ZONING BOARD OF APPEALS
MONDAY NOVEMBER 24, 2008
Members Present: Ms. Marteney, Mr. Broody, Mr. Darrow , Mr. Bartolotta, Mr. Westlake
Member Absent: Ms. Calarco, Mr. Tamburrino
Staff Present: Mr. Fusco, Mr. Hicks, Mr. Selvek
APPLICATIONS APPROVED: 35 Elm St., 1 Hoffman St.
Mr. Westlake: Good evening, this is the Zoning Board of Appeals. Tonight we have on the agenda: 35 Elm Street, 1 Hoffman Street
If there are no errors or omissions from last month’s minutes of the meeting, the minutes will stand as written. All in favor.
35 Elm Street. R1 zoning district. Brian Moore, applicant. Area variance for front yard parking.
Mr. Westlake: 35 Elm Street, are you here? Please come to the podium, state name, pull the microphone to you, and tell us what you would like to do.
Mr. Moore: Randy Moore, I am here on behalf of my son, who is out of town, he gave me permission to be here for him tonight. What he is looking for is reversal of decision about turning an old parking space into a lawn, which is a violation. All the work has been done, just an area filled in with topsoil and made a lawn out of and left the black top part of the parking area in tact.
Mr. Westlake: The pictures that we have here, where the car is sitting you want to make that grass?
Mr. Moore: Where the divided lines are?
Mr. Westlake: Yes.
Mr. Moore: It is just stone.
Mr. Westlake: Ok.
Mr. Darrow: You want it to be grass?
Mr. Moore: Yes.
Mr. Darrow: Why is he here?
Mr. Hicks: This area was recently installed basically without a permit and it was an illegal extension to the prior driveway area before the house was proposed for mortgage foreclosure. Once Brian Moore became the owner he received a written violation of the exterior and the driveway parking area had to be brought up to Code. Brian then, in the picture here, took half the area and turned it into lawn space, and retained the front portion for parking. At that point we told Brian that in order to retain that he would have to have an area variance because it is actually reserved of what the Code allowed and Brian explained to me that he would go for the variance due to the fact of the parking situation being stacking. If he were to return it all to Code and with the scheduling that they have between
he and his wife that is nothing something they want to go through in order to move the vehicles and they want to keep them off the street. Once again he also mentioned that he wanted to create more side yard green space for the kids, as he tends to work in the driveway and the garage and keep an eye on his kids, as they are fairly young. If there are any other questions, I would be more than happy to answer them.
Mr. Westlake: Thank you.
Ms. Marteney: There is a curb cut there already.
Mr. Westlake: Yes. Is there anyone here wishing to speak for or against the application? Seeing none, we will discuss it amongst ourselves. You can sit down and we will make a decision.
Mr. Darrow: I would like to make a motion that we grant a area variance to repave front yard parking as submitted in diagram and aerial photo for Brian Moore of 35 Elm Street.
Mr. Baroody: I’ll second that.
VOTING IN FAVOR: Ms. Marteney, Mr. Baroody, Mr. Darrow, Mr. Bartolotta, Mr. Westlake
Mr. Westlake: Application has been approved.
Mr. Moore: Thank you.
1 Hoffman Street. R1 zoning district. Mary Ann Giacona, appellant. Request to appeal decision of Zoning Officer to now allow cosmetology school.
Mr. Westlake: 1 Hoffman Street. Please come to the mike and state your name and what you would like to do.
Ms. Giacona: Mary Ann Giacona, I wanted to get I guess an interpretation of my previous variance because I would like to rent out the portion of the facility that had been previously rented by ARC who left in 2008. I want to get a new tenant in there.
Mr. Baroody: I don’t have an application.
Mr. Westlake: Just a letter. I don’t know what we are here for tonight.
Mr. Fusco: The applicant thinks that her relief is an interpretation not another use variance.
Ms. Giacona: Yes.
Mr. Fusco: She believes that, if you need an application for an interpretation as well, it is certainly one of the three functions that this board has, use variances, area variances and interpretations, but I don’t know if you have had occasions to deal with interpretations in the past.
Mr. Bartolotta: Interpretation of the Code or interpretation of the use variance that was granted initially?
Mr. Fusco: I reviewed this in preparation for tonight and quite frankly selected the wrong relief, I think that you need another use variance because you got a use variance in 2005 for The Center and that for what ever reason you lost that tenant, that does not automatically give you the right to have another tenant that is of a similar, in your opinion, use. When you were approved in 2005 you had to prove that the property, if use of all the various permitted in the Code was done to one of those permitted uses, you would not receive a reasonable return on your investment and you went through all that proof in 2005 which is probably why you don’t want to do it again.
However, incumbent in this board’s decision in 2005 to grant you a use variance to have The Center, it is inherent that it is for The Center and The Center only and that once The Center leaves you variance use begins to amortize, starts to be abandoned. So to give you an idea what is meant by interpretation since you have not had once of these in the past, let me give you an example. Let’s say we have an agricultural zone that allows the user to have only farm animals and the user then wants to have an emu farm. Is an emu a farm animal or not? In situations like that, that is an actual case out of Cortland County by the way, a case like that, the Code Enforcement officer said “I don’t know, I don’t know what an emu is” and so then how the proof goes is the
applicant shows that emu is similar other farm animals that we generally consider farm animals, pigs or cattle or what not to show by way of interpretation that emus should be included in the definition of farm animals. That is the classic interpretation case. It really doesn’t apply here.
Mr. Baroody: If I can ask a question of counsel, I remember the application in 2005 for allowing The Center to work as a center with the various things that go on there. Treating hair, nails, manicures, pedicures, all fall in line with cosmetology, how is that different? If it is part of the deal, it is part of the deal, why would we make this applicant jump through a bunch of hoops when we already approved the work to be done at The Center for The Center. I do remember this and I did review it. She applied for The Center, “X” number of square feet, what she does with it other than put it on the tax roll which I thank you (to Ms. Giacona), I don’t know what or why we are looking at this.
Mr. Fusco: What was The Center’s activity, teaching cosmetology?
Mr. Baroody: The Center activities is there are a bunch of healing arts, rike, manicures, makeup, hair, they do that. My wife and I went to the open house about a week a go.
Mr. Fusco: Was it treatments or education?
Mr. Baroody: This is a school
Mr. Fusco: I don’t want to put words in Brian’s mouth; he obviously distinguished this use from the prior use.
Mr. Baroody: There are a lot of things that go into The Center like that, I am sure there are sessions that you have to do to get rike. I don’t know about hair and nails but I know for most of the other stuff.
Ms. Giacona: The Center itself is maintaining what it is doing, there was 4500 square feet that at the time when I applied for my variance, it was very clear that that was going to be leased out. It certainly was my hope to expand the facility after 3 years. As Mr. Baroody said this type of entity and there are education components, we do workshops, we do lectures, we do bring in educational components in there and of course when ARC was there they had their educational components, etc., etc. What we are proposing certainly fits more into and it would really be no different if I was to personally expand our services to include hair, nails, all those kinds of things, it is a nice marriage to expand in the way, I do want to say this, when we talk about things being self-imposed, there was no way I could
foresee what happened with ARC once they left because it was my intention, my personal goal what I wanted to do that I had to put on the back burner, when I got all that data for that building, I was told that to take care of that building just the utilities alone would be about $800 a month. A lot of things have kind of forced me to make the kind of decisions that I have made, right now choosing to lease the reminder of that square footage. This particular business is going to be in there, I think it fits very well with the health center and spa, it will fall under the same I believe it is C-9 that we were classified, both business and education. Correct me if I am wrong, but I thought it fell under that category.
Mr. Fusco: I think Mr. Hicks has the 2005 file.
Mr. Darrow: I have a question that perhaps yourself or Brian could answer, if it was herself expanding what she offered, would she still then be in the same dilemma if you will if it was her own personal business?
Mr. Fusco: The answer is probably yes. It would depend though upon what relief was granted in 2005 and I wasn’t here so I don’t know. If the relief that was granted in 2005 encompassed the entire premise so you were giving a use variance for the entire premise, not just a portion of the premise and then you consider tonight’s request a like kind request. In 2005 you approved the school and you approved it for a full 4500 square foot if that is the case
Mr. Westlake: I don’t think there were any stipulations, you have to remember it was a Church, the use variance was to go to education and a business, we didn’t put any stipulations on it that I can remember at all. We have put stipulations on others, but I don’t remember any on this one.
Mr. Selvek: I have the minutes before me of the 2005 meeting, a motion was granted for a use variance for business services and education to the building Center. The issue for Brian became that was this granted specifically to the business of the building Center and that goes to the question asked if she expanded her services under The Center that would probably be very clear that that is allowable.
Mr. Fusco: Let me interrupt because I have to give another analogy briefly. If in 2005 you granted a use variance to allow her to have a Burger King, she cannot have a McDonald’s without asking for another use variance. So whatever the Center or whatever the concept, sounds like there was some schooling involved, education, as long as the new use is a like kind to the one that was previously granted by variance and does it constitute a lawful expansion
Mr. Bartolotta: Business services is pretty broad.
Mr. Darrow: Correct me if I am wrong what currently going on there is more related to health and healing arts than what she wants is cosmetology, therefore I don’t see health and healing and cosmetology
Mr. Baroody: Business and education
Mr. Bartolotta: If he could read the minutes one more time, sounded pretty broad.
Mr. Darrow: The variance was for business and education?
Mr. Westlake: Yes.
Mr. Darrow: OK. Then I would agree with that.
Mr. Fusco: Another thing I am confused on the entire Church was used by ARC and their activities that now have been cut down, is that it?
Ms. Giacona: ARC, we are dealing with an older building and they have severely handicapped people, there were a lot of accommodations that had to be made to the building. The building couldn’t handled their needs any longer, we are talking about paraplegics coming in there, talking about buses that were coming in and out of there with severely handicapped individuals so they built another facility out by the Mall.
Mr. Fusco: So none of their activities take place in your building now.
Ms. Giacona: Correct. Right now that 4500 square feet has been vacant since June.
Mr. Westlake: She wants to get it back on the rolls.
Mr. Darrow: Doesn’t a use variance stay with the property?
Mr. Fusco: Use variance runs with the property.
Mr. Darrow: How can it expire if it goes with the property?
Mr. Fusco: I am interested in hearing Brian’s thoughts on this because obviously she came to Brian.
Mr. Westlake: He usually put something that says it has got to stop.
Mr. Hicks: I did not do a denial for the simple fact that she asked for an interpretation of the original use variance. I understand in the Code that at that point all she had to do was to send a letter to address the board.
Mr. Westlake: We are the Zoning Board of Appeals.
Mr. Hicks: That is correct.
Mr. Fusco: I think what you could do in this situation is make a motion to resolve that the use as explained by this applicant is encompassed by the 2005 use variance and there is no need for an interpretation or another use variance.
Mr. Baroody: I would like to make a motion that we grant Mary Ann Giacona of 1 Hoffman Street, The Center, due to the area variance and use variance granted in 2005, a finding of fact that it encompasses the current expansion.
Mr. Darrow: I’ll second that.
VOTING IN FAVOR: Ms. Marteney, Mr. Baroody, Mr. Darrow, Mr. Bartolotta, Mr. Westlake
Mr. Westlake: You are all set.
Ms. Giacona: Thank you.
Mr. Westlake: Meeting adjourned at 7:30 p.m.
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