ZONING BOARD OF APPEALS
MONDAY, JANUARY 26, 2004
Members Present: Mr. Darrow, Ms. Brower, Mr. Westlake, Ms. Aubin, Mr. Rejman,
Member Absent: Ms. Marteney (called)
One Vacancy
Staff Present: Ms. Hussey, Mr. Hicks, Mrs. Hoffmann
APPLICATION DENIED: 92 Fitch Avenue
APPLICATION TABLED: 280-284 Seymour Street
Mr. Rejman: Good evening, this is the Zoning Board of Appeals. Tonight we have on Agenda: 92 Fitch Avenue and 280-284 Seymour Street. Both are held over from last month.
92 Fitch Avenue, R-1A, use variance for three units. Rodney Major.
Mr. Rejman: 92 Fitch Avenue, are you here?
Mr. Major: Yes.
Mr. Rejman: Step forward please.
Mr. Major: Good evening, my name is Rodney Major, I reside at 61 Chapman Avenue and I am here to try and get a variance for 92 Fitch Avenue. I brought some more paper work with me. I apologize I didn’t get to Mr. Hicks, but I hope to use this as a workshop to do this with you guys. You do have some of the information; I already presented some of the information to you guys.
Again, I am here to try to get a variance for a 3 unit at 92 Fitch Avenue. Just to tell you how I came across this property, back in October of 2002 I came down to the Assessor’s Office to check into a property on North Division Street for a Church that I wanted to inquire about. While I was down here they showed me this property was up for sale and they said the minimum bid of $5,000.00. The reason why I took an interest in this property, not to become a rental – landlord, not to rent it out, but it butts up behind the property almost butts up behind the property I live on Chapman Avenue. I own property on Chapman, from 59 Chapman to 69 Chapman, it is just property. I have a house on 61 and a house on 69 that I rent out. The purpose of buying this property was to use it to
start a ministry on the west end of the community. So they told me about this property, the minimum bid of $5,000.00, so I said if it is a minimum bid of $5,000.00, let me go bid on it. Before that they wanted me to see the house. They showed me the house and I thought I was the only one that was going to see it, but there were 8 other couples there to see it. I didn’t think I had a chance to bid, I didn’t think I had a chance. I put a bid in for $6,000.00, I was the only one that bid on the piece of property – I got it. Now, I really didn’t have the money, so I borrowed the money from my 401K to secure the property.
At the time it was a big house I was thinking, I still wasn’t thinking of renting this property out. I was thinking about using it for my family. At the time it was my Mother, my Aunt, and my brother and two cousins were all in the same house and they weren’t speaking and I thought this would be a good idea to break up the family and they all could live, you know, certain people could live in this house. That was my intention and to use that main acreage still for the ministry. Well, I was working two jobs trying to do this and the family did not want to come together, so that didn’t happen. So in May I came before the Planning Board thinking that what I would do is use one side for the ministry and the other side to rent out. Sounded like a pretty good idea.
During the summer time I got to thinking again, this is going to be a lot of work to convert it. It would be better off for me to start the ministry on the opposite side on Chapman because I have more land more in a rectangle area and for me to more into one of the apartments on Fitch Avenue. Over the summer I was mowing the grass, I liked the scenery and I wanted to live on the other side, more like a bachelor, my house is big more like a family house. So I said let me try for a 3 unit because at that time I didn’t see how I was going to convert the upstairs and downstairs apartment, which would be the brick side. You have an apartment here and an apartment up here (points to photo). This would be apartment #1 and apartment #2 and over here would be apartment #3 (points to
photo). I didn’t really see how I was going to convert that.
If you turn to the second page, I just brought this, I don’t know if it will help me, but ever since 1965 before 1965 this piece of property was a 3 unit. It just went back to a one unit because of a technicality because the guy let it go for back taxes and it went back to the original state, the house was build in 1885. Throughout the years, Mr. Hicks walked through the building with me. What we can assume, this part here this is all brick and beyond that is all wood structure. This probably was the main house at one time. Throughout the years they build another part a wood structure onto the house to make into 2 apartments. As you see the floor plans, turn to your fourth page, no fifth page, where it says apartment #1 on the west side downstairs, you see as you walk in the door
you walk into a living room, a dining room, kitchen, bedroom, bedroom and bathroom. If you turn to your next page again you see apartment #2 and that is duplicated the same way. From my understanding as we look at it, from the kitchen and back is a wood structure that eventually they had added on to make this into a two apartment house at one time. Then as we move onto the next page, you will see the east side, which will be this part; they eventually added that on to make that into another apartment. So what I am saying, it wasn’t a big house at time and they converted it into apartments. Like somebody built this big house and then they moved out and somebody came in and chopped the big house into apartments. As years went by they intentionally added on these apartments, added on to make it into an apartment house. It wasn’t a bid house that we converted into an apartment house.
Maybe I did create a hardship for me, I didn’t do it intentionally. I guess I had a dream, I had a vision, I didn’t realize how much work it would going to be to convert. I tried my best to see what the layout was, how the rooms fit together, how the bedrooms upstairs connected. As I said to Mr. Hicks when we went upstairs, I said Brian, please help me figure out how to remake the living room, dining room and kitchen into a 4 bedroom or 3, make the upstairs into a 4 bedroom. You would have to knock out a lot of walls, bearing walls I believe, redesign hallways; the bathroom is way in the back. You have this big living room; to me I financially I don’t have it. I live from paycheck to paycheck.
If you go to the next page, Mr. Bouley was kind enough to make up a cost of some of the stuff that I already did to the house to secure this house. I went ahead to secure it because it needed, after sitting for two years there was a lot of damage done to the east side apartment and in the west side apartment we had squirrels and raccoons and stuff like that. Plus when the guy left I think he brought, there were old radiators, the steam radiator heaters that you use to have in City Hall, there were 18 of them, and he cracked every single one of them except for two. So we needed to get heat in that side, new water base heat to replace the old radiators.
I also had to bring some electrical service up to date in order not to get fined by Codes.
If you turn on to this page right here (shows photo to board) some of the stuff that Mr. Bouley was kind enough to do, I don’t want to say donate, we have a gentlemen’s agreement, that once I can establish myself I will pay him for some of the work that he does. Some of the work has not been done on page 1, I consider this page 1. Basically what we did, we did a lot of work just to secure this place to pass Code inspection so that we could get some tenants in so I could bring some income in to continue to put money into the house. All these apartments were suppose to have 2 bedrooms in it. Mr. Hicks told me that the apartment on the east would be a 1-bedroom apartment because the second bedroom does not have a ceiling height, so I cannot use that as a bedroom. But the other
bedroom I could use. None of the rooms in the house really connect. Each apartment is like really separate, the only thing that connects that whole house together is the basement. You can get to each apartment from the basement that is the only thing that really connects the apartments together.
My intention is to market these apartments as definitely this one as a 1 bedroom, before Mr. Hicks came, I was intending to market these two as 1 bedroom and keeping that second bedroom as a den or study. My purpose is not to have loud people living this particular house, especially if I happen to move into the upstairs apartment, which I painted, because I thought I was going to be moving there. All the money I get from the rent will be going into, I am not trying to make a profit, I am not a landlord I am not a rental person, I am not in the rental business. I bought this property for the purpose of establishing a ministry and to improve the neighborhood and keep it up to standards. My neighbors on the sides both like my ideas, they like it, they do not want me to convert this one into a 4
bedroom. They do not want a big family there. I don’t want a big family there, but if I have to put a big family there, I will put a big family there. I will not move there not because I don’t like it, but I already have a 4-bedroom house with a lot of land. It doesn’t suit me to move in that one, the design doesn’t fit, the layout just doesn’t fit. It will take me years to reconstruct to redesign this. I did bring my pay stubs and other personal items if you need, I did not want to put that on paper and hand it out. I guess I was supposed to create a hardship.
Mr. Rejman: I think this presentation is very good, something that we have been looking for the past month or so. Brian would you speak to the section, because one of the big concerns that we have was exactly how difficult would it be to convert this back. In your opinion.
Mr. Hicks: The pictures he brought tonight, the section to the left the short 2 story was definitely an add on. To the rear of the second floor is the lower ceiling that use to be a bedroom. He has a ceiling height just under 6 feet. That is not allowed to be a bedroom. There is no way for him to raise the ceiling to meet the square footage to make it a bedroom, no way. So that would be a 1 bedroom on that side, maybe with the possibility of a small den on the first floor. On the right hand side that is a two-story brick structure with a framed addition off the back.
If you look at the one page that he handed out at the last meeting, apartment 2 upstairs on the north side, see where the stairs lead up, the foyer he has marked 6 foot, then you look at the way the bedrooms are configured and the dining room. All of that would have to be removed, every bit of it, all new hallways put in and you notice that the bathroom is way in the back. Years ago when these were built it was nothing to walk through one bedroom to another bedroom, lot of houses were built like that, that is no longer allowed in the Code to go through one bedroom through another bedroom to get to the bathroom. This whole floor would have to be totally reconstructed and you are not going to add any space, all the bedrooms are very small to begin with, 9 x 12, 8 x 11, he needs a minimum of 80 square feet
for 1 bedroom, 120 minimum for 1, so at best there is a possibility of this becoming a 3 unit with only 1 bedroom per unit. Possibly a small nursery with 1, but it would not be allowable for large families. I think this is what Mr. Major was heading for, he wants small families, basically couples. The only other way would be to completely reconfigure this whole brick side and that would be for a large family, at that point there would be 4 to 5 bedrooms. Now we are going to increase the density of the neighborhood.
Mr. Rejman: So in your opinion,
Mr. Hicks: Costly and not feasible.
Mr. Rejman: Costly and not feasible and it looks like we are looking at three – one bedroom apartments here then?
Mr. Darrow: Am I correct that he is only looking for two apartments?
Mr. Rejman: Three.
Mr. Darrow: You want three. I have from a single family to a two dwelling unit.
Mr. Rejman: That was the original.
Ms. Hussey: The board already granted a use variance to Mr. Major from single family to a two family. Now he is applying to the board again converting from a two unit to a three unit.
Mr. Rejman: Because of what Brian just told us, just can’t do it. Questions from the board? None. Anyone wishing to speak for or against the application? Yes, step forward. State your name please.
Mr. Tardibone: Steve Tardibone, I own a house two doors down. I am not against your giving it to him, but I have a question. I also inquired about the property. They said it was a $5,000.00 minimum bid, no problem, but I said is it a three unit, the City said no way it is not going to be it. If I knew it had any potential to be a two unit or three unit, I would have bought the property myself. If you give it to him, that is fine. But I wish they all would be granted because the next time I would get a chance at a property the City says no can’t be a two family or three. I actually knew the people for years and years that use to live in the house and it has been a three family for thirty years, I knew that, so when the City said and I talked to the Codes Department, they said
no way it has got to be converted to a one. So I dropped interest. I had been in the house many times and I would have bought it no problem, but to deny him, it is up to you and no big deal to me either way.
Mr. Rejman: Thank you.
Ms. Hussey: What Mr. Tardibone just expressed is accurate, the house was vacant and condemned and it is in a R-1A district, and single family homes are permitted, multiple family homes are not permitted, even though it may have been built as a multiple family home, once it was vacant and condemned for a period of over six months it became a non-conforming structure. Mr. Tardibone is accurate in that the property was marketed as a single family. Mr. Major I believe was aware of that and he stated on the record that he was aware of that and the only relief that is afforded any purchaser of that property is to obtain a use variance in order to gain back one unit. That remedy was available to Mr. Tardibone if he chose to do that as well.
Mr. Rejman: Any one else wishing to speak for or against? OK, we will close the public portion and discuss it amongst ourselves. I think we have a unique property and it has a unique problem that Codes has discussed that it would cost a small fortune to turn it into a single.
Mr. Westlake: He has plenty of parking there.
Mr. Rejman: That is the gorgeous thing about it.
Ms. Hussey: Correction, it is not going to a single family, Mr. Major has already obtained a variance as a two family.
Mr. Rejman: OK, looking to go from 2 to 3.
Ms. Hussey: Yes.
Mr. Rejman: Codes again stressed the fact that it would be difficult this into a two.
Mr. Westlake: He has plenty of parking for three apartments.
Mr. Darrow: With me, there is a big area whether the hardship was self-crated and I can understand Mr. Tardibone’s point, but then again, as our counsel said Mr. Tardibone would have had the same recourse as Mr. Major if he was the high bidder. But I do look at it is a two family now, he bought it as a one family, wants to go another one into a three family and is he getting reasonable return that is the key word in what we have to look at, reasonable return on his investment now as a two family, or is he actually losing money, month by month as a two family. Now if there is a reasonable return there is no hardship.
Mr. Westlake: There is nobody in there now, am I right?
Mr. Major: I don’t have a CO yet.
Mr. Darrow: But as it is, say if each apartment was rented for just a hypothetical figure, say $400.00 a month, that would be $800.00 a month. Is that covering bills and expenses with a reasonable profit or reasonable return on his investment that he put in, including his updates the electrical, the plumbing, the actual purchase of the house. Then we also have to look what we are charged to look at, what is a reasonable rate of return. If he has $10,000 invested in the house hypothetically speaking and he is getting over the course of a year 5% return, is that reasonable in this day and age?
Mr. Rejman: Good points. Any other comments, concerns? To move forward I need a motion and a second to move forward on a vote.
Mr. Darrow: We have already, am I correct, adopted a short form SEQRA for this?
Ms. Hussey: That is correct, at the November meeting.
Mr. Darrow: I would like to make a motion that we grant Rodney J. Major of 61 Chapman Avenue, Auburn, property located at 92 Fitch Avenue, Auburn, a use variance for the purpose of establishing a three dwelling unit at 92 Fitch Avenue.
Ms. Brower: I’ll second it.
Mr. Westlake: Do we have to say one-bedroom apartments, we talked about it, should that be part of the motion?
Mr. Darrow: I think that would be Code Enforcement knows what he can have and he will never get a CO, because that one ceiling in the bedroom is too low, Codes cannot give him for more than he can have.
Mr. Westlake: OK.
VOTING AGAINST: Mr. Darrow – on the grounds that I feel it is a self-created hardship and applicant was well aware that it was a single family unit at that time even though taking into consideration costs submitted, no current financial hardship was demonstrated as a current two unit.
VOTING IN FAVOR: Ms. Brower, Mr. Westlake, Ms. Aubin
VOTING AGAINST: Mr. Rejman – based on recent court litigation cases, I would have to vote no on this. I don’t think we have enough background to support a challenge.
Applicant has been denied.
Mr. Major: OK. Thank you.
280-284 Seymour Street, R1A, use variance to convert three units on the property. It was formerly a four unit in an R2 zone. The property lots its non-conforming status because the units were vacant in excess of 1 year and applicant wishes to restore the premises to three units. Area variance of 902 square feet for three units on one lot and possible area variance for parking buffers.
Mr. Rejman: 280-284 Seymour Street. State your name for the record.
Mr. DePalma: Carl DePalma:
Mr. Rejman: Tell us what the issue is here.
Mr. DePalma: Mr. Juhl is seeking a use variance for the property located at 280-284 Seymour Street. This is a property that has two separately constructed two story wood frame houses on it. When Mr. Juhl purchased this property, he purchased it for investment purposes. He had the intent and already has expended a good deal of money as he started the project and also in purchasing fixtures for the property to be used there. He is in a position to improve the properties, he has the ability and the where with all to make these improvements to change this dwelling. It is only reasonable purchasing two separate structures for him to believe that he would be able to have at least two if not more units at this premise.
To me this is not a self-created hardship because any reasonable person would sit there buying two separate parcels two separately constructed properties with sufficient parking off street in a neighborhood that has many multiple dwellings located in the immediate neighborhood. It is not going to do anything as far as the impact environmentally or to change the look or appearance expect to improve this. Again, Mr. Juhl is in the contracting business he is able to do the work himself and intended to do that and he would be left with no choice but to demolish one of the properties or to continue to pay taxes and the maintenance on these buildings in order to keep them both standing. The demolition costs alone would exceed the property value that he paid. To me this would not be self-created and it is
only reasonable to expect two separate structures would be able to house more than one unit.
Mr. Rejman: The properties were purchased how? Though Real Estate, through word of mouth?
Mr. DePalma: Real Estate.
Mr. Rejman: Do we know how they were advertised? Do we have a copy of the listing?
Mr. Juhl: No, just had a For Sale sign in front.
Mr. Rejman: OK, when you went to the agent, I mean the agent must have said that there is, I guess what I am looking at is how was it advertised, was it advertised as a two single family homes or was it advertised.
Mr. DePalma: A For Sale sign alone in front of two houses would indicate you are buying two properties or two houses at least on the same lot. They are not in any way joined they are totally separate and there is a distance of probably 100 feet between the structures.
Mr. Rejman: There is no question about the number of dwellings, the questions is the number of dwelling units, is it being marketed as two multi-family houses or two single houses?
Mr. DePalma: Would have to be marketed as two single houses that would allow him to have two dwellings there.
Mr. Rejman: The applicant is petitioning us to have two units in the front and two units in the back.
Mr. DePalma: Two units in the front and one in the back.
Mr. Rejman: Two units in the front and one in the back.
Mr. DePalma: Yes.
Mr. Rejman: My point is if it was offered for sale as a single family and a single family
Mr. DePalma: You are not even allowing him to do that. You are allowing only a single unit there and the two dwellings. You want him to tear one house down and create one dwelling.
Ms. Hussey: Two units are being allowed on that lot.
Mr. Rejman: Each dwelling being a single-family house.
Ms. Hussey: The understanding was, either the front became two units, single unit in the back or single unit in the front or two units in the back and that is all. There are two units permissible on that lot.
Mr. DePalma: If you allowed the two units in the front you would expect to demolish the structure in the back, is that correct?
Ms. Hussey: That is how it was represented to the Real Estate agent when he inquired at Code Enforcement.
Mr. DePalma: OK.
Ms. Hussey: Is that correct?
Mr. Hicks: Yes.
Mr. Juhl: Reason I have Carl with me, I don’t understand.
Mr. Rejman: OK, it gets complicated. So the issue here is we can have two single-family units on this parcel of property, you can have it in two separate dwellings, you can have it in one dwelling. You can have two dwelling units.
Mr. Juhl: To remodel and make two single-family houses that will cost more than it is worth. To have separate meters, separate furnaces, separate water tank, separate everything and for me to go in and totally renovate both houses and make them single family houses, I will never get the money back that I have invested.
Mr. Darrow: Do you have any cost proposals or estimates of these costs because that part the worksheet that I gave you last month, wasn’t really a fill in the blank worksheet, it is a worksheet of these are the things that we need black and white evidence of, these are the questions we need answered in black and white. These aren’t questions that just can be filled in the blank and the word is gospel. We actually need to substantiate what the answers are. So, by you saying that it is an unreasonable amount to convert both houses to single family dwelling units
Mr. DePalma: To convert into two single-family houses would be in excess of $100,000.00.
Mr. Darrow: That is just the point, we need this in black and white on paper, by a contractor, other than yourself, because you have a conflict of interest, stating that to turn this into a single family unit in the front will cost X amount of dollars. To turn the one in the back into a single-family unit will cost X amount of dollars. But yet it could be kept as a two family for far less. These are things that we need in black and white to substantiate the arguments.
We want to work with you but we also have to think of the zoning, the neighbors, the neighborhood in a whole and if we do not have the proof and evidence to back up our decision then if a neighbor should choose to file an Article 78 in Supreme Court against us, and we could be easily over turned without substantiating all of this. So it may seem like we are causing a lot of work for you, but all that it is, is stopping you from going here getting an approval and then having a neighbor not agree, sue us in Supreme Court over it or take it to a Supreme Court hearing and then losing because the evidence wasn’t there that was required to prove those. I hope I didn’t make that too complicated.
Mr. DePalma: Not at all.
Mr. Rejman: Need to make a dollar and cents argument.
Mr. DePalma: I did not see any of the worksheet that you suggest, I would like to see that if possible.
Mr. Darrow: I gave your client a copy last month.
Mr. DePalma: We filled that out.
Mr. Darrow: Right, but was given to him to explain these are questions we look at and we need evidence of, we need proof of this rather than just fill in the blank. We need proof to substantiate each of these claims, we need something in black and white.
Mr. DePalma: Each and every one I would believe would be difficult to draw enough evidence that you are going to have to – what would you like, a complete overhaul? Canvass of the neighborhood, an evaluation – I think the answers speak for themselves to the extent they are answering the questions.
Mr. Darrow: The big thing that we look at and have always looked at in a harsh stringent way is the financial hardship and if we have it in black and white that the costs would be unreasonable to have them as one family in black and white that goes a long way. That you are not going to get a reasonable return on your investment in black and white.
Mr. DePalma: Which question would that directly answer? On your checklist?
Mr. Darrow: Second question, no reasonable financial return can be derived from this so that is one where we need something in black and white that you have X amount of dollars into the property, X amount in repairs, show X amount turning it into one family units and that makes it nowhere worthwhile.
Mr. DePalma: They should specifically detail what they want for documentation
Mr. Darrow: This isn’t for the applicant’s use, this is something we have as our check list, this was not designed for the applicant, but last time to try and help the applicant out so he knew what we were looking at to give evidence of, and that is when this was handed out. This is not made for the applicant’s review.
Mr. DePalma: How does the applicant have any idea of what you expect of him?
Mr. Darrow: By filling out the sheet, that is why we gave him this.
Mr. DePalma: Right, he filled out the sheet
Mr. Darrow: No, this packet, the whole questionnaire.
Mr. DePalma: May I see that please?
Mr. Darrow: You should have a copy of it, it is what he submitted. I have several copies of what was submitted, one from dated December 8th, these are my only copies.
Mr. DePalma: I will look through them quickly.
Mr. Darrow: Feel free to look through them, but these are the packets that we receive detailing what there is.
Mr. Rejman: This may help. I would like to read a portion of the Zoning Ordinance. This is 305.14 (1): An applicant cannot realize a reasonable return provided that lack of return is substantial as demonstrated by competent financial evidence. Best thing to do is a P&L. Give us a P&L on two units, give us a P&L on four units, P&L with a two unit front, demolish the back, something like that.
Mr. Darrow: Two unit back with demolishing the front. Look at the three different ways that it could be to prove that having the four units is financially the sound way.
Mr. DePalma: What about three units?
Mr. Darrow: That as well.
Ms. Hussey: Three units has to be shown, because that is what the applicant applied for.
Mr. Darrow: Is that what it says, ok, three units. Two in the back, one in the front or two in the front and one in the back.
Mr. DePalma: Any other documentation required?
Ms. Hussey: Suggest you check case law.
Mr. DePalma: OK.
Mr. Rejman: Motion to table?
Mr. Darrow: I make a motion that we table 280-284 Seymour Street to next month.
VOTING TO TABLE: Mr. Darrow, Ms. Brower, Mr. Westlake, Ms. Aubin, Mr. Rejman, Mr. Rejman: Tabled to next month.
Meeting adjourned at 8:00 p.m.
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