I was handed. I don’t have any more questions. Thank you.
Mr. Rejman: I can appreciate this note that was given to us, but without any back up documentation where it came from, how it got here, I am not sure how much weight to put to this.
Mr. Shaffer: May I say something?
Mr. Rejman: Yes.
Mr. Shaffer: Mr. Leader has the house next door to us and I touch base, I drive by and the lawn care shocks me because I drive by often at least once a week, has not been an issued. We worked very hard, we want to do the right thing here with our property in Auburn. I touched base with Mr. Leader a few times and asked him how are things are there any issues, he said none and he lives next door.
Mr. Temple: Which Leader is that?
Mr. Shaffer: The Chiropractor.
Mr. Rejman: Very good. Set? We will close the public portion and discuss and come to an agreement tonight. Comments, concerns?
Mr. Darrow: I would like to make a motion that we grant a use variance to Michael Hardesty and Peter Shaffer for the property at 21 Sherman Street for the purpose of maintaining a two family dwelling on said lot.
Mr. Westlake: I’ll second that motion.
VOTING IN FAVOR: Mr. Hare, Mr. Darrow, Mr. Westlake, Mr. Rejman,
VOTING AGAINST: Mr. Temple – I don’t want to start opening Pandora’s box I am voting against this particular motion as it is structured.
Mr. Rejman: You have four affirmative votes. See Mr. Moore. Good luck with the project. Get whatever document you need for the bank.
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35 Aurelius Avenue, R-2, 10-foot side yard variance for subdivision of lot, John Andrews.
Mr. Rejman: 35 Aurelius Avenue, are you here please?
Mr. Andrews: John Andrews, owner and I need a variance to subdivide the lot.
Mr. Rejman: Mr. Moore, can you shed some light on this?
Mr. Moore: What it is - is he owns the property at 35 Aurelius Avenue, a large property and he is just subdividing one lot off to sell it. This is the part with the garage on it. Since the garage is situated the way it is, you can’t create a non-conforming lot. All this is they are going to subdivide it and sell it off. It falls short 20 feet on the south side. This is just so they can subdivide it. There is a business waiting to go in there coming into Auburn. Pretty straight forward.
Mr. Rejman: Anyone here wishing to speak for or against the application? Yes, step forward. State your name for the record.
Mr. Rollson: My name is Peter Rollson and together with my wife Audrey there we are the people who are proposing to buy this subdivided lot and hopefully start a new business in the Auburn area. We would very much appreciate it if you would see clear to grant this variance.
Mr. Rejman: OK, thank you very much. Just another one of crossing the “t’s” and doting the “I’s”. Questions from the board? Comments from the board?
Mr. Darrow: I would like to make a motion that we grant John Andrews for his property at 35 Aurelius Avenue a 10 foot side yard variance for the purpose of a subdivision of his lot at 35 Aurelius Avenue.
Mr. Hare: I’ll second that.
VOTING IN FAVOR: Mr. Hare, Mr. Darrow, Mr. Temple, Mr. Westlake, Mr. Rejman
Mr. Rejman: Application has been approved.
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80 Seymour Street, R-2, use variance for addition to business, Mark Kubarek, K & S Car Wash.
Mr. Rejman: 80 Seymour Street?
Mr. Kubarek: I am Mark Kubarek, I am president of K & S Car Wash which is located on the corner of North and Seymour Streets here in Auburn. I am here because the owner of 80 Seymour Street and myself have come to a sales contract agreement pending a zoning change.
I am basically here because of a zoning snafu. When Tony bought his house and the (could not hear name) bought their house in 1990 all those houses, the City garage, the playground all those houses coming back down to the corner were all zoned C-2. They probably didn’t realize it when they bought their houses that the zoning in that neighborhood was C-2. I own one of the houses that I had bought for an addition to my business. When I went to knock my business down I was informed that it was switched back to R-2, was it 1992 or 1993 Jim?
Mr. Moore: They took and rezoned two lots that are part of his business, rezoned into residential, they shouldn’t have done it.
Mr. Kubarek: The reason that I am here now is the expansion of my business. What we are considering for use right now with the building next door is half the house we will move our corporate offices into and the other half of the house will still be tenant rental at the present time. I am going to tell you point blank now that I am probably going to be back again because if the other properties become available I will be here for zoning conversion because I have my life savings invested in that corner and I am going to protect who my neighbors are. The one that is condemned right now I think it is 76 or 78, since the 911 changes the addresses have all changed there. But it is condemned right now it is in bank foreclosure, when I can go to the auction and bid on it, I am going
to be back here for a zoning change.
I keep a very nice place. I want to keep the neighborhood nice. I am here to have the property switched to C-2 basically that is why I am here.
Mr. Rejman: Can we do that?
Mr. Darrow: Commercial, use variance.
Mr. Rejman: We can give him a use variance, but we can’t change the zoning.
Mr. Darrow: Only Council can change zoning.
Mr. Rejman: You are asking for a use variance for corporate offices and one rental unit.
Mr. Kubarek: Yes, it will be one rental unit and corporate offices. Any other questions I can answer?
Mr. Rejman: Any questions from the board?
Mr. Temple: Do you foresee a time when this might be raised?
Mr. Kubarek: Yes. There is a lot of competition coming in the car wash business, not from locals. I just bought my last copy of Professional Carwash and Detail magazine and it is titled Wash Merge. Wal-Mart, Target, Big K, BJ’s Wholesale, I know the Wal-Mart here and the BJ’s both plan to put car washes in. The service is different than what I offer. So I am going to have to do something to compete with them. I think Wal-Mart sooner or later will be doing brain surgery, you will be going to Wal-Mart, they are going to have a neurosurgeon on staff.
Mr. Moore: That has been turned down so far.
Mr. Kubarek: Oh, they are going to reapply.
Mr. Westlake: My only concern is the traffic in that area already. If you go around there any time they are backed out onto Seymour Street, so that is my main concern.
Mr. Darrow: I have always been impressed how he manages to keep all the cars on his property, when it is a fall day and the sun is shinning, he has them wrapped around but it seems like nobody ever waits in the street.
Mr. Kubarek: It is a rare occasion to have them wait in the street, we are diligent about going out there and telling them you can’t wait in the road, go around the block. We are diligent about that and that is why we raised 78 Seymour Street. We had terrible traffic problems before but we alleviated that problem when we raised 78 Seymour Street, and in turn 80 Seymour could come into that we are going to relieve the traffic problem.
Mr. Westlake: More traffic then, more traffic in, if you are going to make your business bigger there is going to be more traffic.
Mr. Darrow: All he is doing here is putting in his office.
Mr. Kubarek: Right now all that is going to be there is the office. But that would have to go to Planning and site review if there is anything else going in there. If all three of those houses were down that is a pretty big lot. There are not that many cars in Auburn, I don’t think.
Mr. Temple: You would like to put these cars onto a greater parcel as he has more services.
Mr. Kubarek: Absolutely.
Mr. Rejman: So let’s ask this because there are some people who have been waiting an hour and 15 minutes.
Mr. Kubarek: Mr. Chairman, will I have a right to readdress the board to answer their questions?
Mr. Rejman: Final arguments and closing. Yes. Anyone here wishing to speak for or against this application. Yes.
Mr. Gasparro: My name is Anthony Gasparro, I live at 80 Seymour Street. I think it makes great sense to let Mark go ahead and do what he wants to do for the simple reason that he has been a great neighbor. He constantly upgrades his property, he puts money in, he puts flowers in, shrubbery, he takes care of everything he does there and I think he will take care of this property regardless of what he does with it. He keeps it clean and orderly. I think it is a good idea.
Mr. Rejman: Ok. Thank for your comments.
Mr. Gasparro: Thank you.
Mr. Rejman: Anyone else wishing to speak for or against this application? State your name for the record please.
Mr. Talbot: Bill Talbot. I have a question.
Mr. Rejman: OK, Bill, what is the question.
Mr. Talbot: The question is going to be raised will it need a variance.
Mr. Rejman: If the property were to be raised, have you heard what the intent is now?
Mr. Talbot: Yes.
Mr. Rejman: His office and one residence.
Mr. Talbot: Yes.
Mr. Rejman: If something changes
Mr. Talbot: Right
Mr. Rejman: He will have to come back before this board and you would have to be notified. You are a neighbor?
Mr. Talbot: Yes, yes.
Mr. Rejman: Then you would be notified again about a change.
Mr. Talbot: OK, thank you.
Mr. Temple: I have a question.
Mr. Rejman: Yes.
Mr. Temple: What uses are going to be granted for this request, what use is it?
Mr. Rejman: Going from residential to corporate office with one rental unit.
Mr. Temple: OK. So if he wants to raise the building, you are saying
Mr. Rejman: To turn it into a parking lot he can do that, but if he wants to build on it he has to come back.
Mr. Temple: I understand that.
Mr. Moore: This is going to be part of his business. The variance should be linked to his business with an apartment. That is what is in the application.
Mr. Temple: Business use for corporate headquarters.
Mr. Moore: Yes.
Mr. Rejman: Can I have the applicant back please. Your present business is the car wash and building that you bought and raised is that two separate parcels or is that one parcel?
Mr. Darrow: I believe there are four parcels there.
Mr. Kubarek: There are four parcels there.
Mr. Rejman: Is there any intent in the future to get together and just talk with counsel and everybody and put this under one parcel with one zoning.
Mr. Kubarek: We tried to do that before.
Mr. Moore: We tried to do it.
Mr. Kubarek: It seems to keep getting lost in Engineering the paperwork. I don’t know how much money I have spent so far. I tried to get my tax bills put together and I can’t do that.
Mr. Rejman: See that is what I am saying.
Mr. Kubarek: I can’t do. My lawyer has tried, Jim has tried to help me. It still hasn’t happened.
Mr. Moore: We tried to get the whole zone changed all the way to incorporate the Kidney Dialysis Center around the corner. Down on Seminary Street that is C-2, that whole block should be C-2.
Mr. Kubarek: The whole block use to be C-2
Mr. Darrow: It is like three houses in that whole area.
Mr. Kubarek: That is it. It use to be all commercial around the block and when the City chose to sell that property to the Dialysis Center they had to come down and change the zoning again.
Mr. Darrow: Use variance.
Mr. Moore: I hope one day to get it rezoned.
Mr. Rejman: That would be a good thing to move forward on. OK. Final questions for the applicant. None. OK, we will close the public portion. Thank you very much.
Mr. Temple: I just want to address Mr. Talbot
Mr. Rejman: Hold on, I am going to reopen, we have one more question for Mr. Talbot.
Mr. Talbot: The answer you gave me was yes we would have to have a meeting to entertain that request.
Mr. Rejman: If that parcel was to be put in a C-1, I am pretty sure you would be aware of that too, that has to come before City Council and you would be informed of that too.
Mr. Moore: There would be a Public Hearing.
Mr. Talbot: My question was if the house was to be raised it doesn’t need additional approval then, just to build.
Mr. Rejman: Right, he can tear it down and make a parking lot out of it but he can’t build on it.
Mr. Moore: He would have to go through site plan for any building that he would want to put up.
Mr. Talbot: Right.
Mr. Moore: All the neighbors within 200 feet would be notified and every time he comes to site plan you notice that he put in the landscaping
Mr. Talbot: I understand that but I don’t necessarily want a parking lot 6 feet from my house, that is my concern.
Mr. Rejman: Oh, I see.
Mr. Talbot: That is my only concern.
Mr. Rejman: Point well taken.
Mr. Temple: You have a concern but how we to interpret that is that something that you are going to say you are opposed to this project, you are not opposed to it, I just want to be clear on words.
Mr. Talbot: I am not opposed it, no.
Mr. Temple: Ok.
Mr. Rejman: Ok, we will close the public portion then. Comments, concerns, motions?
Mr. Darrow: Entertain a motion?
Mr. Rejman: Want to make sure there are no outstanding concerns. Seems like there are none.
Mr. Darrow: I would like to make a motion that we grant Mark Kubarek a use variance for the purpose of having an apartment and corporate offices of K & S Car Wash at 80 Seymour Street.
Mr. Temple: I’ll second that.
VOTING IN FAVOR: Mr. Hare, Mr. Darrow, Mr. Temple, Mr. Westlake, Mr. Rejman
Mr. Rejman: Application has been approved.
Mr. Kubarek: Thank you.
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