ZONING BOARD OF APPEALS
MONDAY, OCTOBER 29, 2007
Members Present: Ms. Marteney
Mr. Baroody
Ms. Calarco (Came late – due to work)
Mr. Bartolotta
Mr. Westlake
Member Absent: Mr. Darrow (Called sick)
Ms. Brower (Called Political Debate)
One Vacancy
Staff Present: Mr. Fusco
Mr. Hicks
Mr. Selvek
APPLICATIONS
APPROVED: 159 Franklin Street
176 Genesee Street
Mr. Westlake: Good evening, this is the Zoning Board of Appeals. Tonight on the agenda we have two items:
159 Franklin Street
176 Genesee Street
Last month’s minutes, any additions or deletions? If not stand as written.
ZONING BOARD OF APPEALS
MONDAY, OCTOBER 29, 2007
159 Franklin Street. R1 zoning district. Kyle and Tami Laukaitis, applicants. Area variance of two feet over the allowed four feet for the installation of a six-foot privacy fence in the front yard.
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Mr. Westlake: 159 Franklin Street, are you here? Please come forward and state your name for the record.
Mr. Laukaitis: My name is Kyle Laukaitis, 159 Franklin Street. What we are looking to do is put a 6-foot fence up where a 4-foot is now in the rear portion of the house. Since we are on a corner we were told that we are considered to have two front yards so we looking to put a 6-foot privacy fence up 60 feet for the corner.
Mr. Westlake: Thank you very much. If you would sit down.
Is there anyone here wishing to speak for or against the application? Hearing none we will discuss it amongst ourselves.
Ms. Marteney: Certainly understandable there is a lot of traffic and if you wanted any privacy this is the way to get it.
Mr. Baroody: I live on the corner of Franklin and Perry, which is just a block up.
Ms. Marteney: 60 feet back, you can see no trees in the front.
Mr. Westlake: Do we have a motion?
Mr. Baroody: I would like to make a motion that we grant to Kyle and Tami Laukaitis of 159 Franklin Street a variance of 2 feet over the allowed 4 feet for the installation of a 6 foot privacy fence in the front yard per said document.
Mr. Bartolotta: I’ll second that.
VOTING IN FAVOR: Ms. Marteney
Mr. Baroody
Mr. Bartolotta
Mr. Westlake
Mr. Westlake: The application has been approved.
ZONING BOARD OF APPEALS
MONDAY, OCTOBER 29, 2007
176 Genesee Street. C4 zoning district. Seymour Library, applicant. Area variance of 25 feet for the placement of an enclosed roofed dumpster in the front yard. (In the parking lot along Bostwick Avenue).
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Mr. Westlake: 176 Genesee Street, are you here? Step to the podium and state your name for the record.
Ms. Fandrick: Good evening, I am Jill Fandrick and I am on the Board of Trustees of Seymour Library and Treasurer and I am here with Sheila Anderson our Library Directors and Stephen Lynch, President of the Board of Trustees. What we are asking for is an area variance for the enclosure that was over the dumpster in the rear of the library. We had a dumpster there, we had to cover it because neighbors were putting trash in it and it was an eyesore and animals got into it so we closed it and it is too close to the rear and side corner so we are looking for a variance.
Mr. Westlake: Very good. Please sit down. Is there anyone wishing to speak for or against this application?
Mr. Potter: I am William Potter; I live at 1 Bostwick Avenue. I am one of the neighbors in the rear of the library. I am on the opposite corner. This is a big improvement of the former trash bin they had there, people were coming and throwing trash in, it was just unsightly, now it is enclosed, looks much nicer, I don’t think there are any problems, certainly not on my part.
Mr. Westlake: Very good. Thank you very much. Anyone else? Hearing none, we will discuss it amongst ourselves. It does look neater, looks cleaner, safer.
Ms. Marteney: With the fence you can’t even see it.
Mr. Baroody: I would like to make a motion that we grant Seymour Library of 176 Genesee Street a variance for 25 feet for the placement of an enclosed roofed dumpster structure in the front yard as presented in the documents.
Mr. Bartolotta: I’ll second that.
VOTING IN FAVOR: Ms. Marteney
Mr. Baroody
Ms. Calarco
Mr. Bartolotta
Mr. Westlake
Mr. Westlake: Application has been approved. Good to go.
Mr. Westlake: Brian Hicks would like to take to us.
Mr. Hicks: The item is 355 – 357 Clark Street and 63 – 65 Belmont Avenue. Granted a use variance for the Berry Family Living Trust, for the congregate care 60-bed location. I believe that some of you may have received applications for a new one that was pulled. There was talk about increasing the bed size but that was pulled. The item that we have that I need an interpretation on is in our Code it is specifically stated that 6 months is the time line for the variance. I am allowed to extend by 6 months, right now the way the application reads, and they cannot get their funding until next year. The applicants would like the interpretation of the Code to determine whether or not they can get an extension
of 1 year. From the information from the Zoning books I understand that a use variance would run with the land. The City of Auburn has put a covenant on that for a building permit that is not issued in 6 months I can grant a 6-month extension but at that point it goes away. So that is what we are looking for is an interpretation a possible extension of 1 year for this use variance that was granted.
Mr. Fusco: I don’t think you can unilaterally give any time beyond the 6 months but the solution is for the board, the board has the power upon a unanimous vote of all of its members to have a re-hearing so that what we could do is you could request a re-hearing and you can do that on notice and as long as the board unanimously agrees to re-hear it and then upon the re-hearing again approves the 6 months would start anew.
Mr. Baroody: We would have to wait until it expires.
Mr. Fusco: We don’t have to wait until it expires, it is just that Brian wouldn’t have the authority to say well I will make 6 months, 7 in this case or 8 in this case or whatever to get the financing, wouldn’t be able to do that.
Mr. Baroody: Municipalities use for instance when they are waiting for NYSERDA money, etc., there is a tool of some sort that they use to extend it for 24 months, I don’t know what it is
Mr. Fusco: I don’t know what it is either, I know because his is a ministerial office he doesn’t have the discretion to go beyond 6 months, he can’t go 6 months and a day. So there may be other solutions that I am not aware of and I can take a look at that, Steve may have some ideas as well, but it would seem to be, it was already approved right, the easiest way to do it would be to have a motion to have a re-hearing and schedule the re-hearing within 6 months of when you are going to get the financing approval, is that what we are waiting on?
Ms. Didio: We were denied the grant last year so this year we are reapplying the application goes in February, the grant announcement will be the end of August the beginning of September. I believe we have 6 months and that is running out, is that correct Brian?
Mr. Hicks: It is going to expire.
Ms. Didio: It is going to expire so even if we are granted another 6 months, it is not doing anything for us.
Mr. Fusco: If you were my client and you came to me with this and asked what should I do, as long as you have a friendly board, the only solution that I am coming up with, is you have to have a unanimous vote to have a re-hearing, even though and I think the reason for that unanimous standard is usually when there is a re-hearing they are going to re-hear and make a different decision, there has been come change in circumstances or some fact has changed that is usually where you see re-hearings before the Zoning Board of Appeals. This presents the interesting case that is it likely going to resolve you just want to start that 6 month period over again, was it a unanimous decision of approval on the first time?
Ms. Marteney: No, not a good think to open up again.
Mr. Bartolotta: Plus she is looking for more than 6 months isn’t she?
Mr. Baroody: Unanimous of all board members or all board members present?
Mr. Fusco: All board members present. That doesn’t bind you to vote for or against ultimately, give an opportunity to present so that the 6-month period for the issuance of building permits starts anew.
Mr. Baroody: The way the schedule fell last time you couldn’t get disapproval to apply for the funding until after the deadline in February or whenever.
Ms. Didio: Correct. We did have the approval from Zoning and Planning, the application went in in February, the announcement was made the end of August. We did not receive funding, another agency in Auburn did receive funding, we will reapply this grant period which the application is due again in February and the announcement is made the end of august 2008.
Mr. Fusco: What is to keep you from getting the building permit now and not building?
Ms. Didio: I don’t know.
Mr. Hicks: Building permits run in 6-month periods also.
Mr. Fusco: Don’t you have authority in the Code to extend that?
Mr. Hicks: Right, I need to have some kind of documentation or work being done at this site in order to extend to show that there is some kind
Ms. Didio: There is no work being done on the property.
Mr. Hicks: Under Section 305.14c, subsection 3 it says: “unless otherwise specified by the Board of Appeals, decision on any appeal shall expire if the applicant fails to obtain all necessary building permits or comply with the conditions of such permit within 6 months” and the portion that I have unless otherwise specified
Mr. Baroody: Question for the chair, can we ask now for a re-hearing 1 month before the expiration, I am sure we would get a unanimous vote now.
Ms. Marteney: Bring all the neighbors in again, I think it is going to be
Mr. Baroody: That is immaterial
Ms. Marteney: If the neighbors come up with a case
Mr. Westlake: Would we like to make a motion for a re-hearing?
Ms. Marteney: Have to make a specific time frame. Does it say when it has to be specified?
Mr. Hicks: No but I believe it is understood at the voting time on the application.
Mr. Baroody: So now we are looking at if they were to ask for a re-hearing or we propose a motion for a re-hearing you need an affirmative of all the members then you can examine all the other documents and make a decision accordingly.
Mr. Westlake: That is a risk that you would be taking.
Mr. Baroody: Best way to go.
Mr. Hicks: The applicant has not purchased the land, they are not the owners of the property and all of this is to come through at the time of funding. The variance was granted to the Berry Family Living Trust, no so much to the new property owners. What the applicant would like to see that this use variance is granted the extension so that they can get into the next filing period.
Mr. Westlake: I know they had 6 months and you are going to give them another 6 months, when is that 6 months up?
Mr. Hicks: Up at the end of this month.
Mr. Westlake: End of this month.
Mr. Baroody: One year at the end of this month.
Mr. Hicks: The applicant, I don’t have the exact date.
Mr. Bartolotta: What occurs if the funding doesn’t come through again for this?
Ms. Didio: I don’t know, the project may be off.
Mr. Bartolotta: So your organization wouldn’t purchase the property then?
Mr. Baroody: Correct, all of this was pending approval of the funding for the assisted care facility.
Ms. Marteney: Some how could it be worded then because the funding did not come through that an extension can be granted, if that was in the original motion.
Mr. Westlake: I just as soon not have this come in front of us again.
Mr. Fusco: I think to give them beyond 6 months based on the language that Brian expressed we would have had to agreed to potential for extending beyond 6 months as a condition of the variance when we initially granted it to now say ok, we will give them some extra time after it has already been decided I don’t think that would stand.
Mr. Baroody: But we can have a re-hearing.
Mr. Fusco: The Chairman asked me what I thought and I had a case like this earlier this year in the Town of Throop where the board had vote the Zoning Board of Appeals had voted to re-hear a certain item a month or two before the actual meeting and did so with no advance notice just did so like we are perhaps doing right now and I remember looking at it and researching that issue that it was perfectly legitimate. There is not a requirement as I recall that the motion to re-hear be done on notice. Eventually the re-haring has to be done on a notice but the actual motion itself doesn’t have to be.
Mr. Bartolotta: But once that occurs is the board obligated then to re-hear it?
Mr. Fusco: If in fact so you are to vote 5 to 0 tonight to re-hear the matter, once they reapply you must re-hear it. That doesn’t mean you must approve, that is the risk the developer runs. The only other solution that I can think of what I might advise a client under the circumstances is to buy my building permit now because Brian then does have discretion to extend that out, move a little dirt, doing something ok. The downside of that may be a very expensive building permit. You run the risk of spending a lot of money and never build the project. Seems to me one of those two solutions are right.
Mr. Selvek: Under previous counsel this board had been told that this use variance runs with the land, I don’t know if that is State Statute or local, we have something in our local Code that says a use variance expires within 6 months. I don’t know if one or the other takes precedence.
Mr. Fusco: What the phrase runs with the land legally means is that when I buy the property I get the same benefit of the use variance perhaps that you obtained when you were the owner before. It doesn’t prohibit a municipality from putting some type of time constraint on it once you got the variance you have got to get a building permit with 6 months I think that would be a fair rule to have. I will be the first to admit 6 months is an awful short period of time for some of these projects that may be pretty detailed and requires outside financing and I have had a lot of projects were it took me 6 months just to get a site plan approval. So maybe the ultimate solution here is an amendment to the Code going out longer than 6
months going out a year or some type of discretion in the Code Officers. We are not going to be able to amend the City Charter tonight. Tonight we can move to re-hear the matter.
Mr. Westlake: Which way would the applicant like to go? Would you like to try and get a building permit
Ms. Dido: I am sorry, what?
Mr. Westlake: You have two choices tonight, 3, you could pull it, but we can vote for a re-hearing and it has to be unanimous tonight or you can get a building permit now and that might be a way around it.
Ms. Didio: I have to make this decision tonight?
Mr. Selvek: With regards to a building permit, final site plan approval has not been an issue; therefore you can’t pull the permit.
Mr. Baroody: We should make a motion to re-her in January.
Mr. Selvek: The board at a re-hearing according to Code the board can establish what they feel is a reasonable length for the extension so the board could grant 18 months if needed.
Ms. Didio: The application goes in in February.
Mr. Fusco: For the second time around this board might well give this type of circumstance add a condition that allows Brian to go beyond 6 months.
Ms. Didio: I need Zoning and Planning board approval for the application.
Mr. Hicks: Zoning Board has precedence over Planning when there are certain issues that the Planning board is waiting to have addressed prior to them doing a final site plan.
Mr. Bartolotta: I thought you said for the application you needed both the Zoning and Planning approval.
Ms. Didio: I do. I had both last year. If I am correct the Zoning board takes precedence.
Mr. Fusco: Zoning board would be lead agency.
Mr. Baroody: We would have to hear it in January and if everything went you would apply in February.
Mr. Hicks: We did Zoning first and then Planning.
Mr. Westlake: We need to make a motion tonight to re-hear it.
Mr. Baroody: I would like to make a motion that we allow a re-hearing of the assisted care facility on Clark Street.
Ms. Marteney: I second that.
VOTING FAVOR: Ms. Marteney
Mr. Baroody
Ms. Calarco
Mr. Bartolotta
Mr. Westlake
Ms. Didio: Thank you.
Mr. Westlake: Doesn’t mean that it will pass, just we will re-hear it.
Ms. Didio: We met with the neighbors at the Holiday Inn and I still get calls from the neighbors when are you going to build because we want to buy some of the land. We had several meetings with the neighbors.
Mr. Hicks: Next item pretty much the same thing, 200 McIntosh. Dr. Nangle’s site, we are in the same situation and his expires actually tomorrow and we are looking at the same thing we are just getting into the phases of accepting the plans so that we can move forward for final site plan.
Mr. Baroody: I make a motion that we do a re-hearing for Dr. Nangle for 200 McIntosh.
Mr. Bartolotta: I have one question, Brian you can extend that for another 6 months right?
Mr. Hicks: This has been extended already.
Mr. Bartolotta: Oh, it has, ok. That answers my question.
Mr. Hicks: Once again with the building industry the way it is today it is very hard for the contractor let along get prices back, let along watch the escalating costs of materials and after you come out of your shell shock from the cost then you realize that too much time has passed and your variance has expired.
Ms. Marteney: I’ll second that.
VOTING IN FAVOR: Ms. Marteney
Mr. Baroody
Ms. Calarco
Mr. Bartolotta
Mr. Westlake
Mr. Westlake: Meeting adjourned.
Mr. Hicks: Thank you.
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