ZONING BOARD OF APPEALS
MONDAY, JUNE 2, 2003
Members Present: Mr. Gentile
Ms. Marteney
Mr. Darrow
Mr. Sincebaugh
Mr. Westlake
Ms. Aubin
Mr. Rejman
Staff Present: Ms. Hussey
Mr. Hicks
Mr. Lynch
Mr. Galvin
APPLICATIONS
APPROVED: 25 Liberty Street
95 E. Genesee Street
99 Franklin Street
78 Clymer Street
233-235 Janet Street
10 Tuxill Square
76 Mary Street
114 Walnut Street
33 N. Division Street
7 Seminary Street
APPLICATIONS
TABLED: 67 Perrine Street
78-80 Seymour Street
204 Genesee Street
Mr. Rejman: Good evening, everyone this is the Zoning Board of Appeals. Tonight we have 13 items on the agenda:
25 Liberty Street
95 E. Genesee Street
99 Franklin Street
78 Clymer Street
233-235 Janet Street
67 Perrine Street
10 Tuxill Square
76 Mary Street
114 Walnut Street
33 N. Division Street
7 Seminary Street
78-80 Seymour Street
204 Genesee Street
Hopefully we can move at a quick pace.
ZONING BOARD OF APPEALS
MONDAY, JUNE 2, 2003
25 Liberty Street, R-1A, area variance of 3’ side, 3’ rear, and 2’ distance from house for pool. Mr. and Mrs. Robert Montgomery.
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Mr. Rejman: 25 Liberty Street, are you here please. Yes. Step forward right up to the front. It is very easy. State your name for the record and tell us what the problem is.
Mrs. Montgomery: Tracey Montgomery.
Mr. Rejman: OK Tracey. Pull the mike closer.
Mrs. Montgomery: We would like to put in an above ground pool, we need a variance, a 3 foot variance for the side and 3 foot from the rear and 2 foot distance from the house to the pool.
Mr. Rejman: This is the time of year we tend to get many of these.
Mrs. Montgomery: It is a 15-foot above ground pool.
Mr. Rejman: Questions from the board?
Mr. Darrow: I don’t quite understand why the pool couldn’t just be moved 3 foot forward to the storage shed to alleviate that side yard variance.
Mrs. Montgomery: Because that is where our driveway is located.
Mr. Darrow: It is actually a paved driveway.
Mrs. Montgomery: Yes, a paved driveway that is why we need it on the other side.
Mr. Rejman: Good reason. Any questions from the board? Anyone wishing to speak for or against the application? Yes?
Mr. Bauso: I have a couple questions.
Mr. Rejman: Step forward. Before we start, could you state your name please and address.
Mr. Bauso: Phil Bauso, 23 Liberty Street, I would be the side yard variance that she is talking about.
Mr. Rejman: OK. What is the question?
Mr. Bauso: I didn’t have any opportunity to find out until just this evening about the size of the pool, whether it was above or inground. I am concerned about the line of water of accident or leakage and how far away it would be from my basement. I also have a vegetable garden there in the same area. She answered some of the questions. For the record I think I better state that it is a 15 foot circular and it will be adjacent to a deck that is on the back of the house. You will be 2 feet away from the deck not actually 2 feet from the house?
Mrs. Montgomery: From the house.
Mr. Bauso: From the house itself.
Mrs. Montgomery: Right at the end of the deck is where we are going to put it, there is nowhere else to put it.
Mr. Rejman: Did you see a copy of this (survey)?
Mr. Bauso: No.
Mr. Rejman: Pass this to him. Tracey this is a fairly accurate representation of how you are doing this?
Mrs. Montgomery: Yes.
Mr. Bauso: Probably 10 or 12 feet from the end of my house to the end of yours because the addition was put on there many years ago. I don’t know how this would be relevant to my garden if there is likelihood of leakage there.
Mrs. Montgomery: Your garden is behind this fence?
Mr. Bauso: Yes, I am right here (points to survey). Three reference points were given, you know, side, rear and this was to the house so I wasn’t sure what to expect.
Mr. Darrow: So you understand, she is not going to be 3 foot from the property lines, she is going to be 7 foot from the rear and side and 8 foot from the house, but that requires a variance of 3, 3 and 2 because she is required to be 10. So it is not going to be 3 foot from your property line, it is going to be 7 foot from your property line.
Mr. Bauso: Good, I didn’t realize that. I understand now, the normal requirement is 10
Mr. Rejman: Yes.
Mr. Darrow: And she can only come up with 7 so therefore she needs a variance of the remaining 3.
Mr. Bauso: I have no objection, I didn’t anticipate one either, but needed to clarify this.
Mr. Rejman: OK, good, thank you very much.
Mr. Bauso: Thank you.
Mr. Rejman: Final questions? Last call anyone wishing to speak for or against? OK, Tracey have a seat, we will close the public portion and discuss this.
Ms. Marteney: Smallest pool for the space available.
Mr. Rejman: Small lot syndrome.
Mr. Darrow: I would like to make a motion that we grant a 3 foot side yard, 3 foot rear yard and 2 foot rear house area variance for Mr. and Mrs. Robert Montgomery of 25 Liberty Street for the purpose of erecting a 15 foot round above ground swimming pool as plotted on attached survey.
Mr. Gentile: I’ll second that motion.
VOTING IN FAVOR: Mr. Gentile
Ms. Marteney
Mr. Darrow
Mr. Sincebaugh
Mr. Westlake
Ms. Aubin
Mr. Rejman
Mr. Rejman: Good luck with your pool.
ZONING BOARD OF APPEALS
MONDAY, JUNE 2, 2003
95 E. Genesee Street, R-1A, area variance for garage to be located 5’ from rear yard. Gloria and Mason Wristen.
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Mr. Rejman: 95 E. Genesee Street, are you here please?
Mrs.Wristen: Gloria Wristen.
Mr. Wristen: I am Mason Wristen.
Mrs. Wristen: 98 E. Genesee Street.
Mr. Rejman: And it looks like you need an area variance for a garage.
Mrs. Wristen: Correct.
Mr. Rejman: Tell us about the garage.
Mrs.Wristen: We would like to put up a 2-car garage after this winter especially and have some room above it for additional space for our family as we live on the second floor and have an office on the first floor.
Mr. Rejman: Looks like you need a 5-foot variance from the rear property line.
Mrs. Wristen: Right, it will go within 5 feet of the back yard, which affects just one property.
Mr. Rejman: OK.
Mr. Gentile: 20 foot variance.
Mr. Rejman: Placed 5 feet, 20-foot variance. Questions from the board?
Mr. Darrow: Is this a one story or two story?
Mrs. Wristen: Two story. We want to have like a living area above it also because our apartment is very small. As long as we are spending the money to build a garage.
Mr. Darrow: Is the height requirement in that area Mr. Hicks, 15 foot?
Mr. Hicks: Yes, it is. Except this is an attached garage.
Mr. Darrow: OK, thank you.
Mr. Rejman: And the depth of the lot we are dealing with 107 feet and 64 wide?
Mrs. Wristen: Yes, 175 x 64.
Mr. Rejman: Is there anyone wishing to speak for or against this application? OK, hearing none, come back. Questions from the board one last time.
Mr. Darrow: I was most curious if anyone was going to speak.
Mr. Rejman: Me too. Nobody against. Final comments? OK, we will close the public portion and discuss amongst ourselves. I guess that was the most important, no one spoke against.
Mr. Darrow: Well considering that it is attached for two story. The lot the way it lays out there on the corner, I mean, it really needs to be set back like they have got it with proper room in front. A lot of the older lots I mean the garages are sometimes not even 5 feet from the property lines.
Mr. Rejman: And you are dealing with a 64-foot depth. Motions?
Mr. Darrow: I would like to make a motion that we grant Mason and Gloria Wristen of 95 E. Genesee Street a 20 foot rear yard variance for the purpose of erecting a two story attached garage as per attached survey.
Mr. Westlake: I’ll second that motion.
VOTING IN FAVOR: Mr. Gentile
Mr. Darrow
Mr. Sincebaugh
Mr. Westlake
Ms. Aubin
Mr. Rejman
ABSTAINING: Ms. Marteney – I have a professional relationship.
Mr. Rejman: Application has been approved. Good luck with your garage.
ZONING BOARD OF APPEALS
MONDAY, JUNE 2, 2003
99 Franklin Street, R-1A, change legal status from 1 unit to 3, Harold Seibert.
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Mr. Rejman: 99 Franklin Street, are you here?
Mrs. Seibert: Jacqueline and Harold Seibert owners. We would like to turn it back to a 3 unit, which it has been since 1940 when my parents they bought it in 1939 and redid it. We would like it remain as that.
Mr. Rejman: Tell us a short history on this dwelling, it started out as a
Mrs. Seibert: It started out in 1880 sometime, it was a Civil War vet and he got a land grant and he had this built at that time for $6,000. My Mom and Dad bought it in 1939 it had been vacant for many years and when they bought it the porches were rotted, falling off, looked like Tobacco Road, from pictures I have seen, I was a little girl then. We lived in one room at a time and you would hear a thump and the ceilings were falling, plaster was falling off. They started doing the apartments first because they need some income to proceed with restoring the house and two apartments, my Mom’s Dad was carpenter and so they were done in the 1940’s and it has been like since ever since. We have had wonderful tenants and
everything
Mr. Rejman: It has been a 3 unit since then.
Mrs. Seibert: It has been a 3 unit since 1940, we have almost half an acre there, there is off street parking for 6 vehicles, they could add more if they needed them. It sets quite a ways back from the road. We have tried to maintain it, we have had vinyl siding on it since we have had it, we have put replacement windows in it, we put a new water service in, we have had the electrical updated and put our own sweat and tears in it to keep as good as it is and it is in excellent condition.
Mr. Rejman: How did it come about to loose the classification?
Mrs. Seibert: Because the City is the one that changed the classification. All permits were in pass back in the 40’s when they did all this.
Mr. Rejman: OK, talking just now.
Mrs. Seibert: Because it was vacant for six months. We are in process of, our tenants in the lower apartment were there for almost 30 years and after that we have updated, the dishwasher was shot, the stove top unit, it just needed all redoing again. We advertised it, we had it in real estate hands and in the late 1990’s and early 2000 we had a HUD house next to it, we got 103 boarded up, we have a house across the street boarded up, people would look and say we don’t like the neighborhood, we don’t feel safe here. So unfortunately we figured we would fix it up and then we had some young couple stop by saying they had been looking at the HUD home and figured it would be too much money to put into something to redo it and they would
like to buy it as is, so they would have an income from upper apartments and they would live in the lower apartment. These apartments are pristine. Our apartments upstairs have wood block countertops and built in cabinets. One of the apartments have a double door refrigerator and brand new stove and the other apartment has a stove and refrigerator. Our last tenant he was the one that tried to steal the ATM out of the Finger Lakes Mall and he left us with several hundred dollars worth of damage, he ruined some doors that are irreplaceable. We have tried to treat and keep it like when I lived there.
Mr. Rejman: Do you have a purchase offer contingent on the zoning?
Mrs. Seibert: We did at one point when one couple was going to sell theirs but that fell through because they couldn’t sell theirs. Now it is contingent on us getting this because if we don’t then nobody wants it. In this day and age no one has 10 or 12 children to put in the upstairs and this is a big home.
Mr. Westlake: I guess I am confused as to how you lost your 3 family.
Mr. Seibert: Six months you loose it
Mr. Westlake: You said the house has been vacant.
Mr. Seibert: Close to three years. I closed it down to remodel it, we tired to rent it, no opportunities to rent it, won’t rent it just to have someone destroy it.
Mrs. Seibert: Exactly after the last one.
Mr. Seibert: People came along and made us a offer on it, going to get married, they want to live downstairs and rent the upstairs out. It is an ideal situation.
Mr. Sincebaugh: So you have been working on it for 3 years?
Mrs. Seibert: We are still working on it. It is a work in progress, neither one of us has a lot of time.
Mr. Seibert: I am in business, so in my spare time.
Mrs. Seibert: I baby-sit my grandchildren. Like I said we have off street parking for at least 6 cars and probably more, if they would like to do it.
Mr. Gentile: Is the barn, is that part of the property?
Mrs. Seibert: This is being used by Seibert Plumbing right now, it was Masters Plumbing before we took it over from my Dad.
Mr. Seibert: Plumbing business for over 50 years back there. That will go with the property.
Mrs. Seibert: That will go with the property and we will find some place to rent.
Mr. Rejman: OK, anyone here wishing to speak for or against the application?
Mr. Brandstetter: My name is Kent Brandstetter, I live at 106 Franklin Street, which is across the street from Mr. & Mrs. Seibert’s property. I would like to speak for Mr. Seibert but I have a concern. As Mr. Seibert attested to he has been an outstanding property owner, he has been an asset to the entire street and community. He has kept the home extremely well and as Mrs. Seibert stated it is in pristine condition. Both of them and their ownership of that property has been phenomenal.
The concern that I have is, I understand Mr. and Mrs. Seibert’s point about the burden of not having any income from this property and the extent of all the bills and taxes that are incurred and I don’t think it is very fair of them to not be able to gain some income from the property in some way or another.
I have live on Franklin Street for 40 years, 15 years at the residence I am at and the rest of my life I spent two blocks down the street at my parents’ home. I have seen a lot of changes on this street in 40 years. I feel the street is just becoming an opportunity to change and turn around. First of all you had a lot of properties that were rented out to college students, it was a great way for some landlords to make money. Two of those properties, well actually one is still closed down 103 and it has been nothing but an eyesore for the past 15 years. The one adjacent to my property 102 is another absentee landlord who could care less even if the grass cut.
We have seen the house that is next to Harold’s a new owner came in the property had to revert back to a single family, he has taken on that challenge of remodeling. I see a big turn around, of some of the economic conditions of the homes around us. There is another one up the street from me that has been purchased, been remodeled and is being lived in by a single family. It is tough situation. I think my concern is that I know that Harold maintains control of the property, I don’t think I wouldn’t have any concerns at all, he has been outstanding neighbor. My concern is if the property is sold and it is certainly not going to be taken care of as well as the care that Harold has and be as good a neighbor as Harold has if they are looking at the property as
income. I feel that Harold has a right to make some money off of his land, his property, but my only concern is for the rest us that the property doesn’t turn into another eyesore.
We have a little economic turn around in the block that I am living in and I am just worried that may not continue to be so if another owner acquires the property.
Mrs. Seibert: May I speak?
Mr. Rejman: Yes, go ahead.
Mrs. Seibert: 101 Franklin Street has always been single. It has been anything but, it has been a rooming house, a student house and God knows what else, in fact, they had the football some football players from Community College there and that was another reason that we could not rent out apartment, because of the problems with those football players – all day and all night.
Mr. Rejman: I understand the concerns here, it is just starting to come around.
Mr. Siebert: Another apartment house just the other side of him has been sold, Kerstetter’s, and nobody knows what is going to happen to that one. It has six or seven apartments.
Mr. Brandstetter: Just again, in support of him. Every time if the tenant was a problem Harold took care of it, he didn’t put up with it and it made him a very valuable neighbor, he has keep the property immaculate. Again my concern is Harold has always done the right thing, I am just worried that the next guy is not going to be as conscientious as Mr. and Mrs. Seibert have been for so many years.
Mrs. Seibert: I was told that whoever sees these apartments and there have been people through these and we have been told that our apartments look like New York City lofts only cheaper and they are in fantastic shape. One apartment has all hardwood floors the other has wall to wall carpeting. The whole house has cast iron baseboard radiation heat. This is not a shabby place and I am sure whoever gets this certainly would not
Mr. Rejman: Would attract a better clientele
Mrs. Seibert: Yes, exactly that is what we are looking for. I refuse to rent to some of the trash that is out there and that is all that there is to it because I do not want my family home destroyed.
Mr. Brandstetter: It may even come to an issue that certain out of debate a request for a variance because of the house has been vacant for so long. Just a matter of a legal issue. I am in support of Harold, they have been an outstanding neighbor.
Mr. Rejman: Alright, let’s move along. Thank you very much.
Mr. Gentile: May I ask a question?
Mr. Rejman: Yes, you may.
Mr. Gentile: Are you for or against this request?
Mr. Brandstetter: I think he has the right to have an opportunity to make income from this property. I am going to be there a long time, I own my home and I am going to stay there for a very long time. I have already been there a long time. I just don’t want to see it go down the hill because it is not in his hands. That is my concern.
Mrs. Seibert: We are getting along in years.
Mr. Rejman: I know.
Mr. Brandstetter: I am in support of giving him an opportunity, I have a concern that the next property owner is not going to take care of the property as well as Harold has.
Mr. Rejman: OK. Thank you.
Mrs. Seibert: We are getting along in years and my Mom is still alive at 95 and still in her own house in Florida, so I don’t know what is going to happen day to day. God bless that everything has been fine so far. But you know, we have been there, done this.
Mr. Rejman: Questions from the board? Because this is a use variance there is an economic hardship issue here dollars and cents. In the event that the application is turned down, could you talk about economic hardship in dollar and cents fashion?
Mrs. Seibert: Yes, it would be worth nothing if we can’t see it and we have been offered $85,000 for it, as is, as is, as I said what would anyone do with the way it has been changed
Mr. Rejman: If someone went in and had all the money in the world, went in there and reverted it back to a single family, how many bedroom would be upstairs?
Mrs. Seibert: Five upstairs and three down.
Mr. Seibert: Eight bedrooms.
Mr. Rejman: Eight-bedroom house?
Mrs. Seibert: Yes.
Mr. Rejman: Would be a little difficult to find someone to buy that.
Mrs. Seibert: They would be walking from room to room because there is no hallway left upstairs, like it was years and years ago, where you would go up through a hallway and all the bedrooms were off of it because there were five bedrooms up there.
Mr. Darrow: The integrity of the home is no longer intact.
Mrs. Seibert: No that is right.
Mr. Rejman: I would seem to be a hardship selling it.
Ms. Marteney: Only people interested are those that approached them about it if it were three units.
Mr. Darrow: And converting it back just the mere cost of redoing the upstairs so that you are not traveling through room, through room, through room to get to a room where everything is cordoned off with hallways again. There is also another expense that has to be taken into consideration besides not having the value that it does as a three unit, there is also money out of the pocket to revert it back to a single unit.
Mr. Sincebaugh: You are only going to get so much for that house in that area, I don’t care how much you put into it.
Mr. Westlake: I have a question, if we were to grant this variance tonight and they didn’t in six months sell it or whatever, would that drop off again?
Mr. Rejman: I was thinking the same thing. We are going to that after. Final questions from the board? Anyone wishing to speak for or against? Last call, none. We will close the public portion and discuss amongst ourselves. Brian help us on this, if we say yes and a year from now the house isn’t sold, right back with the same situation.
Ms. Hussey: If the house remains vacant, you are grant the variance tonight and it remains vacant for another six months, they will loose the variance.
Mr. Rejman: Just so the board knows, what determines that it is vacant?
Mr. Gentile: The one apartment, does that count?
Mr. Rejman: Is it the utilities, utilities are turned off?
Mr. Hicks: We had it listed as a single family.
Mr. Rejman: How did you know it was vacant?
Mr. Hicks: I am not sure, I believe it has been vacant for 3 years.
Mr. Darrow: So you are looking that they have at least one apartment rented?
Mr. Rejman: No, I am saying we can be looking at this in seven months from now.
Mr. Darrow: Yes, if they don’t rent them. All three have to be occupied.
Ms. Hussey: Let me read the relevant portion of City Code, Section 305.14(d)(3) – Unless other specified by the Board of Appeals, a decision on any variance shall expire if the applicant fails to obtain any necessary building permit or comply with the conditions of such permit within six (6) months from the date of authorization thereof. Should the six (6) months period lapse, the Code Enforcement Officer shall be empowered to extend the variance for one additional six (6) month period upon making a determination that no building and/or Zoning permit has been issued or requested that have or would result in a substantial change in the character of the neighborhood. When such permits have been requested or issued the Officer shall refer
the same to the Zoning Board of Appeals and refer the matter of extension to the Zoning Board of Appeals for consideration and disposition.
Mr. Rejman: OK.
Mr. Darrow: Started out with the key word there.
Mr. Rejman: The other item we need to touch on is will it change the character of the neighborhood in any way.
Mr. Gentile: No there are many multiple units in that area.
Mr. Rejman: Does that answer your question?
Mr. Westlake: Yes, it answered my question.
Mr. Rejman: And I understand the neighbor’s concern, we can’t control the new owner. I don’t think it will be used as a
Ms. Marteney: Not a flophouse for better term.
Mr. Rejman: I think it will attract better clientele.
Mr. Darrow: Owner occupied, owners living in the first floor dwelling. Odds are fairly certain that he is going to want respectable people above him, he or she.
Ms. Marteney: They can rent it out to anybody they want.
Mr. Darrow: Double-edged sword, it may not be owner occupied. I have a question for Mr. Seibert.
Mr. Rejman: Mr. Seibert, recall for a question please.
Mr. Darrow: Mr. Seibert is it your intention if this variance is granted to rent until a sale comes or is it your intention just to prepare for sale and then hopefully within the next six to twelve months you can sell it.
Mr. Seibert: I have a young couple interested in it. They are going to be married.
Mr. Gentile: You have an offer contingent upon getting this variance?
Mr. Seibert: Yes.
Mrs. Seibert: That is right.
Mr. Seibert: I haven’t had it advertised, these people came to me.
Mr. Darrow: Thank you Mr. Seibert. My initial feeling is that if we go ahead and grant it and there is the six-month and if they are not able to dispose of the house in that six months, it is in Mr. Hicks’ authority to grant them a six-month variance. Now within a year if the house should not be disposed of and/or occupied perhaps it is in the neighborhood’s best interest that they do reappear.
Mr. Rejman: Yes.
Mr. Westlake: Do all three have to be occupied
Mr. Darrow: Mr. Hicks said yes.
Mr. Westlake: If only two are occupied they can loose it in six months also.
Mr. Rejman: Yes loose the 3 units. Fall back to a one. We are saying if the variance is granted and at the end of six months two units are occupied does it fall back to a two or fall back to a one?
Mr. Hicks: Sticky.
Ms. Marteney: It has never been a two.
Mr. Rejman: So that means it falls back to a one. Does everyone feel comfortable enough to vote on this? (All feel comfortable). Someone needs to make a motion.
Mr. Darrow: I would like to make a motion that we grant Harold and Jacqueline Seibert of 229 S. Hoopes Avenue a use variance for their property located at 99 Franklin Street, Auburn, for the purpose of a three apartment unit dwelling.
Mr. Sincebaugh: I’ll second that motion.
VOTING IN FAVOR: Mr. Gentile
Ms. Marteney
Mr. Darrow
Mr. Sincebaugh
Mr. Westlake
Ms. Aubin
Mr. Rejman
Mr. Rejman: Application approved. Good luck, call this gentleman up tonight, get him to sign a piece of paper for you and have him talk to the next door neighbor please. Thank you very much.
ZONING BOARD OF APPEALS
MONDAY, JUNE 2, 2003
78 Clymer Street, R-1, area variance of 14 square feet for addition of 10’ x 10’ shed, Derek Harold.
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Mr. Rejman: 78 Clymer Street, are you here please?
Mr. Harold: Good evening, my name is Derek Harold, I want to put an additional shed on my property, to a store riding lawnmower next year.
Mr. Rejman: OK. You want to put up a 10 x 10 shed and you already have an 8 x 8.
Mr. Harold: It is full up.
Mr. Rejman: Full up and you need an extra square feet and that is why you are here.
Mr. Harold: Lawn is a hard job and I would like to step up to a riding lawnmower but I need to keep it under a roof.
Mr. Rejman: Questions from the board?
Mr. Harold: I want to tear down a wild bush with thorns and it gets in the way of my kids playing and when I am cutting grass. It must have been there for 15 years, it is about 15 feet high and 20 feet wide, I want to take it down and put the shed there.
Mr. Rejman: That 10 x 10 shed is it sitting on a foundation?
Mr. Harold: It will be. I may have stated that I am going to build it, but I am going to probably buy it, it will be a lot easier on me.
Mr. Darrow: Are you going to have it sit on concrete or just gravel?
Mr. Harold: Probably concrete whatever the shed company recommends. I have some materials, I was going to build it, but I am not going to bother with it. My arm has been bothering me, I am just going to buy it outright. What they recommend for a foundation, I am going to go with it.
Mr. Darrow: The pre-manufactured shed that you are going with, is it going to have a work floor or are you going to use your yard as the base?
Mr. Harold: It is either going to be wooden or cement.
Mr. Darrow: One or the other, you are undecided.
Mr. Harold: No, I am not sure, whichever one they want. It is not going to be put on the ground.
Mr. Darrow: OK.
Mr. Rejman: Anyone wishing to speak for or against this application? Hearing none, we will come back. Questions, final comments? Kind of a generic thing.
Mr. Harold: Easier than the last one. (Everyone laughs).
Ms. Marteney: Not going to obstruct anything.
Mr. Rejman: No.
Mr. Darrow: Only going to be 14 square foot over.
Ms. Marteney: And each of them is not so huge that they are individually obnoxious.
Mr. Rejman: Right. Well put. Motion?
Ms. Marteney: I would like to make a motion that we grant a variance of 14 square feet for an area variance for Derek Harold of 78 Clymer Street for the construction of an additional 10’ x 10’ shed.
Mr. Westlake: I’ll second that motion.
VOTING IN FAVOR: Mr. Gentile
Ms. Marteney
Mr. Darrow
Mr. Sincebaugh
Mr. Westlake
Ms. Aubin
Mr. Rejman
Mr. Rejman: Good luck with the shed.
ZONING BOARD OF APPEALS
MONDAY, JUNE 2, 2003
233-235 Janet Street, R-2, area variance of 42 square feet for 192 square foot shed and variance of 78.3 square feet in total area of storage on property. Jim Moore.
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Mr. Rejman: 233-235 Janet Street, are you here please?
Mr. Moore: James Moore, 233 Janet Street and I just need a little more storage. My marriage just broke up, I had a 1500 square foot garage plus a large basement at my old house, and I just don’t have enough room in this place. I need another shed.
Mr. Rejman: Is the shed temporary or is it going to be on footers?
Mr. Moore: Just a slab, or probably treated lumber.
Mr. Rejman: Just a temporary thing and if you move along you might take the shed with you that sort of thing, right?
Mr. Moore: Yes.
Mr. Rejman: Questions from the board? No. Is there anyone wishing to speak for or against this application? None. Must be a question somewhere here. Building yourself or getting a kit?
Mr. Moore: I am doing it.
Mr. Rejman: Any further questions? We will close the public portion. Thank you.
Mr. Moore: Thank you.
Mr. Darrow: I was wondering if I could have a little clarification from Mr. Hicks.
Mr. Rejman: Mr. Hicks. OK.
Mr. Darrow: It appears there are two variances that are needed here. One for 42 square foot and one for 78 ½ square feet. I understand the 42 but I a not completely understanding the 78 ½.
Mr. Hicks: Excess of the 750 total.
Mr. Darrow: OK. Thank you.
Mr. Rejman: We need a motion.
Mr. Darrow: I would like to make a motion that we grant Jim Moore an area variance of 42 square feet fore the purpose of erecting a 16’ x 12’ shed and also a 78.1/2 square foot area variance for the purpose of having combined storage area in excess of 750 square feet.
Mr. Gentile: I’ll second that motion.
VOTING IN FAVOR: Mr. Gentile
Ms. Marteney
Mr. Darrow
Mr. Sincebaugh
Mr. Westlake
Ms. Aubin
Mr. Rejman
Mr. Rejman: Application has been approved. Good luck with your shed.
ZONING BOARD OF APPEALS
MONDAY, JUNE 2, 2003
67 Perrine Street, R-1, use variance for front yard parking space. Frank Porter.
________________________________________________________________________
Mr. Rejman: 67 Perrine Street, are you here please?
Mr. Porter: Hi, Frank Porter, I want to widen the present driveway at 67 Perrine Street.
Mr. Rejman: OK. Tell us why you feel you have a need to widen the driveway.
Mr. Porter: It is a two apartment house and there is one driveway on the side and both tenants can’t park there because if one parks in the back they have to wake the other one to move their car. Work schedules.
Mr. Rejman: So we have some pictures here. What is the width of that lot?
Mr. Porter: I am not sure, it is not too wide. The side porch, my neighbor’s fence is on the line, you have the pictures. There were bushes there, I had to remove those so the car could get back to the garage that is in the back. My son has a 1971 Camaro.
Mr. Rejman: From the pictures it looks like one of our infamous 40-foot lots there.
Ms. Marteney: Certainly not enough room on the other side to put the driveway on the right hand side of the house.
Mr. Porter: There is not enough clearance on the other side.
Mr. Westlake: Are you going to blacktop the driveway?
Mr. Porter: It would have been, but we had a stop work order, I have already paid to have it blacktopped, hopefully I can get the guy back.
Mr. Rejman: OK. Looks like you went around to the neighbors and got 8 different signatures.
Mr. Porter: Yes and I also have one from Doug Cameron, he sent it to Mr. Hicks in favor of this. I don’t know if you received it or not.
Mr. Rejman: No I haven’t.
Mr. Porter: If you like, I have a copy.
Mr. Rejman: Give me that, I will make that part of the record. Is there anyone wishing to speak for or against the application? None, any final questions from the board? Final questions?
Ms. Hussey: The driveway extends all the way to the curb cut, which is not permitted under the Code. I think Brian can explain.
Mr. Rejman: Brian you want to bring us up to speed on that.
Mr. Hicks: If you see the picture the way it is entered at the curb cut cross the sidewalk. The Code only allows it to be angled between the interior lot line of the sidewalk where you start your fan or radius out in the direction of the parking space. All of this correction here would have to go through a Curb Cut Application and approval through the Engineering Department prior to being completed as far as the sidewalk out. As it is right now the distance from the bushes to the sidewalk are just shy of the 18 foot and that is what is going to be required for a standard sized car at this point. There are some safety issues here that should be looked. Officer Weed I thought was going to be here tonight to address those. He was on his way down a couple of nights ago to take a look at it. This puts the bumper of the car at the edge of the sidewalk. There is no way to angle it to do it the way the Code allows. These are some of the things that the board should keep in
mind.
Mr. Porter: If necessary I can remove those bushes and it will give me another 2 or 3 feet. The upstairs apartment, she has a Volkswagen.
Mr. Rejman: Well the issue is not what is going to happen today but what is going next year or the year after that if we grant the variance.
Mr. Porter: I also did apply for a curb cut with the Engineering Department. They were suppose to submit that to Mr. Hicks.
Mr. Rejman: Could you extend the driveway back into the back yard?
Mr. Porter: Last year I put a fence around the property for $800 so that means I would have to remove that fence, a big stockade fence.
Mr. Gentile: If the bushes were removed would that help?
Mr. Hicks: That would move the tail end of the car more forward. The thing is that people walk on the sidewalk or kids on bikes and they come to this and have to go into the road.
Mr. Darrow: So obviously a curb cut is necessary.
Mr. Rejman: There is a curb cut application in, maybe the wise thing to do is table this until the end of the month. We are meeting again at the end of the month.
Mr. Darrow: Yes, but the one thing I can understand it the safety factors, kids on a bike or some thing, but where is the difference if you are backing up crossing the walk from this spot they should still look and every driveway crosses the walk.
Mr. Hicks: He is allowed a driveway but now you are asking to do something extra, now we have the possibility of two cars parked side by side in this small area.
Mr. Darrow: I can appreciate that because I am not a fan of parking areas in front of houses, but that is also why we grant variances because there are exceptions to the rule.
Mr. Porter: Also on the safety issue, a month and half two months ago on Cayuga Street, a 7 year old was riding on the street between parked cars and I am trying to get this car off the street so that children won’t do that.
Mr. Darrow: I think you suggestion is probably the best that we table it until next month, see what Officer Weed says, what Engineering says.
Mr. Porter: I did put in an application.
Mr. Rejman: Brian, how soon might he get an answer on that application?
Mr. Hicks: It hasn’t come across my desk as yet.
Mr. Porter: I asked in Code Enforcement, you were not there, and I said do I bring a copy, how do I get a copy back to you and you said it was going to be sent down.
Mr. Hicks: Hasn’t come to my office as yet.
Mr. Porter: OK.
Mr. Rejman: With unanimous consent I am going to table this until the next meeting if we can. I suggest you two get together and see if you can put a fast track on the application and we will go from there.
Mr. Porter: When do we meet again?
Mr. Darrow: Last Monday of the month.
Mrs. Westlake: June 30th.
Mr. Porter: OK, thank you. I should meet with Mr. Hicks?
Mr. Rejman: Yes. Brian will give you some options.
Mr. Darrow: I would like to make a motion that we table this item until the next meeting, June 30, 2003.
Mr. Westlake: I’ll second that motion.
VOTING TO TABLE: Mr. Gentile
Ms. Marteney
Mr. Darrow
Mr. Sincebaugh
Mr. Westlake
Ms. Aubin
Mr. Rejman
Mr. Rejman: 67 Perrine Street is tabled until the end of the month.
ZONING BOARD OF APPEALS
MONDAY, JUNE 2, 2003
10 Tuxill Square, R-2, variance of 7’ feet to erect shed 7’ from house, Susan Marteney.
________________________________________________________________________
Mr. Rejman: 10 Tuxill Square please.
Ms. Marteney: Good evening, my name is Susan Marteney and I live at 10 Tuxill Square. I am seeking a variance not of 3 feet but rather 7 feet to construct a shed in my back yard.
Mr. Rejman: The variance of 7 feet is from the house?
Ms. Marteney: From the house.
Mr. Rejman: OK. Why do you feel you need a 10 x 14-foot shed?
Ms. Marteney: There had been 12 x 18 garage on the property built in 1903 when the house was erected. About 12 or 13 years ago, I had it taken down because it had been neglected by previous owners, it had a flat roof and had completely rotted away and had some structural problems. I am like many people, I have a lawnmower, a snow blower, bicycles and such that I need to keep in a structure instead of dragging them down to the basement that is really not accessible from the outside. I will be recycling some of the foundation that is left from the garage. If you look at the photographs that were included, the whole back area is poured concrete and there were blocks set into the concrete when the garage was built and that will be used on two sides
of the shed as the footer or foundation.
Mr. Rejman: For the record it is a little difficult to see the lot size on this, the lot size is?
Ms. Marteney: I didn’t measure my lot, I just measured the back area.
Mr. Rejman: Another small lot though.
Ms. Marteney: Yes it is.
Mr. Rejman: Doesn’t leave you much opportunity
Ms. Marteney: There is no place else that I could put it. My house is on the corner of Tuxill and Tuxill and because Tuxill is a “T” and there is no place else that I could put a garage at all.
Mr. Rejman: Questions from the board? Is there anyone wishing to speak for or against this application? None. Last call for questions. We will close the public portion and discuss amongst ourselves. Comments, good to have comments?
Mr. Darrow: Does she really need it that big?
Mr. Rejman: (Laughs) It use to be 216 square feet now it is 140 now, smaller than what was there originally, the original footprint.
Ms. Hussey: On the west side there is a question mark whether a window will be allowed, Brain, could you address that.
Mr. Hicks: In the new Codes there is a section on opening for structures and since we are looking for a 7 foot variance because 10 foot is required from the accessory structure primary structure, there will not be any openings allowed in that wall.
Ms. Marteney: OK, that was one that I had a question mark on and I have decided not to put one there because it won’t get any light any way because of the position of the house it would be essentially useless window.
Mr. Hicks: That sidewall closest or running toward the primary structure will have to have some fire retardency to it for fire separation.
Mr. Rejman: Motion?
Mr. Darrow: I make a motion that we grant Susan Marteney of 10 Tuxill Square a 7 foot area variance for the purpose of proper spacing between primary structure and a 10’ x 14’ shed structure to be erected as per site plan.
Mr. Gentile: I’ll second that motion.
VOTING IN FAVOR: Mr. Gentile
Mr. Darrow
Mr. Sincebaugh
Mr. Westlake
Ms. Aubin
Mr. Rejman
Mr. Rejman: Application has been approved.
ZONING BOARD OF APPEALS
MONDAY, JUNE 2, 2003
76 Mary Street, R-1A, 5’ side yard variance for pool, Christopher and Mary Amoia.
________________________________________________________________________
Mr. Rejman: 76 Mary Street, are you here please?
Mr. Amoia: Good evening, my name is Chris Amoia of 76 Mary Street and I am requesting a variance to erect a 15 x 25 oval pool in my back yard and the variance we are requesting will be 7 feet side variance.
Mr. Rejman: I am not sure, it says 5 feet side
Mr. Darrow: It is advertised as 5 and 5.
Mr. Amoia: Five, ok, my mistake.
Mr. Rejman: Tell us why you decided to spot the pool there.
Mr. Amoia: Right now we have an existing playground set that I don’t want to move and that is the only spot that I had in the backyard to build it.
Mr. Rejman: Looks like you are dealing with a clear site triangle, an existing garage and what size lot do you have here?
Mr. Amoia: I have my tax map here, if you want to take a look at it.
Mr. Rejman: Yes, pass it around.
Mr. Darrow: 49.5 wide and 181.6 deep. It is not a corner lot.
Ms. Marteney: Not a corner lot, picture is not to scale at all. The front line is kind of where his house is.
Mr. Rejman: So wide is the issue.
Mr. Darrow: Yes, when you consider 49 wide and he needs 10 foot from either side that eats up 35 foot of his yard. He has a garage there.
Ms. Marteney: Half of your backyard is concrete.
Mr. Amoia: That is correct.
Ms. Marteney: Your driveway is.
Mr. Rejman: Anyone wishing to speak for or against the application? None. Questions from the board? Final comments, any comments?
Mr. Amoia: My kids will be very happy. (Everyone laughs).
Mr. Rejman: If it stays like last weekend, nobody is going to be happy. OK, thank you very much, we will close the public portion. These small lots.
Mr. Darrow: 49 foot width speaks for itself, what are you going to do with it.
Mr. Rejman: And it is an above ground, not like it is a below ground pool.
Mr. Darrow: Yes.
Mr. Rejman: Not going to live there forever.
Mr. Darrow: I would like to make a motion that we grant a rear yard area variance of 5 feet and side yard area variance of 5 feet to Christopher and Mary Amoia at 76 Mary Street for the purpose of erecting a 15 x 24 oval above ground swimming pool as plotted on application.
Mr. Sincebaugh: I’ll second that.
VOTING IN FAVOR: Mr. Gentile
Ms. Marteney
Mr. Darrow
Mr. Sincebaugh
Mr. Westlake
Ms. Aubin
Mr. Rejman
Mr. Rejman: Application has been approved.
ZONING BOARD OF APPEALS
MONDAY, JUNE 2, 2003
114 Walnut Street, R-1, variance of 2’ for front stoop to be located 11’ from lot line, Marcus and Susan Devoe.
________________________________________________________________________
Mr. Rejman: 114 Walnut Street, please.
Mr. Devoe: Hi, I am Marcus Devoe, and this is my wife, Susan Devoe, 114 Walnut Street. We are applying for a variance of 2 feet for our front stoop, which will be located 1 foot from the lot line. The reason we are applying for this for safety mostly and secondly is for aesthetics. The current stoop has succumbed to its age and we have to rebuild and it is only 4 feet deep from the exterior of the house. When you open up the front door, people generally have to back up towards the steps leading up to it and it is quite narrow, so it is not very functionally and it is rather unsafe. We thought since we had to rebuild we should make it a little deeper and safer.
Mr. Rejman: So because it is a foot wider than the old footprint that is why you are here?
Mr. Devoe: That is what the architect said.
Mr. Rejman: We need to give Codes more levity on some issues. Questions? Basically the reason, bigger than the old footprint.
Ms. Marteney: And you could see why it needs to be replaced, the brick is just falling out.
Mr. Rejman: Anyone wishing to speak for or against the application? None. Final questions from the board. None. Have a seat we will close the public portion and discuss this.
Ms. Marteney: They are rebuilding what was there and making it safer and it looks better.
Mr. Rejman: Right.
Mr. Darrow: I would like to make a motion that we grant Marcus and Susan Devoe of 114 Walnut Street, a 2 foot side yard variance for the purpose of reconstructing their front stoop as submitted on drafted plans.
Mr. Rejman: Hold. Brian, I have one that says one foot and the other one says two foot. Do you know which one it is?
Mr. Darrow: Where do you see two?
Mr. Rejman: Here (points to paper). Why don’t you amend that Ed to two and that way if they only use one they are ok.
Mr. Hicks: If you look at the drawing it says 11’ 7” they are going to come back one foot so that would be 10’ 7”. Set back is required to 12 ½ feet and they are showing 12.
Mr. Darrow: I would like to amend my motion to reflect two foot.
Mr. Gentile: I’ll second that motion.
VOTING IN FAVOR: Mr. Gentile
Ms. Marteney
Mr. Darrow
Mr. Sincebaugh
Mr. Westlake
Ms. Aubin
Mr. Rejman
Mr. Rejman: Application has been granted.
Mr. Devoe: Thank you.
ZONING BOARD OF APPEALS
MONDAY, JUNE 2, 2003
33 N. Division Street, C, use variance for parking in front yard. Monica DePalma.
________________________________________________________________________
Mr. Rejman: 33 N. Division Street, please, are you here?
Mrs. DePalma: Good evening, I am Monica DePalma and I am here for my son. This was actually approved last year by the Zoning Board and my son did not get the work done in time. Still would like to install the parking area and they would like to remove and replace the sidewalk and curbs in front. The drawings are there.
Mr. Rejman: So the issue here is that we just ran past the six months and did not get a hold of Codes and didn’t get it extended.
Mrs. DePalma: We did get it extended and it past the year. We did not get the work done winter came fast.
Mr. Rejman: I remember this.
Ms. Marteney: We were concerned about parking issues, but there is no place else to park.
Mr. Darrow: You can see by the pictures how parking at the curb has ruined the sidewalk, created potholes from the curb line. The car apparently can be pulled half to two-quarters off the road. This will also free up the sidewalk so that they are not blocked.
Mr. Rejman: Is there anyone wishing to speak for or against this application? Yes, come forward please.
Mr. Temple: Hi, Gary Temple. Mr. Chairman and members of the board. I rise to oppose this variance. I was on the Zoning Board at the time this item was brought up and I think I recall speaking against setting a trend in a direction that is not good for our City. I think that since that particular application was approved by the board the time I was on it, that there were at least one if not two other front yard applications.
Over the weekend I had some time where I was traveling through some of the local villages, small cities and so forth in New York State. I recommend that experience for all of you, because when you do that, you go around and see the affects of having curbs, which the City of Auburn doesn’t have very uniformly and green spaces with trees in it between the street and the sidewalk, you can see how much nicer it makes the community look.
Well actually I don’t want to strive on that, I want to talk about where we are right now in performance of your duties. What I am referring when I say that, respectfully speaking, you have the cart in front of the horse right now at this exact moment and on this particular application. When I say that I refer to the procedures that you will find in the City Code for people who wish to obtain a use or area variance. It is a chart; I don’t know if you ever availed yourself to looking at it, it is found at the end of Section 305.14. That chart shows that when an applicant is denied a building application for a particular reason to do a zoning that their next step is to make an appeal to this body. This body is then to make a SEQRA determination. Right off
the bat first and then according to this chart, this is not according to me, this chart says the next step on that route, there are arrows and flow charts, public hearing.
We are in a public hearing right now, but you haven’t done a thing to resolve the issue of an initial SEQRA determination. And before you do that under SEQRA you have to identify what kind of a class action this is, what kind of an action it is. Is it a Type I, Type II or unlisted? And this chart shows specifically what happens when and if you make that decision. If you make a decision that this is a negative SEQRA then you are free to carry on with the public hearing. On the other hand if you decide that this is class of an action that has a requirement that mandatory that you list it as a positive, or you find reasons that it may be positive even if that is not mandatory, you are required then to send it onto the Planning Board end of the meeting as far as that
application is concerned. There should be no public hearing going on at this minute.
There is an additional chart in that same Code that I referred to, I don’t know if ever availed yourself of reviewing it or not, but I will just take a moment, this is a procedure guide for SEQRA reviews. It shows that the applicant should submit a short environment assessment. The next thing the SEQRA agency makes a determination, that is you, you are suppose to make an initial determination. The next step is, if there is a positive significant impact, you are suppose to refer it to Planning Board, no public hearing. This is the way a SEQRA review goes. If you find that there is a negative declaration than the agency can go forward, it means you can go forward. So I have a problem with where we are right now this minute on this application.
Mr. Darrow: May I ask why? It had a SEQRA review; we haven’t had our closed session yet to review the SEQRA review, so how can we go forward?
Mr. Temple: Should have done it before I had an opportunity to give you the class of zoning law.
Mr. Darrow: No, we always let the public speak
Mr. Rejman: Gentlemen – order. All questions and comments come to the Chair. You may continue.
Mr. Temple: In response to the question such as was raised, the charts that I referred to both of them and in particular the one about how to obtain a use or area variance, show flow charts and you can’t get from point A to point C without going through point B and if you do, you violated the procedure. It brings us to the point where you then make variance motions contingent on other things, which are improper. So at this point I am rising to say to you, you should do what is right, you should stop this public hearing right now, you should not advance it another bit until you make the required procedures under SEQRA and then it may be that your permit is to go forward and if that is the case, I do object to use of front yard parking. I think it is deleterious to the beauty of the City and contributes to the loss of sidewalks where people can’t, say if a car is parked on the sidewalk, there is no sidewalk. Thank you.
Mr. Rejman: Mr. Temple, I would like to ask a question.
Mr. Temple: Yes.
Mr. Rejman: I am curious as to why you didn’t rise on 67 Perrine Street that had the same issue?
Mr. Temple: I didn’t see that you gave an opportunity to do so. You tabled it.
Mr. Rejman: I believe I called for or against. I will have to go back and check.
Mr. Temple: There wasn’t going to be a call on this one Mr. Chairman unless you saw me raise my hand.
Mr. Rejman: I take offense with that Mr. Temple. You may sit down. Counsel do you wish to comment?
Ms. Hussey: I would advise the board to go ahead and proceed you have a SEQRA.
Mr. Darrow: That is my feeling exactly. There is a SEQRA review, we all had our packets ten days in advance, we all reviewed our packets as we do, we all reviewed the properties that we need review, feel we need to review, therefore, if questions come up concerning the SEQRA review or any other part of this at our when we close the public portion as always that is when we shall discuss.
Mr. Gentile: Second time we have seen this.
Mr. Rejman: Right. Let me do this. Anyone else wishing to speak for or against? Hearing none, we will come back. Final questions for the applicant? None, we will close the public portion ok. Comments.
Mr. Sincebaugh: I think getting the cars off the street, I think that is positive. I don’t think you can put trees between the sidewalk and the roadside.
Mr. Rejman: We do have these issues with there are lots have issues and that is why they are before us.
Mr. Darrow: Mr. Chairman, one question I would like to poll on the members. Is there anybody that feels that this is a negative declaration of the SEQRA review? I do not feel it to be negative.
Ms. Hussey: Perhaps it would clarify if you did a review along on each action item.
Mr. Rejman: OK, Counsel will you do that for us?
Mr. Darrow: I assume we all did as we read our packets before we came.
Mr. Rejman: This is one that we have done before, we have done this procedure.
Ms. Hussey: Except that the procedure that you already approved has expired.
Mr. Rejman: All right.
Ms. Hussey: A. Does the action exceed any Type I threshold in 6 NYCRR, Part 617.12?
Board: No.
Ms. Hussey: B. Will the action receive coordinated review as provided for unlisted action in 6 NYCRR, Part 617.6?
Board: No.
Ms. Hussey: C. Could action result in any adverse effects associated with the following?
C1. Existing air quality, surface or ground/water quality or quantity, noise levels, existing traffic patterns, solid waste production or disposal, potential for erosion, drainage or flooding problems?
Board: No.
Ms. Hussey: C2. Aesthetic, agricultural, archaeological, historic or other natural or cultural resource; or community or neighborhood character?
Board: No.
Ms. Hussey: C3. Vegetation or fauna, fish, shellfish or wildlife species, significant habitats or threatened or endangered species?
Board: No.
Ms. Hussey: C4. A community’s existing plans or goals as officially adopted, or a change in use or intensity of use of land or other natural resources?
Board: No.
Ms. Hussey: C5. Growth, subsequent development or related activities likely to be induced by the proposed action?
Board: No.
Ms. Hussey: C6. Long term, short term, cumulative or other effects not identified in C1-C5 above?
Board: No.
Ms Hussey: Other impacts (including changes in use or either quantity or type of energy)?
Board: No.
Ms. Hussey: D. Is there, or is there likely to be, controversy related to potential adverse environmental impacts?
Board: No.
Ms. Hussey: Having made your findings, a resolution should be made.
Mr. Darrow: I am just curious about what we are treading on here because in the 13 years that I have been a member we have reviewed SEQRA reviews but we have never voted on as accepting it has always been amongst us are we happy with the SEQRA finding and then we proceed into the actual variance. I have feared that we are going into uncharted land here where now if one should not be actually adopted on voted on it could be legitimate grounds for an Article 78, by missing one step.
Mr. Gentile: We are voting on the variance and that SEQRA is part of the package.
Ms. Hussey: That is correct. But it is a use variance. Steve Lynch may be able to clarify.
Mr. Lynch: What you need to do, is you need to do is pass a resolution acknowledging that there is no significant impact on the environment, you act on SEQRA prior to acting on your use variance. You cannot act on the use variance prior to acting on the SEQRA. That is in the SEQRA statutes or by having a coordinator or somebody else act on SEQRA.
Mr. Rejman: We understand that if an applicant fails to obtain permits that the application becomes void in six months. At what point after the declaration of negative SEQRA does the SEQRA become void? Having been voted on before doesn’t that stay in perpetuity?
Mr. Lynch: The SEQRA I believe would.
Mr. Rejman: Then why are we doing this again?
Mr. Lynch: I don’t know whether or not it was voted on before.
Ms. Hussey: There is an objection on the floor.
Mr. Rejman: I think we are just doing this because there is an objection on the floor. Just so we don’t have to go backwards.
Mr. Darrow: Then I would like to make a motion that we approve and find that there is no negative impact in the short form SEQRA review as submitted by Christopher J. DePalma for his property at 33 and 33 ½ N. Division Street.
Ms. Aubin: I’ll second that.
VOTING ON SEQRA: Mr. Gentile
Ms. Marteney
Mr. Darrow
Mr. Sincebaugh
Mr. Westlake
Ms. Aubin
Mr. Rejman
Mr. Rejman: Now move onto the application proper. Someone wish to make a motion or not?
Mr. Darrow: I would like to make a motion that we grant Christopher J. DePalma and Stephen J. DePalma, 4251 Westlake Road, Geneva and 17 Cady Street, Auburn, a use variance at 33 N. Division Street for creating two off street parking area as plotted on submitted drawing.
Mr. Gentile: I’ll second that motion.
VOTING IN FAVOR: Mr. Gentile
Ms. Marteney
Mr. Darrow
Mr. Sincebaugh
Mr. Westlake
Ms. Aubin
Mr. Rejman
Mr. Rejman: Application has been approved.
ZONING BOARD OF APPEALS
MONDAY, JUNE 2, 2003
7 Seminary Street, C-2, variances in depth of buffer and amount of planting units, Tompkins Trust Co.
________________________________________________________________________
Mr. Rejman: 7 Seminary Street, are you here please?
Mr. Redmond: My name is Tom Redmond, I am an architect with Beardsley Design Associates and we are here representing Tompkins Trust Company. We have Mr. Anthony Franceschelli from the bank with us here tonight to help us with any questions that you may have.
We are here to ask for a variance regarding 7 Seminary Street and that is a side yard set back requirement that we are asking for, 44 feet on the west side and planting unit requirement in that buffer. The planting units for a buffer is 140 and we can only get in 84.
This is a multi-unit apartment complex. This whole area is zoned C-2 Commercial, but because this is multi-family, it is considered as an adjusted use, so that zoning requirements are 50 feet here, however, the size of the property is 56 feet so if take out 50 feet on one side and 6 feet on the other, you have used up all the feet. The depth of the property is 139 feet .15.
This property became available to the bank later on in the project and the purpose of this is two fold. One is it is going to create a much safer situation by adding another access to the site off Seminary Street and two the amount of staff and customers they are expecting will meet the additional parking.
Mr. Rejman: So just to place it in layman’s terms, you bought the property, you are raising the house and you are putting in a parking lot. I am having issues with the aesthetics on the landscaping.
Mr. Redmond: Just to make it clear, we have not purchased, it is contingent upon approval.
Mr. Rejman: OK.
Mr. Darrow: Can we even give the variance for the planting or does that come out of Planning? Is that part of the site review?
Ms. Hussey: A variance is required because Tompkins Trust the applicant, wants to use it for commercial purposes, parking for the bank, as part of that site plan. It is adjacent to a residential use. 305.25 of the Code provides that a buffer is required between uses and the applicant is seeking a variance to reduce the amount.
Mr. Darrow: Of the buffers, but I wasn’t sure if that fell under us, or Planning.
Ms. Hussey: Under the jurisdiction of the Zoning Board of Appeals.
Mr. Westlake: Since they don’t own it yet, how can we grand the variance?
Mr. Redmond: We have authorization from the owner that we can go for the variance, the offer is contingent on the variance.
Ms. Hussey: Brian are you satisfied with that?
Mr. Hicks: There should be a letter in your packets from the owner of the property giving Tompkins Trust the authority to come and seek this variance – Mr. and Mrs. Scott Minnoe.
Mr. Rejman: We don’t have that.
Ms. Hussey: It apparently was omitted from the packets to the ZBA, but it was in the original application packet.
Mr. Redmond: I have a copy of that letter.
Mr. Rejman: Well, we will read this into the record.
Ms. Hussey: This is dated May 20, 2003. Mr. Anthony Franceschelli, Tompkins Trust Company, P.O. Box 450, Ithaca, New York 14851.
Re: Property at 7 Seminary Street
We hereby authorize Tompkins Trust Company to seek an area variance and site plan review with the City of Auburn.
Sincerely, Scott Minnoe and Anne Minnoe. This was notarized by Candance M. Reeves.
Mr. Rejman: I am going to keep this with the record, if I may. Thank you. Let’s go out to the public, is there anyone wishing to speak for or against this application? Yes.
Mr. Kerns: My name is John Kerns, I live at 3097 Franklin Street Road. I am also on the Board of the Community Preservation Committee. I just drove by the property earlier to see things and as you know there is a residential area across the street. The side of the street where this property is was once residential. I know the commercial district is growing and it is always a battle to see how we can mix the two. I noticed tonight that the property is quite a tight lot where this house is going to be proposed to be demolished and I think if there was a variance or some thing to be changed here it would be an increase in the buffer and increase in planting. I think we removing a residential property to permit parking
amongst other residential properties is a detriment to the character of the neighborhood and I think that should be thought about in granting these variances. I think if any concession should be made it should be an increase in plantings and increase in buffers and not a reduction.
Mr. Rejman: Question. The property is sitting in a C-3 zone.
Mr. Kerns: Yes.
Mr. Rejman: If the proposed purchased property was leveled and the property next door was leveled, if they bought both of them, they wouldn’t even need to be here. C-3 they could do what they wish. Only reason they are here because there is one residential property remaining.
Mr. Kerns: There are quite a few across the street.
Mr. Rejman: Across the street, that is a different zone
Mr. Kerns: And I think you need to take into account the surrounding areas. Your book may say you have to notify certain people in a certain distance because of the location, but let’s think outside the box. This was once a rather large campus of seminary owned houses. Overlay districts we are thinking of doing overlay districts with the City, we have yet to do any of those, so I really think it is all premature. These are important decisions that you are making on a small level, which will impact these areas on a much larger level. I think these little lots that we think are you know insignificant are really significant because as soon as you redevelop one property it affects the next two across the street. There is one property adjacent to this that is residential. I think you have other applicants who are up against the same issues who would like to expand their businesses and it is difficult for them but I also think you are shooting the City Planning Department in
the foot because they are working hard to develop overlay districts to strengthen these residential areas.
Mr. Rejman: OK, good. Thank you for your comments. Do we have any input from Planning on this – a recommendation? Has Planning seen this yet?
Mr. Lynch: We have been able to look at this plan. We did advise the applicant on what they would need for the buffer. We did talk to Codes about the condition of the house. Took a hard look at the prime uses and took a hard look at the amount of pavement surrounding this house. We are ready to bring it to the Planning Board tomorrow night for site review pending ZBA action tonight.
Mr. Rejman: It has always been difficult for us here on the ZBA to find out who is in charge sometimes, who is the lead agency in some of these projects. We are always looking for, we will sit here and say do we have any input from Planning and I am sure Planning is saying do we have any input from ZBA. We need to clarify that somehow. Or do we look at this and say this is contingent upon Planning and then Planning comes back and says this is contingent upon Zoning and then there is this big thing all the time.
Mr. Kerns: May I speak again?
Mr. Rejman: Yes, you may.
Mr. Kerns: This has kind of bothered me too in the past and I think it is unfortunate for the applicants that have to both apply for Zoning and Planning variances and review. I know people like the Kubareks, it is not difficult going through the whole process. I think if we started the whole lead agency is an important point and it comes right down to your SEQRA process too. If you don’t start with a lead agency with SEQRA you get in trouble.
I have seen other boards working in conjunction where there is a little more commitment on the applicants part but it flows better, they start with the Planning Board, they get a recommendation from the Planning Board on their behalf and we could avoid a lot of these buffer issues too. The variances that people come up for are somewhat ridiculous. Two feet of additional room, well if the Planning Board came up to you with a recommendation saying we have taken care of that we talked with the owner, we dealt with vegetation, kind of soften that impact. If you start with the Planning Agency or the Planning Board who are kind of looking at vegetation and curb cuts and all these items which can really make a design sing and work for the City, you get a recommendation from them it might help
you in your variance decision and maybe they take care of the 8 issues that are the strong ones and add a couple other that are pending, at least they can get the opportunity to moving on to the Zoning Agency to resolve zoning issues which are a little more cut and dried for the most part. They could help with tuning those and make it work for the applicant. I think sending an applicant back and forth like a ping-pong ball is really a big problem here. A lot of these applicants have got to go right from your decision today to another review tomorrow. You are trying to make decisions based on things they are going to talk about tomorrow. It is kind of silly.
Mr. Rejman: Great, I appreciate that. I think we have enough before us so that we can make a decision on the area variance, we may want to make recommendations to it as we send it up. I would like to call the applicant back just to make sure to let you know our bases here. Questions regarding minimum buffers? Any questions here? Everyone clear on the variance that we are looking for here? Help me with 68 planting units, could somebody do that for me?
Mr. Lynch: The chart that is in the Code is a combination of distance 52 in this case and a number of plant units. 140 I believe is required. To give you an example, a shade tree small honey locust or something like that is 10 units. A shrub that is put in the ground is 1 unit. So this here is a mixture of shrubs and trees and I think we also typically provide some plant unit buffer for a fence that provides a visible buffer as well. So that combination of buffers is what they are seeking, the distance and the number of plantings is what they are asking relief from. Rather than cramming all 140 units into this space, I think the applicant if they didn’t want the parking they could provide more of a buffer but
want the buffer in addition to the parking. Does that answer your question?
Mr. Rejman: Yes you do. Thank you. We are looking for a variance of 44 linear feet from the west side. Everyone feel comfortable? I am going to make one last call. Last call anyone wishing to speak for against the application? See none. Close that. Last call for questions from the board. Close that. Close the public portion. Thank you very much.
Mr. Darrow: I feel reasonably good about it given the fact it appears there has been contact between them and somebody in Planning to help give them some direction. It is not like they are just pulling these numbers out of the thin air.
Mr. Rejman: I feel good about that. I do think we do need maybe to work on a fast track program to help some of these projects move along. Maybe I will speak to the Planning Chair and see what we can come up with. A motion?
Mr. Darrow: I would like to make a motion that we grant an area variance of 44 lineal feet for the west side of property located at 7 Seminary Street for Tompkins Trust Co, who has a purchase offer pending on said unit and a unit variance of 68 planting units for reduction in the buffer zone planting area.
Mr. Westlake: I’ll second that motion.
VOTING IN FAVOR: Mr. Gentile
Ms. Marteney
Mr. Darrow
Mr. Sincebaugh
Mr. Westlake
Mr. Rejman
ABSTAINING: Ms. Aubin
Mr. Rejman: Application approved. Good luck with the Planning.
ZONING BOARD OF APPEALS
MONDAY, JUNE 2, 2003
78-80 Seymour Street, variances in depth of buffer and amount of planting units, K&S Car Wash.
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Mr. Rejman: 78-80 Seymour Street please.
Mr. Greco: Mr. Chairman, members of the Board, my name is Charles Greco. I am an attorney representing the applicants on this matter. I will allow Mr. Kubarek to describe the project which I know you are somewhat familiar with already. But because the procedural issue has come up already twice tonight that affect other projects I just wanted to briefly raise that issue now and that is the order of things and what we are going to recommend how this should proceed and that is we conduct a public hearing on the variance request tonight, but we are not asking that the board rule on that this evening. Tomorrow night the Planning Board is going to consider the applicant that has been submitted to them and as lead agency as
designated by Code, is going to make the determination of the significance under SEQRA. And at a subsequent meeting you will have that determination to rely on before you make your final determination. That is how we propose the board hear this application. If no one has any questions, I will have Mr. Kubarek speak.
Mr. Rejman: What are the board’s feelings? I think the board would enjoy the input right now. It would give us a chance for the next few weeks to mull that over and then we will our input from Planning and then we will be in a better position at the next hearing to make an informed judgment. Good.
Mr. Kubarek: Good evening. I am Mark Kubarek, I was here in February for a use variance for a new six bay car wash, next to my existing location on North and Seymour Streets.
I am here tonight for an area variance, I submitted site plans and all SEQRA documents to the Planning Board on April 14th. At that time Planning referred it back or tabled it for an area variance. I provided buffering in my site plan, all SEQRA documents were submitted to Planning Board too and you have those SEQRA documents in your packet. Everything the Planning Board was looking at, you have in your packets, and we provided it for you.
On the east boundary of the property, this is the old existing car wash, we have taken some of that and enclosed that in, and we worked with Planning on that. On the new site, we provided a 15-foot buffer on the east end of the property. We are buffering to a condemned house, the house, nobody lives there, and it is condemned. I think it is on the City’s list and I am trying to negotiate with the City to purchase that property and if we do obtain that property it will become a buffer, it will become a green space, we are not going to build anything on it if we can obtain it. I think it is between the City and the bank right now, but we have been working with the City and the bank trying to obtain the property. We are buffering on the east end from that house, it is
not occupied, that would be the only residential use that would be left on this side of the street. Like I said it is unoccupied, it is condemned.
The southern border of the property which will provide 8 feet and all the plantings that you see going on over there, aesthetic plantings, some shade trees, there is a planting schedule on your site plan that you have in front of you. We are buffering to Schwartz Towers that is where we are buffering to there.
On the other side of the fence there is a fence that Schwartz Towers has there so we can’t put a fence up there. We are providing 8 feet with the trees. To get to the towers there is 25 to 30 feet of grass that is 8 feet higher than their parking lot and then a 55-car parking lot before you get to the building. But we are basically in the same situation that – it is commercial C-2, but residential use. We are in the same situation that Tompkins Trust was in with theirs, but we did provided 8 feet with the plantings facing Schwartz Towers.
Like I said to the east is a depilated house that is condemned, going to be foreclosed upon by somebody, either the bank or the City, I don’t know which yet. The reason we are here tonight is for an area variance, I guess the buffering is suppose to be 50 feet on each of those, we provided 15 feet with an 8 foot stockade fence with a bream that runs from 2 feet to 6 feet on the east side. On the south side we provided 8 feet, so think I it came up to 42 feet rear and 35 feet side yard variance, am I right on those figures Chuck?
Mr. Greco: From what I have heard yes.
Mr. Kubarek: This is the next step to try to bring our project to fruition. Like I said before when I was here for the use variance that economic changes, not economic changes, competitive changes in the carwash industry, if we don’t build this new type facility to complement our other carwash, in five years we won’t be in viable business within the City limits of Auburn.
As far as the houses that are there now, I can’t see how you could ever get a reasonable return on any of those houses the way they are. . The first best use for that land would be this - the carwash.
In recent months there have a number of projects, Tompkins Trust is one, I don’t know if they came to the Zoning Board for use on what they are building now in the old Friendly location, but they border the same use that I do which is a C-2 zone which Schwartz Towers, but it is residential use and they have a 6 foot buffer. I have on my own lot now is a 6 foot strip of grass and 8 foot stockade fence that was approved by Planning in 1994.
Kinney Drug Store, new development down on State and Seymour Streets, fence is 3 feet. I don’t know if that was granted by variance or by Planning Board. So there are a number of uses – the City’s buffering act I can’t see a commercial development that I looked at complies with the 50 feet or 60 feet between residential and commercial, that I can see. The Hess Gas Station is another. I know they were here for a variance. Hess was granted a variance. As far as Kinney Drug Store and Tompkins Trust, I don’t know if they were granted variances or just approved by Planning when the site plan was determined. They are skirting a residential use, it is a residential use and
commercial zone. So I ask the board tonight to entertain my area variance, my application for area variance for buffers. Thank you.
Mr. Rejman: Is there anything in the – this is an information meeting at point, is there anything in your packets that your are confused about that you would like the applicant to help you understand. Why don’t you go through and take a look.
Ms. Marteney: I have a question about determining the planting units. Those plants that are along there, are those shrubs that a smaller quantifying amount to them – those are going to be smaller types of things?
Mr. Kubarek: Yes.
Ms. Marteney: OK.
Mr. Kubarek: I told Planning – the way that this site plan that you are looking at now it really doesn’t concern the area variance, I am going to tell Planning the same thing tomorrow night how on North Street we have taken and put plantings in there. I told Jim it is just going to end up all grass, my life is too short to deal with the DOT, the Department of Transportation.
Ms. Marteney: Down here?
Mr. Kubarek: Out on North Street, we show shrubs in there, but it is going to end up all grass. Like I said my life is too short to try to deal with the DOT. Any other questions?
Mr. Rejman: Would like to see if there are comments from the floor. Is there anyone wishing to speak for or against the applicant? Yes, come forward please.
Mr. Jacobs: My name is Bill Jacobs. I live at 95 Cottage Street, Auburn, New York and I would like to speak in favor of Mark’s project.
Long before when Mrs. Westlake lived on Nelson Street, I lived up there many years ago when it was called the Seminary group I was down there. I can remember these homes, the 3 homes, the 3 dwellings that are there and they are an eyesore. One is in very bad shape and the City has taken that up as part of their foreclosure at this point.
With Mr. Kubarek’s project here, he will complete the whole south side of that Seymour Street project from Nelson Street to North Street. A lot of thought went into his plans, it is a family owned business, it has been there for years and hopefully will still be there for a long time. As you look at it, the drawings that I saw, on the corner of Nelson Street where there is the new dialysis building and then Mr. Kubarek’s will be on the west side of that, and the whole center piece of this is going to be the Willard Chapel, this is going to be left open and this will all blend in together. When this is completed is will revitalize that whole side of the street, clean it up and get the properties back on the
tax rolls and I think it is to the betterment of the City of Auburn. Thank you for your time.
Mr. Rejman: Good, thank you very much. Anyone else wishing to speak for or against this application? Yes?
Ms. Walczyk: I am Deb Walczyk and I own the house right across the street from the carwash. And I just wanted to say after looking at this, that I am also in favor of Mark.
Mr. Rejman: The houses that you own across the street are?
Ms. Walczyk: 110 North Street and 87 Seymour Street.
Mr. Rejman: Thank you very much. Anyone else wishing to speak for or against? Yes?
Mr. Schlenker: Yes sir, my name is Rich Schlenker and I live at 75 Seymour Street. I have the misfortune of living right where that new commercial areas are starting to encroach upon us. I wasn’t able to look at the presentation, but am I to understand that Mr. Kubarek is asking to remove his buffer and move it farther east on Seymour Street?
Mr. Rejman: No, that is not it.
Mr. Schlenker: I couldn’t see.
Mr. Rejman: You couldn’t see.
Mr. Schlenker: I wasn’t sure what he was asking for a variance for.
Mr. Rejman: Mark why don’t you show him that.
Mr. Kubarek: The property line is the red house, across the street from you is right there. (Points to sketch)
Mr. Schlenker: That is going to be green there, what is going to happen farther east?
Mr. Kubarek: The condemned property is east. This is the property line for the condemned house right there (points to sketch). We are not going any farther east.
Mr. Schlenker: Which way are you asking for a variance?
Mr. Kubarek: Right here.
Mr. Schlenker: To the south?
Mr. Kubarek: To the south and the east. Instead of having to have a 50-foot buffer, you are only going to get 15. We are not going over to that property line.
Mr. Schlenker: I know that, I am just saying you are asking to go further east than you originally planned?
Mr. Kubarek: No, this is what we originally asked for, we didn’t realize it was a problem until site plan review. This is our original site plan we haven’t changed it.
Mr. Schlenker: I believe that the ZBA kind of showed a disregard for the health, safety and welfare of myself, my family and my elderly neighbors when you granted the initial use variance for this project. Now Mr. Kubarek wants to move the project even further closer to my property. I can you said that across the street doesn’t really matter that much as far as commercial development. Now the ZBA is considering whether or not to allow Mr. Kubarek to build a larger carwash in the allotted space and the use variance provides for and that is with a further reduction of a buffer, the commercial activities of the carwash, with car emissions, noise pollution and 24 hour lighting will be even closer to my house. I ask that you keep the buffer
restrictions whatever the City Code requires to what is presently required. That is all I want to say.
Mr. Rejman: OK. Thank you Rich. Anyone else wishing to speak for or against this application? Yes?
Mr. Temple: Gary Temple again.
Mr. Rejman: Gary, what is your address.
Mr. Temple: 110 South Fulton Street.
Mr. Rejman: OK, thank you, go ahead.
Mr. Temple: I rise in opposition to the request for a variance and I do so thinking first of all about the initial application that brings us to this point – the request for a use variance. I recall at that time the applicant stressed there will be nice big buffers, lots of green space, tree lines were not going to be bothered. Now we see in this segmented approach where first the application is for the use and then it is for shrinking the things that were talked about when he encouraged all of you to pass the use variance – it is call segmentation.
What we have to consider in all projects and just by way of saying that tonight you heard the applicant tell you about other things that you have granted in way of variances, how this affects the future things that take place in the City. Future applicants down the road will also site what you do here tonight. With all sites we have to consider how much land there is and how much should rightly be accorded to green space versus development. Hard space versus soft space.
One of the considerations which this board ought to apply is to consider it is just consideration in part with the other things whether or not this needed variance is self-created – if the need for the variance is self-created. I would suggest to you that this is the height of just that, it is a self-created hardship. You have a parcel which just for sake of arbitrariness is this big and you have to had a 50 foot set back because it is backing up against residential, but the development plan including the hard space requires that those green spaces be shrunk down. So if isn’t self-created I don’t know what is. The alternative and this is something else that the board should be considering if this
is the smallest variance that can get the job done and I would submit to the board that the hard space could yield to the green space, that is an alternative. So I think those are my major objections and again to say that it is regrettable to see the segmentation of the process where claims are made in one hearing and then they are retracted in the second hearing. Thank you.
Mr. Rejman: Is there anyone that wishes to speak for or against this application? Closing comments?
Mr. Greco: I just would like to address couple of the points raised by Mr. Schlenker and Mr. Temple. One is to correct the misconception that the project has in any way changed since the original hearing. This site plan was before the Zoning Board back in February, it hasn’t changed at all. The need for the variance came up when the Planning Department raised the issue. The project has not been changed in any way. The issue here is whether strict Code compliance makes sense in this case and for that I would urge you to consider what the purpose of the buffer requirement is. If there were two commercial uses abutting there would be no requirement for a buffer whatsoever. The buffer is to protect
incompatible uses. The practical effect there is more than adequate buffer provided by this plan than the Code even actually requires. When you consider that the condemned house to the east is going to be demolished and if Mr. Kubarek can buy, he already informed the board that he will keep that as open space there will be 80 feet of affected buffer from this point to the park on the other side and for the board’s information there is no residential use beyond that, beyond that is another commercial use.
To the south is the Schwartz Towers which is over 150 feet away from that buffer and it was respectfully submitted that the purpose of the buffer requirement did not have in mind large apartment complexes on enormous plot of land like the Schwartz Towers. The nearest residential unit is over 150 feet away and is buffered by over 35 feet of buffer under this plan. The point is if even granting these variances this property is more than adequately buffered from any residential use. So there is no harm to anybody, certainly not to the character of the neighborhood or any nearby residential property to grant the variance.
I would also stress that it is not true that in fact this is the minimum variance that could be granted and still provide the benefit to the applicant. This property is needed for the safe and efficient movement of the vehicles through the carwash facility. If he doesn’t have that can’t do the expansion. He can’t do the expansion, he has already told you it is going to be hard to remain competitive. What happens then if he is driven out of business, certainly it is going to be a lot worse than what we think. Isn’t that a very very attractive facility much more so than the alternative which includes a house that has been condemned by the City, you have some photographs here of
that house if you want to look at it. We think that this project is considering more attractive than the alternative and therefore we respectfully urge that the variance be granted at the appropriate time to allow the applicants to expand their business, improve the tax base of the City, allowing obtainment of adequate buffers to any nearby residential properties.
Mr. Kubarek: I just have one thing to add, Mr. Schlenker commented that for himself and his elderly neighbors about their health, welfare and safety, the elderly neighbor that he is talking is next door and his name is Bill Maurillo. Mr. Maurillo does not have a problem with this project at all. As a matter of fact, Mr. Maurillo asked me if I could put a TV on the front of it so that he could watch the TV while he was sitting on his porch.
Mr. Rejman: You may wish to have him put that in writing.
Mr. Kubarek: I certainly will Mr. Chairman before the next meeting.
Mr. Rejman: One final comment from the floor.
Mr. Kerns: John Kerns, 3097 Franklin Street Road. I am Trustee of Willard Chapel. I just want to point out a couple of things that Mr. Kubarek’s lawyer mentioned that I think you should be leery about. First up I think he mentioned the intent of the buffer that was created more for a small-scale residential neighborhood and I don’t think you should necessarily take someone else’s view as to why a buffer was created. I don’t think there is a buffer tall enough that could keep someone on one of those upper floors of the Towers from seeing lights created from this carwash, so in that regard I don’t think there could be a buffer larger enough to shield them from what is there. Also, I warn you I
think you ought to be warned that really that vacant that is contingent on purchase or acquirement really shouldn’t be part of the picture here, that shouldn’t be part of the thought process. That is not – that may be a buffer, that should not be a consideration. He doesn’t own the property, that is not a guarantee so please avoid any thought that that might be a buffer from the Chapel or the neighbors.
Mr. Rejman: Thank you.
Mr. Greco: Quickly to address that last point. What that vacant house is also not currently a residence in use. It has been determined unfit for human habitation by the City of Auburn and therefore it could not be used as a residential property by any person and it will be demolished. So there is no reason to consider that property as requiring a buffer.
Mr. Rejman: I think I have one last comment coming down.
Mrs. Schlenker: Nancy Schlenker, 75 Seymour Street. My husband was referring to Pearl DelFavero, who lives next door who is the one that said she didn’t want it there, she is elderly and didn’t want to come out. They live together, they are brother and sister.
Mr. Rejman: OK, that would be good to have her put something in writing.
Mrs. Schlenker: The other thing I hope you don’t compare an ugly old house to having cars driving in and out in front of your house all the time. If they want to make more money, they obviously are thinking they are going to have a lot of cars coming in and out of there, that is right across the street from our house, I don’t see how you think it is not going to affect us at all, pollution wise and noise wise everything. Just because we are one family who lives there we don’t count. We really feel bad about that.
Mr. Rejman: All right I think at this time we have taken enough testimony. It doesn’t seem as if there is anyone else that wishes to speak. We will close the public portion. Nancy, should we vote on tabling?
Ms. Hussey: Yes.
Mr. Rejman: We need a motion to table please.
Mr. Westlake: I would like to make a motion that we table this item until the next meeting.
Mr. Darrow: I’ll second that.
Mr. Gentile: Why are we tabling it?
Mr. Rejman: Because the SEQRA is not done. They are going to Planning tomorrow. We will get some input from them.
VOTING IN FAVOR: Mr. Gentile
Ms. Marteney
Mr. Darrow
Mr. Sincebaugh
Mr. Westlake
Ms. Aubin
Mr. Rejman
Mr. Rejman: The application has been tabled. See you again in three weeks.
Mr. Darrow: Mr. Chairman, concerning this when we meet again next month, seeing we advertised it for this month, we heard input pro and con. We have closed the public portion. Will we be evaluating SEQRA review, Planning recommendations amongst ourselves before we make our decision or is there going to be a whole other public hearing on it?
Mr. Rejman: Your thoughts?
Ms. Hussey: My thoughts are put it on the agenda to give proper notice and to open it up to comments. There may be additional comments that are provided by the Planning Board, there may be some additional comments based on their comments
Mr. Darrow: So basically we are going to do what we did tonight?
Mr. Rejman: What we will do is ask for additional testimony something that hasn’t been given to us already, additional, new and improved sort of thing.
ZONING BOARD OF APPEALS
MONDAY, JUNE 2, 2003
204 Genesee Street, R-2, use variance/determination of economic hardship. Brendan Grillo.
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Mr. Rejman: 204 Genesee Street, please. Yes, state your name for the record please.
Mr. Contiguglia: My name is Dave Contiguglia, I am here on behalf of Sam Giacona, who couldn’t be here tonight, for Brendan Grillo whose application or actually whose matter is before the board. My understanding was is that there was an Article 78 that was commenced. The matter before the Cayuga County Supreme Court and the determination of the Judge was made to remand the matter back to the Zoning Board of Appeals for the purposes of making specific findings in regards to economic hardship.
Mr. Rejman: Counsel (to Ms. Hussey) is that your understanding also?
Ms. Hussey: That is the correct. Upon a motion by the Respondent Brendan Grillo and upon hearing the oral arguments Judge Fandrick remanded it back to the ZBA for again special further findings on the issue of economic hardship.
Mr. Rejman: OK. I assume we have some additional information to look at?
Mr. Contiguglia: What I did was prepare with Mr. Grillo’s help itemization of his investment in regards to this project. I will wait while that circulates around to all the board members.
Mr. Ryan: Will a copy of that be made available to the public?
Mr. Rejman: Do you have additional copies?
Mr. Contiguglia: I just have these copies.
Mr. Rejman: We will have to make these available. Get together with Counsel later on. Figure out the easiest way to get that.
Mr. Contiguglia: Brendan Grillo’s concern is basically this. He was as you know, putting together a project for 16 units and working closely with his architect, who is here tonight, as well as with former Code Enforcement Chief Officer, who is also here tonight, Jim Moore. What was proposed was that if Mr. Grillo purchased 206 Genesee Street there would not be a need for a variance. So what you have before you is a listing of the expenses that Mr. Grillo incurred in the purchase of 206 Genesee Street. The first one being the settlement statement from the closing, where he paid, he was required to come up with I believe $79,424.41 for the closing costs for a property that had only three units, two units were
condemned.
The next document that you come across is from his architect where the fee for redesigning which is basically towards the lower portion of the page where you see additional architecture engineering fees for services provided. These redesigns were for the purposes of submitting twelve units to sixteen units plan for a total of $6,286. I believe on this form it is also worth noting that Mr. Grillo is proposing to have to pay close to $50,000 for engineering on the entire project.
To keep this property insured which is the next bill you find a receipt from his insurance agent, Mr. Moran, for $655. Then we begin to get into a listing of individual things that Mr. Grillo did to improve the property which was not in good shape at the time he purchased it. You will see that he had to put in some new carpet for $695. You will see that the next two bills – his roof had to be fixed by Dana Bontindari – one was for $5,850 the next one was for $4,200. The rest of the receipts are from Wal-Mart and Lowe’s which details his improvements to the project or to the home since he has owned it. When I tallied these I get up to approximately $6,200 some odd dollars for his investment
just what is there from the Lowe’s bills and for the few bills from Wal-Mart. The roofing came to about $10,050, again the architect fees were $6,286 and then he has the price that he paid to acquire the property.
In addition to that, Mr. Grillo because he wants to have the 16 was counting on having the 16 units based upon the representations that were made before the purchase has not been able to rent two of the apartments that are in the 206 Genesee Street because for fear of not being able to qualify for the 16 unit apartment. With that he has been losing, I spoke with him, he said he would rent the studio if it were rentable for $300 a month and the large two bedroom he said he could conservatively could rent for $550 a month. So he has basically been incurring about $850 a month lose for the 9 months for $7,650.
We are talking about a figure that is well over $100,000 based upon a representation that was made and the desire early on to work with the City not against the City, to cooperate with qualified professionals such as the architect and engineer to bring this project together then to find out sadly that it was not sufficient and that he was required to make a further adjustment.
I would say that it is also worth mentioning that the different for Mr. Grillo’s project for the 16 unit being $39.77 a square foot and the 12 unit being $33.32 a square foot basically shows that through a minimum of investment he certainly could realize a better return, but that in of itself when considered with all the expenses here that he has incurred, we are saying we are providing the board with information, providing the board with dollars and cents evidence of what he has laid out and asking the board to make specific determinations that affect these submissions that he submitted tonight are in fact proof of dollars and cents hardship that he has incurred in getting this property which was in difficult shape which according to Mr. Grillo he would never have purchased under basically gun
point, but would have waited probably to pick it up at a foreclosure sale or at a later time because the property was run down and in poor condition. The only thing that it provided to him was it provided him with the ability to go ahead he thought with this project based upon representations that were made. If the board so chooses Mr. Walton is here from the architects as well as Jim Moore is here, former Code Enforcement Officer. They can speak on behalf of this as well.
Mr. Rejman: OK. Questions from the board at this point?
Mr. Gentile: All these receipts from Lowe’s here, these are all for 206?
Mr. Contiguglia: Yes.
Mr. Gentile: How do we know that?
Mr. Contiguglia: I spoke with Brendan and reviewed it today and that is his representation that those are in fact for that property.
Ms. Marteney: What was the total again?
Mr. Contiguglia: I had a little better than $6,200 for that – Lowe’s and Wal-Mart that is separate from the roofing, separate from the architects, separate from the insurance, that might include the carpets.
Mr. Rejman: Is there any other party that wishes to give testimony for or against?
Mr. Ryan: My name is Kevin Ryan, I am an attorney, I represent Joseph Camardo who is a resident of Ross Place which is across the street from the planned expansion of this project. I am the attorney that brought the Article 78 on behalf of Mr. Camardo, to which Mr. Contiguglia referenced and the basis of the Article 78 petition that I brought against this ZBA was this. This application is for a use variance.
As indicated in a memorandum which I just handed out there are certain things which must be satisfied in order to get a use variance in the State of New York. One of which is significant economic hardship. Now it is not enough for a party to sit here and say on an application for a use variance that we can make money with the variance or we can make money without the variance, we can make more money with it. That is essentially what they are saying. In January 2003 their architect William Walton in response to a specific question what the economic hardship was, testified that, we can make a return with the 12 units, we can make more of a return with 16 units. Nothing that they have submitted tonight chances that fact. In fact, I think Mr. Contiguglia just alluded to
that again. Now they have submitted a whole bunch of information to this board tonight something that I haven’t seen, so if the board is un-persuaded by anything that I have to say here tonight, I ask that you at least table any decision to allow people to review the documentation that they have submitted. I mean you already had one question raised by a member of the board, there is not even any proof that these costs were incurred by this particular project. But that is fine, that in of itself is fine.
Again in order the requisite economic hardship to get a use variance you need to establish the specific economic harm. They have not done that. As indicated in the memorandum they can make a return on the 12 units, they don’t need the variance that they are seeking to get an economic return on this project.
Now they made it a point that Jim Moore told them that if they bought the property on the corner they wouldn’t need to get a variance. Well that is fine as well. That doesn’t change the fact that again they still can make an economic return if they do not get the variance. They can keep doing work on the project and keep record of the cost so that at some point it will become a necessity to get the 16 units in there to enable them to get the variance, but again, I would submit at that point it becomes a self-created hardship which is also grounds for denial of an application for a use variance.
I ask this board again to recognize the fact again nothing was changed. We have yet to see that they need this variance to earn an economic return on the project. Until this board sees that type of proof this application must be denied.
Mr. Rejman: Couldn’t the argument be made that because an additional $100,000 in expenses on this project were incurred that the return on assets, however you want to call it, that the additional $100,000 in expenses it pushes back the pack back to a situation where it would be un-wise to move into that?
Mr. Ryan: It would be un-wise?
Mr. Rejman: There comes a point in any project when you start putting pencil to paper and looking at your costs versus your income, that sooner or later that it just tips to the point where it is a viable project. Wouldn’t the $100,000 tend to do that?
Mr. Ryan: In response to that I could say that one could make that argument but I know that the applicants themselves have not made that argument as of yet. Again, the testimony is that they can get a return on the 12 units, they can make more a return with 16 units.
Mr. Rejman: Isn’t the question reasonable return? Not that there is a return or not, whether it is a reasonable return on your investment. Couldn’t the $100,000 push that past the point where there is no reasonable return?
Mr. Ryan: That would be a question that would have to be decided by Court, but again with the case law of the State of New York, I think this is what Judge Fandrick alluded to is the fact that as long as you can make a return on the 12 units you don’t need the variance, that is not sufficient grounds. Also to point out that these costs, the laws of the State of New York is pretty clear what you need to do to get a variance and what you don’t, what is not sufficient. You sit here and talk about costs going up, costs going up to the $100,000 threshold, that is a self-created hardship. I mean, just because you keep putting money down a black hole that you can get your variance.
Mr. Rejman: It wasn’t self-created
Mr. Ryan: The previous Code Enforcement Officer gave the applicant an incorrect directive, that is not something the residents of that neighborhood should be forced to bear the burden of. You can’t give an incorrect directive and say you don’t need the variance
Mr. Rejman: Wasn’t it self-created at that point because he believed the recommendation from a City official?
Mr. Ryan: I submit that the applicant had a duty to check the validity of the recommendation given to him by Mr. Moore. Again, you are asking the residents of the neighborhood to bear the responsibility of Mr. Moore’s mis-statement. That is not reasonable.
Mr. Rejman: All right, just filling up the record some questions, helping us to come to a conclusion. I saw some other people interested in making comments.
Mr. Mills: Hello, my name is Darryl Mills and I reside at 106 Ross Place in a beautiful City and quaint community of Auburn. I am thankful for the opportunity to be in tonight once again to give the community members my views and insights to the problems regarding the expansion of the Bel-Air Apartments complex and I hope I may be heard in a new light.
No hardship, no variance. As you know the ZBA may have been in error and I would like to thank Mr. Camardo and Mr. Ryan for their diligent to bring this to the attention of the ZBA, Planning Board, Mr. Grillo, Mr. Giacona and the rest of the community. The argument is now over hardship on the part of the applicant. Can I say no one has taken into account any future hardships on behalf of the neighbors on Ross Place and Genesee Street if this site becomes developed as proposed. I for one live in an old large 4 bedroom single family home and would be forced to live in the shadow of a building that does not represent the community and will add to the already over crowded and over populated area for the people of this
community.
My home is surrounded by numerous 2 and 3 family houses and apartments and half the houses on Ross Place have 1 or more families living in them. Not counting the buildings and complexes, the three Bel-Air Apartments, Murphy Building, Genesee West Apartments, Tarsens Apartments, apartment building at 230 Genesee Street and White Birch Apartment complex on the corner of Genesee and Jefferson Streets, also Oak Creek Town Homes is about two blocks, not including the numerous two and three family houses on Woodlawn, Fort, Westlake, Genesee and Washington Streets.
Noise, what about the noise? More cars, more people, more noise. These buildings are also proposed to have second floor balconies, you can put speakers up high so more people can hear them at a better distance.
Mr. Rejman: Mr. Mills, we are just here basically to look at hardships
Mr. Mills: Forget all that the argument shall be about hardship and the three unit building adjacent to Bel-Air that Mr. Grillo purchased of his own free will. Mr. Grillo purchased this property on the mistaken belief by Jim Moore that if he purchased this property he will not need a variance, but they were not smart enough to count the existing three units of the property purchased and it turned out that he still did not have the square footage to continue and he still needed a variance. He did not purchase this property for a right of way for utilities as there are three right of ways bordering my property with access to Ross Place. He did not purchase this property
Mr. Rejman: Mr. Mills, economic hardship please.
Mr. Mills: I would like to ask what his $100,000 investment in the property next door was worth anything.
Mr. Rejman: Thank you. Anyone else wishing to speak for or against?
Mr. Temple: Gary Temple again. I would like to bring a little historical perspective to this. At the time of this application was first brought before the board, I remember the feelings of some of the members, Ms. Marteney, being one, that she said we haven’t seen any financial evidence. It was asked of the attorney, Mr. Giacona at that time to submit competent financial evidence of economic hardship. I would submit to you tonight that what you heard was a lot of evidence of financial type, I haven’t seen what you have seen, I am at a disadvantage perhaps there is something on there that shows more than what it was that counsel for the applicant said earlier tonight. From what I heard I heard a couple things that
struck one.
One, he said that the property that was acquired recently was with 2 units that were condemned I think he said if those 2 units were rented that was a figure of $850 a month, self-created hardship would have to be considered where you normally and willfully decide not to avail yourself of an asset or the development of an asset which would bring return, so I would submit to you that the $850 a month figure is very questionable indeed when you measure against the requirements of the law that speak about self-creation of a hardship. I also would wonder about that particular aspect if this board was to grant the variance that is requested to build the new units, what is going to happen to those 2 units that are now being held aside
for purposes of this calculation? I would submit that again we are looking at this segmentation type of thing. If the variance is granted I don’t understand that there would be anything that would prohibit him in the future to going and getting a C of O for those 2 units and renting them. I think you have to look at the whole picture.
As far as the idea of self-created hardship is concerned, this applicant had barely well he had purchased the property and owned it for a very short length of time when he first came before this board. If I buy a piece of property and I mortgage it for say 20 years or if I ask the bank to give me consideration on a 10 year note, the same amount owing, I can make that look however I want it to, I can make it look like I have a really steep mountain to climb by getting a 5 or 10 year mortgage. I would submit to the board that what occurred here is that Mr. Grillo purchased this property at a price he agreed to and I am talking about the Bel-Air Apartments now specifically, he purchased this property knowing what the income was
from that property. I heard nothing here tonight about what he is getting from the 12 units that he currently has, I didn’t heard anything about that. That is why I am saying we don’t have competent evidence with economic hardship.
Going back when he purchased it, I don’t know if he took a mortgage out or if he didn’t, but he knew what his cash flow was going to be on the receiving end and he knew where his out go and he should have known all of that including the fact that when you buy property you buy certain property ownership rights. Stated on the deed of the property that you purchased is that you buy it subject to the rights conveyed to by zoning, rights and restrictions of zoning. So when he bought this property he knew what he could do with it or he should have known what he could do with it. So by buying it and then coming before the board as he did at the time when it was initially bought and saying I can’t make a good
return here, I have an economic hardship, this is the height again I submit of a self-created hardship if any and I have never seen the numbers that indicate to me what the cash flow amounts to on the 12 units that was the original genesis of this whole project. So I think no economic hardship has been shown because there has not been a complete showing of income only the expenses. I think Mr. Ryan stated it adequately that he said there is no limit to what a person could spend, you can spend and spend and spend after the point when you buy property, knowing what you can do with it, it becomes a category for poor investment and it is not in the category of becoming an economic hardship for the purposes which this board has to consider. Questions Mr. Chairman?
Mr. Rejman: No.
Mr. Temple: Thank you.
Mr. Darrow: I think it would be wise if we perhaps recommend tabling this for two reasons. (A) So that Mr. Grillo has opportune time to give a full and complete exhibit of any economic hardship so that we don’t end up again back in Court and
(B) So that Mr. Ryan can review what was submitted this evening.
Mr. Rejman: I agree, but I would like to have a closing statement, then we will close the public portion and discuss that proposal.
Mr. Contiguglia: Just a few items to touch on. First of all the board has to define our purpose here tonight – determine specific findings of economic hardship. What counsel for the appellant has put forward tonight is a really incomplete review of case laws which were brought before the Judge in this matter. That is there are cases in New York State where an individual relies on a building permit, for instance, even if it is illegally issued or a legal permit, based upon somebody working with the City and invests money the Court is not going to penalize somebody for investing money based upon good faith reliance on that. I have to say and to remind us the facts and figures that you have before you are
based upon a reliance on a representation and with a goal in mind, the goal is to achieve a development of his project at 16 units and it wasn’t the matter of somebody sitting down and putting together a sketch, it was through cooperation of professionals to works towards this project.
The Corporation Counsel has our memorandum of law that was submitted in this regard. The Corporation Counsel also has a phone log that was submitted showing Mr. Walton’s conversations day by day with the Code Enforcement Officer, but unfortunately this is not treated when the appellant’s attorney comes up and makes representations. Instead it is an ironclad presentation that somehow we are going to ignore the law that deals with this situation and only focus on laws beneficial to his party and his case.
Secondly, a lot of the repairs were necessary that you have that paperwork to obtain a C of O for the property. The property situation when that property was bought and sold was very adversarial with the sellers not going to make a typical concessions that a seller would make to furnish a C of O to the new buyer because the seller knew that Mr. Grillo had this in mind and was going to charge the highest price that she could. So Mr. Grillo needed to make repairs to realize some type of income and not impose a significant hardship on himself in the months that were ahead. If he did rent out all 5 then in fact he would be blocking himself from proceeding with his project which was the basis for the whole purchase to begin
with an investment. So to look at this and to say that because he hasn’t rented 2 of the apartments it is self-imposed ignores what his ultimate goal was from the day he came to buy the property through the advice of the City and through the advice of his counsel and architect and engineer, when you look at that whole picture together that is where we are seeing somebody who is told it is ok to invest $100,000 and in good faith, this isn’t a trick, this is something done in good faith and then being told well that is not enough be people who are opposed to the project. I don’t believe that is a reflection of the laws of the State. I feel it is a selective application by those opposed of the laws or decisions that they choose to favor.
Mr. Rejman: Thank you.
Mr. Darrow: I would like to make a motion that we table this item until the next meeting for the purpose of giving Mr. Ryan ample time to review what was submitted and giving Mr. Grillo ample time to give a complete summary of financial hardship and not just a stack of receipts.
Mr. Westlake: I’ll second that motion.
Mr. Rejman: I do understand that we have information on 206, however, I don’t see a Performa on the project, and I would like to see a Performa on the project with 16 units and with the 12 units.
Mr. Ryan: I would like a request that you are going to table to allow me to have an opportunity to review documentation and to allow Mr. Grillo to submit something else in ample time to give me the information so that I may review.
Mr. Rejman: The information will have to be submitted to counsel.
Mr. Ryan: Can I make another point? We are here tonight because in January this application was heard
Mr. Darrow: Point of order. Motion on the floor.
Mr. Rejman: We have a motion on the floor.
VOTING IN FAVOR: Mr. Gentile
Ms. Marteney
Mr. Darrow
Mr. Sincebaugh
Mr. Westlake
Ms. Aubin
Mr. Rejman
Mr. Rejman: Motion to table approved.
Meeting adjourned at 10:00 p.m.
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