ZONING BOARD OF APPEALS
MONDAY, FEBRUARY 23, 2009
Members Present: Ms. Marteney, Mr. Baroody, Mr. Darrow, Ms. Calarco, Mr. Bartolotta, Mr. Tamburrino, Mr. Westlake
Staff Present: Mr. Hicks, Mr. Fusco
Staff Absent: Mr. Selvek
APPLICATIONS APPROVED: 217 Gant Avenue
APPLICATIONS TABLED: 113 Curtis Place, 18 Morris Street
Mr. Westlake: Good evening, this is the Zoning Board of Appeals. Tonight we have on the agenda: 217 Grant Avenue, 113 Curtis Place, 13 Morris Street
If there are no errors, omissions or additions to last month’s minutes of the meeting, the minutes will stand as written. All in favor.
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217 Grant Avenue, C3 zoning district. Area variance for additional signage for two (2) pylon street signs. Applicant: metropolitan Signs Inc.
Mr. Westlake: 217 Grant Avenue, 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. Razzante: Good evening Chairman and board members, my name is David Razzante of Metropolitan Signs, Inc. and I am here this evening on behalf of 217 Grant Avenue, Auburn Plaza.
Mr. Westlake: Give us a brief description of what you would like to do.
Mr. Razzante: Sure. As you known the two existing pylon signs incorporate the tenants within the plaza and right now there are 37 tenants within the plaza. These two pylon signs incorporate eight tenants that are on pole signs out of the 37. Some aren’t on any pylon; there was no room for them. What we are trying to do is make room for four additional tenants and the only spot really to go is down below the existing sign. I have with me this evening a gentleman who is the current tenant in Auburn Plaza, of Subway. If you have any questions as we go along this evening, he would be happy to answer any questions you have.
The sign that we need is approximately 3 foot x 10 foot to fit between the two existing poles and it would be the same color, same size as the bottom panels, that would go directly underneath the existing sign. I think that we did have some sketches that showed the new tenants and it shows comparatively between the two signs, one is a little higher than the other, higher on the Arby’s side, little higher above the ground than the Hess side. The signs right now are approximately 26 feet tall so this doesn’t affect the over all height whatsoever, with the panels down below. Right now if the four panel sign were to approved and put in, three tenants are coming in right now including Subway which would incorporate the three out of the four. What has happened over the years a lot of major
tenants have left which means that Michael Wachs owner of the plaza, G&A Group, had to cut down the larger spot to make some smaller tenant area, which incorporates the need for more signage.
Now we know that we are not allowed another pylon so what we are asking for is square footage directly below.
Mr. Westlake: Any questions from the board?
Mr. Darrow: If I understand correctly, you are saying that all four positions that would be acquired by allowing this variance would be filled immediately?
Mr. Razzante: Yes it would.
Mr. Westlake: Any more questions from the board?
Mr. Baroody: The sign near Arby’s I don’t foresee as a problem, the sign coming out of Hess, you have no vision at all, cover it up you are not going to be able to see cars coming out of there just won’t be able to see.
Mr. Razzante: I noticed that myself.
Mr. Darrow: What I noticed today is if you are the first car in that lane if you are turning left that is fine, but how many cars behind that car, the view would be obstructed.
Mr. Westlake: If I had my way I would close that right off completely and make them go down to the traffic light.
Mr. Darrow: Yes, the other end I don’t have a problem with because the other end is controlled by a traffic light.
Mr. Bartolotta: How is the square footage designated per tenant, in other words, is it larger sign for larger square footage?
Mr. Razzante: Yes it is. The larger the tenant more space they get on the sign. As you can see Marshall’s, Bed, Bath & Beyond and A. C. Moore have the largest panels. As you go down below to the smaller tenants you notice that the panels are smaller incorporating the smaller square footage of the tenant. Unfortunately tenants like Dave Losani here for Subway right now doesn’t have any kind of visibility from the road, when you put up a sign on the building that is based on square footage also so if he is allowed 30 square feet on the building, like a 3 x 10 you are not going to be able to see that driving up and down the road. There is also going to be another tenant in that far corner, an Italian Restaurant going in, he is going to need something too.
Mr. Westlake: Thank you very much.
Mr. Razzante: If we had a problem here, we do have another idea.
Mr. Darrow: You may want to discuss that other idea now.
Mr. Razzante: Right now?
Mr. Darrow: Yes.
Mr. Razzante: Talking with the owner, Michael Wachs of G&A Group, we really didn’t want to do this because it is quite expensive, very hard to do, requires engineering, engineering drawings, things like that. As a final resort and I understand the problem with the Hess Station, the visibility, being in the business for 39 years, I guess as a final resort what we could do based on your approval of course, would be remove the top sign that says Auburn Plaza take down all the signs, put two new poles up that are taller, make room for these signs now with a couple extra feet to take care of any in the future so we are not back here in 6 months saying we need more space and add the additional panels that we need at the top keeping the bottom the exact same footage off the ground. The problem with that is
the higher you go tougher for visibility except for a distance. So if we decide we need another 8 feet that might take care of something in the next couple years that would add another panel, two panel section, it would help us in case another tenant larger or smaller came in, in place of let’s day Bed, Bath & Beyond went out the section could be divided into 3 or 4 more sections, we would then have space and we could divide that in half and make two but what if we needed 4 more, so if we do this now add the additional height to the top, keep the bottom the same, maybe we can resolve the problem.
Mr. Darrow: Need a height variance and square footage.
Mr. Fusco: I think the record should reflect that Mr. Hicks has provided our members with a photograph array which I don’t know if the applicant has or not, I think it is the 3rd photograph of the array 3rd and 4th which are particularly demonstrative of the situation Mr. Darrow points out regarding visibility on the Hess side. The minutes should reflect that we have that and that may or may not be the basis for whatever the board decides.
Mr. Darrow: What I would suggest is that we move forward as the application states now and for what you are looking for whether approved or denied you would then know what your recourse is.
Mr. Baroody: Can we amend his application now?
Mr. Darrow: No because of the drawings and everything else.
Mr. Fusco: Asking for a different variance too. What we could do, there is not a problem that you can see on the other side
Mr. Darrow: The other side is controlled by a traffic light.
Ms. Calarco: Amended to have it allowed on one sign and declined on the second sign.
Mr. Fusco: Correct, that could be done because he is specifically asking for two variances.
Mr. Darrow: Yes.
Mr. Razzante: Could we also say if need be we could raise the poles on the other side just in case to have signage in there for future so we are not back here in 6 – 8 months?
Mr. Darrow: That is what we would be saying in the next application.
Mr. Razzante: Is there anything that we can do to help Mr. Lisano on the existing on the existing signs?
Mr. Baroody: I think if we could separate the one in front of Arby’s with the traffic light versus the one in front of Hess. I am not speaking for everyone but I wouldn’t have a problem approving the one right away.
Ms. Marteney: The problem is that the headliners are on both of them, the smaller ones would be closer to where the actual shop is located so putting Subway in front of Arby’s is not really the right location in terms of…
Mr. Baroody: Give them some exposure.
Mr. Darrow: Maybe Radio Shack would be a good neighbor and give them half of their sign.
Mr. Razzante: We tried that, you know what the answer was.
Mr. Westlake: We have one more step here, is there anyone wishing to speak for or against this application? Come up and state your name, speak clearly into the microphone.
Mr. Lisano: I am Dave Lisano, I am a native of Auburn, and I live in Elbridge now. I own Subways Restaurants in town and with this expansion we just went into the Auburn Plaza. The pylon sign will be an enormous asset for us especially when traveling west. I understand all of the concerns, but I hope that we can move forward and assist me in making better my investment.
Mr. Westlake: Thank you very much. Any more questions from the board?
Mr. Darrow: I have one last question, so being that there has been talk of alternatives, is it your wish to amend your application so that you are only requesting the variance for the sign at Arby’s controlled by the traffic control device or do you want to keep both signs together on this one as it is currently written?
Mr. Razzante: There is no way this evening that we are going to be able to get the height variance approved correct?
Mr. Darrow: No. Because what happens is that should we turn it down that means they are both down where you pull the Hess sign out of it, you can still we can go ahead and put markers on the one by Arby’s controlled by the traffic control device.
Mr. Baroody: And at a later date you may be able to make them both look the same.
Mr. Razzante: I understand it because I looked at both situations and I agree with you that that could be done on one and not the other.
Mr. Darrow: So for the record you would like to request that you are pulling the sign by Hess and are only asking for a variance for the sign at McIntosh and Grant Avenue?
Mr. Razzante: Correct.
Ms. Marteney: Just to clarify, the Hess entrance you are anticipating adding 8 feet on top of what is there now?
Mr. Razzante: Yes. What we would like to do if we are going to do this, we are going to have 3 foot signs that we applied for at this meeting, there is another 2 ½ foot sign that would be placed under A. C. Moore because we think there might be a tenant going in, I guess there is room out back somewhere for a new building, Brian have you heard anything about this?
Mr. Hicks: Nothing yet.
Mr. Razzante: Ok, if they get that tenant it they will require that same size panel as A. C. Moore. We could fit that in there, what we would do then at the next meeting is bring in drawings, showing heights, new formation so that would be a great idea to get at least one sign on one side there to help the new tenants moving in help them out a little bit, that would be great.
Mr. Westlake: Thank you.
Mr. Darrow: I would like to make a motion that we grant Michael Wachs of G & A Group and Metropolitan Signs, Inc., of 3760 Patchett Road, Baldwinsville one area variance for the installation of one sign unit of 30 square feet, area variance of 30 square feet in addition to the previous area variance that was granted of 71 square feet on the McIntosh/Grant Avenue pylon sign to be completed as submitted in drawings.
Mr. Baroody: I’ll second that.
VOTING IN FAVOR: Ms. Marteney, Mr. Baroody, Mr. Darrow, Ms. Calarco, Mr. Bartolotta, Mr. Tamburrino, Mr. Westlake
Mr. Westlake: The application as amended has been approved. Good luck with your project.
Mr. Razzante: Thank you for your consideration.
Mr. Westlake: See you next month.
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113 Curtis Place. R1A zoning district. Use and area variances for additional dwelling unit. Applicants; Sandra Janke and Judith Langtry.
Mr. Westlake: 113 Curtis Place. Speak into the microphone, tell us your name and what you would like to do.
Ms. Langtry: My name is Judy Langtry and I am requesting use of the second unit that already exists at 113 Curtis Place. I am interested in purchasing the property I put in a Purchase Offer in October and the news that we couldn’t occupy the second unit just came to me prior to closing scheduled in January. I apologize for some of the scribbling on the application, I scrambled to try and get everything together for tonight.
Mr. Westlake: Any questions from the board?
Mr. Fusco: What is the reason that the one unit that existed is unable to be occupied absent a variance?
Ms. Langtry: The downstairs unit is occupied, it is a complete unit, upstairs is as well, the kitchen does need some updating, it is very old, but I am not sure it has to do with it being unoccupied for 6 months, I believe, it then reverted back to a single family unit, so a variance is required in order to use the second unit.
Mr. Fusco: Is that accurate Brian?
Mr. Hicks: That is correct. It was vacant for well over a year.
Mr. Westlake: Questions?
Mr. Darrow: I have no questions of the applicant.
Mr. Fusco: I would like to draw the board’s attention, I don’t know, Steve is not here tonight, he did give us an extensive memo on the implications of this and the next case as well and I don’t know if members have had an opportunity to review Mr. Selvek’s memo on this and his concerns. Also I think one of the problems that I see as a matter of proof, members of the board who are veterans know the way to prove a use variance is to dollars and cents proof to show that the property has no reasonable return whatsoever for a legitimate existing use in this case single family. I reviewed the application today, I saw no dollar and cents proof at all. Your contract is conditioned upon receiving the variance but there is a specific type of proof that is required to be put forward in use
variance cases and while my file may not be complete, I didn’t see it.
Mr. Darrow: No financials in my packet.
Ms. Langtry: I can address that, I have lived in Auburn and rented an apartment for several months last year, the reason being my husband and I are divorcing and I moved to Auburn. He needs to maintain our home on Rockefeller Road for our children. This piece of property allows me to have a home that I can afford, that is the need for the variance is to rent the one unit in order to live in the other.
Mr. Fusco: I understand that, that wasn’t my point, I don’t know if you consulted with Mr. Zwirn or not, I see he notarized the paperwork but the type of proof that is required to allow this board to legally grant a use variance is dollars and cents financial proof that shows but for the granting of the use variance that the property has no reasonable return. I am not familiar with the property, but after reading the file the Purchase Offer is for $88,000. I don’t know whether it is worth $88,000 as a single family home or not, and absent knowing whether it is or isn’t I don’t think the board is in a position at this point to be able to answer the question yea or nay. You as the applicant are required to prove that.
Mr. Baroody: One of the things that was attached was letter from Dr. Ryan, it has been vacant for over a year, they have had no offers, he was looking to knock it down. I don’t know how that would affect the neighborhood.
Mr. Darrow: That is what I wanted to discuss after the applicant.
Mr. Baroody: I think it is obvious that the cost of the house, having it vacant for a year and not getting any offers and going to knock it down certainly won’t help the tax roles either.
Mr. Westlake: He wanted to extend his parking lot and then he heard that the neighbors were upset that he is was going to do that, that is what I read in the letter.
Ms. Calarco: But you can’t purchase something you think you can do something with and then go “oh me, I can’t do it”, that is my problem, I can understand where she is coming from but the reason he wants to sell it he bought it on the anticipation of being able to do something, now can’t do that, so
Mr. Baroody: If that is the case, I would like to afford the applicant the opportunity to table this for a month, put together a simple spreadsheet to show one income versus the two, something that would meet the “letter of the law”.
Mr. Darrow: We should afford the applicant the opportunity to table so that she can get her financials together to prove that in order for this property to work you need the rent and probably can’t do it by yourself.
Mr. Baroody: We have very minimal parameters that we can work with.
Mr. Bartolotta: You have to take the criteria that needs to be proved in order for us to issue you the variance, you can go through that criteria and pencil out why each one.
Mr. Darrow: Show that the hardship wasn’t self-created.
Ms. Langtry: I did read all of that I guess I just didn’t understand that it had to be in a dollars and cents.
Mr. Fusco: Apparently you got close to closing at one time
Ms. Langtry: Yes
Mr. Fusco: So there probably was some type of appraisal done on this property already so probably some of the financials have been generated as to what the property is worth, that would be helpful. Maybe Mr. Hicks can help.
Mr. Hicks: Actually when it comes to some of that I can’t help her. The thing is the application specifically states what is needed for the applicant to submit. If it comes in without, the only thing I can do is clarify with something that I can put in front of the board.
Mr. Fusco: Does Mr. Zwirn represent you?
Ms. Langtry: Yes.
Mr. Fusco: You might want to talk to him about this. I am sure he has some experience in this, how to prove lack of reasonable return that warrants a use variance.
Mr. Westlake: Would you like to table this until next month?
Ms. Langtry: Yes, please.
Mr. Westlake: Ok. Can I have a motion to table until next month?
Mr. Baroody: I would like to make a motion that we allow Sandra Janke and Judith Langtry to table 113 Curtis Place to allow them to get the financials together.
Ms. Calarco: I’ll send that.
VOTING IN FAVOR: Ms. Marteney, Mr. Baroody, Mr. Darrow, Ms. Calarco, Mr. Bartolotta, Mr. Tamburrino, Mr. Westlake
Mr. Westlake: All in favor of tabling until next month. Thank you, see you next month.
Ms. Langtry: Thank you.
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13 Morris Street. R1A zoning district. Use variance for addition of dwelling unit. Applicant: Christopher and Daniela Steinbacher.
Mr. Westlake: 13 Morris Street, are you here?
Mr. Steinbacher: I am Chris Steinbacher, I live at 37 Catlin Street, my wife and I are residents of Auburn. We are applying for a use variance which I believe I have proof that we should never have had to been here for that.
Mr. Westlake: Ok.
Mr. Steinbacher: We bought 11-13 Morris Street back in November, we went through the building in September, the building in question has occupants living in that, there was no sign that the building was condemned whatsoever, no boards no signs whatsoever. Ultimately we bought the building in November and at closing we never received rent from the tenant in the rear. The person who sold us the house never gave us any rent at the closing.
Mr. Fusco: There is a notation right on your closing statement that there were no tenants there, that is why they didn’t adjust the rent. In the paperwork that you supplied us, there is a notation right on your closing statement explaining that.
Mr. Steinbacher: There definitely were tenants in there because I had to go through City Court to evict them ultimately afterwards. If the building was condemned there never should have been tenants living there to begin with and the Code Enforcement Officer knew that, I have proof stating that on August 18, 2008 they went back to the building and they went through the building and a couple violations were removed, the extension cords, repaired broken glass in the entrance door, repair electrical service panel and remove some shoes behind the door. That is pretty much proof that he knew people were living there, that is Code Enforcement. The building was condemned back in November of 2007 because the boiler went down. I have paperwork stating after that Codes Enforcement came back after that and
there is no mention of the boiler being done after that. Basically why I am here is the building has been condemned for 6 months Codes told us so that is why it lost its use. I have paperwork proving that it wasn’t condemned at that time.
Mr. Westlake: Questions from the board?
Mr. Darrow: You are maintaining when you purchased this property all the apartments were occupied?
Mr. Steinbacher: Yes sir. There are two separate buildings, in the front building there was a vacancy, but that is not in question.
Ms. Marteney: On this summary appraisal report it also talks about the number of units down towards the bottom, general description, states no adverse conditions relative to the marketability of the subject property was observed and it says that there are four units.
Mr. Fusco: Where do you see that?
Ms. Marteney: On page 1 of 7, no adverse conditions and then down here it says general descriptions that there are four units.
Mr. Fusco: Then it goes on later on
Ms. Marteney: And it goes on that three of the fours units are currently tenant occupied.
Mr. Fusco: On the 4th page look down at the very bottom where they are describing the parcel and how many family units it is, they left it blank. The very last line.
Mr. Steinbacher: We never would have purchased the property if that building in the rear…
Mr. Bartolotta: But it goes on to say it is a legal non-conforming use that would be allowed to continue.
Mr. Fusco: Three family.
Mr. Baroody: Said three of the four units occupied, he says it was occupied when he bought it and it says that everything is fine, how do you want to address this?
Mr. Bartolotta: I have a couple quick questions and maybe I should know this myself, but maybe you can clarify, what is the triggering event that starts the clock ticking? Is it just a sheer vacancy or does it have to be condemned?
Mr. Hicks: Condemnation. As soon as the file is in the computer the time starts ticking, after 6 months the use is lost.
Mr. Bartolotta: Right.
Mr. Hicks: The key factor is that they need or whoever wants must address that within that time period. During the time period this absentee landlord that was dealing with this property, there is quite a bit of history, but the apartment was condemned. We do not have the right to evict the tenant who may be in that apartment. We can condemn it, but we don’t have the right to forcibly remove them from the apartment.
Mr. Bartolotta: And one of these apartments was condemned?
Mr. Hicks: That is why we are here.
Mr. Bartolotta: Ok, got it.
Mr. Baroody: You didn’t know the apartment was condemned?
Mr. Steinbacher: The reason it was condemned was the boiler went down. The boiler was fixed shortly after that when we went to look at the house, my thing is they went back on August 18, 2008 to do another to look at the place again, nothing is mentioned about the boiler at that time, but they mentioned other things that were wrong, I don’t know if paperwork went missing, but at some point that apartment was taken out of being condemned.
Mr. Hicks: As far as I know it was never released and that is why we are here today and the thing is if the boiler had been corrected at that point in time, then the violation would have been corrected and it would have shown on the computer screen as being corrected. I don’t have that screen work in front of me, I don’t have a printout on that.
Mr. Steinbacher: I have it right here and it doesn’t show anything about that on August 18, 2008 or May 14, 2008 there is nothing that talks about the boiler.
Ms. Marteney: What documents do you have?
Mr. Steinbacher: These are printouts when Codes went through the building.
Ms. Marteney: After the condemnation of November 2007?
Mr. Steinbacher: Correct. They went back on May 14, 2008 and again August 18, 2008, I mean why would they keep going back and looking for more violations. I think it is a technicality a mix-up that the building, Lane Paulsey went with me there again last month boiler kicked on fine, Lane said ok you are good to go and then he said but you have to apply for a use variance.
Mr. Bartolotta: What is the formal mechanism used once the apartment is condemned to correct the violations and take it out of the state of being condemned, is there a formal mechanism that you use for that?
Mr. Hicks: Yes, you address the violation, verify that the violations have been corrected, you notify the Code Officer so they can get it in to corrected item on the screen and give the violation a release. That is the part that the former owner omitted.
Mr. Bartolotta: So even if the underlying violations are fixed unless they go to that next step, contact you, have it formally put on the computer screen within that 6 month period
Mr. Hicks: We still show it as open.
Mr. Bartolotta: It is still open.
Mr. Fusco: To try to clarify what I think are the two legal issues here that you all have to determine; number 1: when an apartment is condemned and our theory of abandonment starts the day that condemnation is nailed to the door, but the apartment is actually not vacated, is there an abandonment as matter of law, see what I am saying? That is question number 1.
Question number 2 and this is the more uncomfortable one is the issue of self-created hardship. We have got two big red flags in the closing documents that there was a problem with this fourth apartment. There is a notation on the closing statement, guy is not paying rent, he is living there but not paying rent, he is given notice but he apparently is not leaving and then there is the description of the property by the appraiser where he has to fill in a number 1, 2, 3 or 4, just leaves it blank to be figured out later. Now the problem is obviously those two sins have fallen on somebody else’s shoulders. To what extent are we going to hold the client responsible for those types of problems that are in the file that I was able to see when looking at it, because a guy who is not a lawyer may
not catch. That may or may not have been explained to him by his lawyer, I mean, I don’t know. So those are the two legal issues that you have to decide, is there in fact an abandonment once the thing is placarded but the people won’t leave and we know they are still there in November because the closing statement says so, they are still there but not paying rent.
Ms. Marteney: Where do you see that?
Mr. Baroody: Here is my copy.
Mr. Bartolotta: So if you determine that there hasn’t been an abandonment then the use variance isn’t necessary, is that the analysis?
Mr. Fusco: That is an argument, that would be an argument that I might make were I representing this applicant that you 6 month abandonment stated in the City Code doesn’t apply in this situation because it was never abandoned, there was a placard up there but no one ever left, it was cold weather and the furnace was going on and off. You may accept that or you may not. That is one issue and of course the other issue is the hardship here, there are red flags all over the file and they closed anyhow.
Mr. Bartolotta: The rest of the criteria will be addressed if we answer in the affirmative to the abandonment question.
Mr. Fusco: If you think it really wasn’t abandoned you might want to give him relief as an innocent victim. Closed in November and the people were there.
Mr. Westlake: Is there anyone here wishing to speak for or against this application? Please sit down. Thank you.
Mr. Lisano: Hi my name is Dan Lisano and I live at 4 Morris Street, my concern is the parking the rift raft that lives in that house, nothing against these people they have done a good job in the last couple months fixing it up, it is getting a little better, but the last 4 or 5 years that house has been horrendous. The lawn is not mowed, cars on the front lawn, fires in that place, Police have been there, not very well maintained and I have lived on that street for 40 years as a child I grew up on that street. I purchased a home on that street 9 years ago. Codes are there constantly, it needs to be toned down. I see that he redid the chimney on it, I keep an eye on what he does. I don’t have anything against him. Two front tenants don’t have a driveway, there are 3
apartments in the front house and then there is an apartment in the back, concrete structure with garages underneath it. They have had large vehicles back there and work on the motors in the past, not now, this was when Mary Steele owned it. I just hope it doesn’t turn out like that, it just downgrades the whole neighborhood, it really does, and that is my concern.
Mr. Westlake: Thank you very much. Is there anyone else wishing to speak for or against the application?
Ms. Marteney: Is there adequate parking for the number of vehicles?
Mr. Hicks: Don’t know that yet.
Mr. Baker: My name is Todd Baker, I live at 6 Morris Street. I just want to make sure you are aware and take time to make sure there isn’t an abandonment issue here as well and for the same reasons Mr. Lisano gave. Is there a general procedure that you follow to do that.
Mr. Westlake: We will talk amongst ourselves.
Mr. Fusco: Your concern is the quality of the prior tenant?
Mr. Baker: Not the quality of the prior tenant to make sure the abandonment issue is addressed, that it is not overlooked. In other words is there an abandonment or is there not?
Mr. Fusco: That is something I tried to charge this board to decide, that is a good question. What are your thoughts on it?
Mr. Baker: I don’t have any facts to state either way I just would like to make sure that is addressed and not overlooked. I would assume that it would be the owners’ responsibility to prove that. Is it something that will be answered tonight or tabled to the following month?
Mr. Westlake: We will see how that goes after we talk amongst ourselves. Thank you very much. Is there anyone else wishing to speak for or against this application?
Pull the microphone down and speak clearly into it.
Ms. Bunnell: My name is Ann Bunnell and I live at 7 Morris Street. The parking is terrible on that street, the lower end of the street. There are 3 apartments in the front of that building with no off street parking. We have another apartment with 4 units right across from me at 10, there is no off street parking there and any time I have, I have a brother that comes over from Syracuse every Wednesday to visit me and he has to park almost way up near Bundy Avenue or something. That is what I am concerned is the off street parking and say they rent to a young couple and they both have cars, that would be 6 cars and that is what I am concerned about.
Mr. Westlake: Thank you very much.
Mr. Fusco: Before we get to the merits because it is a use variance case we will have to determine the SEQR issues either positive or negative declaration, our last speaker went directly to that. We do have the short form SEQR in your packet and again Mr. Selvek who couldn’t be here tonight because he had to be out of town, has commented extensively on a number of the issues that have been raised by the neighbors in his memo to us tonight. There is an EAF for the last item that was tabled and the EAF for this current one.
You will see that Steve is recommending for the 13 Morris Street application that we make a finding that there will not be a significant environment impact, that is his recommendation. However, I note on question C-2, C-7 there are comments that we heard from members of the public, which are different regarding traffic, tolerating conversions things of that nature, the character of the neighborhood, which may or may not change ultimately with your answer.
Mr. Westlake: Any questions on the SERQ?
Mr. Darrow: Any discussion?
Mr. Bartolotta: My only comment would be as the one gentleman suggested the abandonment issue really is what is going to be the determining factor as to whether or not we need to through with all this. Determine whether or not a variance is necessary.
Mr. Darrow: I don’t see where that has an impact on the environmental review.
Mr. Westlake: Do the SERQ first. Do I hear a motion on the SERQ?
Mr. Fusco: One question I have for the applicant is there a potential for any off street parking on the property?
Mr. Steinbacher: There is a driveway and in the back there is a 3 bay garage. I would like to make a comment, I live in a residential neighborhood, I own an apartment building at 10 McMaster Street earlier this year, we put $15,000 into that building, cleaned it up and it is a better neighborhood since we did that, no way do we want to go in there and try to make it a worse neighborhood, try to make it a better neighborhood, get decent people in there. I have found out since I got into this, Auburn is not the greatest place to be a landlord. We had to evict 3 people since August. As far as the financial aspects go, we do have some money to put back into the buildings but I am not going to do anything until I get use of that back building. I have been in the military for 20 years, I want to
make sure that people are comfortable living there and make sure things are done the right way.
Mr. Westlake: Right now you have the potential with 4 apartments, 8 cars.
Mr. Steinbacher: We wouldn’t allow that.
Mr. Westlake: You really don’t’ have any control over it, once they move in if they buy another car you can’t kick them out because they bought another car. Ok. Any more questions from the board?
Mr. Hicks: Mr. Chair, as far as the parking issue when this all started it was a difficult process for the couple here and the Codes Office getting the information and explaining what we needed and what they should submit. We only have the use variance at this point in time. The conversion application which normally starts the process clearly outlines what is required to proceed to this point. The area variance is not something that we have at this point so we cannot see the parking issue. We cannot see the property, see the potential for off street parking and it is clearly defined in Code that any conversion, any added unit will provide off street parking which will clear up some of the parking issues that this property has had or the street may have. Once again unfortunately the only
thing we have in front of us is a use variance and this is some of the information that may have been misconstrued or misunderstood maybe not completely filled out.
Mr. Baroody: Once we determine the SERQ either way and the determination is made whether it was abandoned or not will determine whether we go forward or not. So you should have know going into it and your attorney should have handled it himself.
Mr. Darrow: I would like to make a motion that we find a Negative Declaration on the SERQ review on 18 Morris Street.
Mr. Baroody: I will second that.
VOTING IN FAVOR: Ms. Marteney, Mr. Baroody, Mr. Darrow, Ms. Calarco, Mr. Bartolotta, Mr. Tamburrino, Mr. Westlake
Mr. Westlake: Negative Declaration has been approved.
Mr. Darrow: I am a little confused, we are just looking at whether or not there was an abandonment issue or are we looking at giving them a use variance?
Mr. Baroody: If there was no abandonment issue, no need for a variance.
Mr. Darrow: So in this case we are being asked to decide whether it was abandoned which started the clock ticking for the 6 months and if so
Ms. Marteney: Abandonment or condemnation?
Mr. Darrow: If this property was vacant no matter what you call it, that property was vacant for 6 months that starts the clock.
Mr. Westlake: The clock starts ticking the day it is condemned.
Mr. Fusco: Let’s read the section of the Code.
Mr. Westlake: Ok, I guess the confusion that I had is all of sudden now we can’t address the parking issue until we address the other issue but even if we were to, I am not saying we are or aren’t, if we were to approve this tonight, they still can’t use it until the parking issue, do they have an area for parking.
Mr. Darrow: From what Mr. Hicks said the parking issue will address itself and then if they can’t conform with what is required of the parking issue then they would have to look to us for relief on the parking issue.
Ms. Marteney: Don’t know how many bedrooms there are.
Mr. Darrow: Can’t determine the parking issue unless we know it is a 3 or a 4 unit.
Mr. Bartolotta: Are we being asked to make an interpretation of the Code?
Mr. Westlake: Codes has condemned it and the clock starts ticking then.
Ms. Marteney: And when was that?
Mr. Baroody: My understanding and I read the Code and then I read the papers, which made no sense.
Mr. Darrow: That is the problem, the gray area, these folks thought they were taking possession of a property that was still a legal 4 unit because of somebody living in it, they were unaware that it was condemned and those people weren’t suppose to be living in it.
Mr. Westlake: They didn’t pay the rent.
Ms. Marteney: It says they didn’t pay the November rent. Maybe they don’t pay on the 1st of the month, I don’t know.
Mr. Baroody: When I first read this application, I thought it was somebody had a bad closing that they were looking for us to fix and then I read these documents and everything was done in good faith, that is where the confusion is.
Ms. Marteney: I agree with you it says no adverse conditions relative to the marketability of the subject property were observed and down below it says 4 units. This is page 1 of the Doan appraisal.
Mr. Darrow: Dates September 29.
Ms. Marteney: Then on the second page 3 of the 4 units are currently tenant occupied and one is currently vacant, doesn’t say which one is vacant, it doesn’t say why it is vacant. They didn’t create a hardship, they thought they were buying 4 units.
Mr. Westlake: That is Doan’s appraisal, he should have gone to the City of Auburn and say is there anything wrong with this property that is part of the reason they pay for an appraiser.
Mr. Darrow: He is obligated under the agreement for the appraisal to check with the City of Auburn to see if there are any outstanding Code violations. I have to believe that this happens on a regular basis.
Mr. Fusco: Here are the appropriate sections of the Code regarding abandonment. Any pre-existing non-conforming use which is discontinued or abandoned for a period of 6 consecutive months regardless of any reservation of an intent to resume or not abandon such use shall not thereafter be reestablished or resumed. That is Section 305-85. In Section 125-28 of the Code structures which are abandoned for a period in excess of 6 months shall be certified as single family dwellings and for the purposes of the 6 month period of time shall commence on a date when the dwelling is placed on the Auburn Fire Department’s weekly inspection list. There is nothing in there that says the placard is what starts the statue, it is some type if inspection list.
Mr. Westlake: I don’t see anywhere a letter of condemnation.
Mr. Baroody: It wasn’t abandoned people were living there.
Mr. Bartolotta: Is abandonment a defined term?
Mr. Baroody: I would like to make a motion that this property was not abandoned, shouldn’t be here in the first place.
Mr. Fusco: You have the authority to do that under your inherent authority to interpret.
Mr. Bartolotta: Do we have enough already to make that determination?
Mr. Baroody: People were there.
Mr. Fusco: Not everything says 4 units. In one place it says 4 units and another one it says blank units. The information that we have regarding occupancy is that in September there were people there, the applicant went there in September and saw that it was occupied and the only other evidence that we have is the notation on the closing statement that says people are there in November, haven’t paid the rent, given notice to leave, at closing people were there.
Mr. Darrow: What bothers me the most about this whole thing beside the fact that piece of property is 4 units, what bothers me the most is the fact that we have no paperwork by the City showing what date this started. We have nothing.
Ms. Marteney: The condemnation.
Mr. Darrow: That is what bothers me.
Mr. Hicks: That is nothing that we would include, we don’t include violations on a property.
Mr. Darrow: But we have an interpretation before we can go ahead with this variance and I would not want to render a my vote without having everything in front of me because that is a very leading factor that no one seems to be able to substantiate when the 6 month clock started.
Mr. Bartolotta: Are you saying the application should be amended to request an interpretation rather than a use variance?
Mr. Darrow: That is what it is doing.
Mr. Bartolotta: I don’t know that it is doing that but we have kind of taken it upon ourselves to go a step further and analyses this
Mr. Fusco: You probably have an inherent ability to do that.
Mr. Bartolotta: Right now?
Mr. Fusco: Yes. You can convert an application for a use variance or area variance and do an interpretation for the following reasons whether it was abandoned or the clock never started. It is not Brian’s burden to prove when the clock started or stopped. In other words the applicant has the complete burden of proof. The file is incomplete as to their being some type of placarding, some type of condemnation, being placed on the weekly Fire inspection list we can’t hold the Code office chargeable for that.
Mr. Darrow: The only part I disagree about that is if it is up to them to prove and they claim the clock never started ticking, they have no paperwork to show that it never was in condemnation but if it was put in they would have a paper to prove that it was put in. That is the only thing that bothers me that is why if Codes they say it wasn’t put in condemnation then they would have the paperwork to prove it.
Mr. Fusco: What if in fact there is some paperwork downstairs that says this thing was placarded on a certain date, there is a record of it and it does actually exist and the reason that there were people there in September when the applicant made an inspection and the reason they didn’t pay rent in November is because they are squatters.
Mr. Darrow: I would still feel that the clock started ticking upon the date of condemnation, because if they are not paying rent, they are technically squatters.
Mr. Westlake: Brain said they are under no obligation to move the people out, since it is condemned, it is up to the landlord to move them out.
Mr. Baroody: When I first got this I drove by the property, they are looking at us to solve a problem that the lawyer or appraiser caused, after reading this I think they have a legitimate claim. There is a motion on the floor, either second it or put it to sleep. I made the motion that the property was not abandoned. This is what we have to go by.
Mr. Westlake: Then we have to go by what they are originally asking for, the applicant is asking for a use variance in a single family residential district to add a fourth dwelling unit to the property. We have to go by that.
Mr. Darrow: I think the easiest way to put this to rest is I would second his motion, spin it around and see where it lands.
Mr. Westlake: Motion made and seconded.
Ms. Calarco: I have one question, where is the proof that there was someone there? There is no proof of condemnation and there is no proof that someone was actually there.
Ms. Marteney: I am very uncomfortable voting at all, I think it needs to be tabled.
Mr. Westlake: We do have a motion on the floor and seconded we have to vote on it.
Ms. Marteney: What was the motion?
Mr. Fusco: Finding that no use variance is required because there it was never abandoned.
Mr. Baroody: The people were there they don’t need this.
VOTING AGAINST: Ms. Marteney – there is no information about condemnation/abandonment or tenant that were there and I understand that you evicted somebody but I don’t have that information in front of me in the packet so I can’t vote yes. Mr. Darrow – lack of information. Ms. Calarco – lack of information. Mr. Bartolotta, Mr. Tamburrino, Mr. Westlake
VOTING IN FAVOR: Mr. Baroody
Mr. Westlake: Motion did not pass.
What I would like to see here is more information next month, if they would like to table it to next month or you can go ahead with your original here. The original request is to change to add a fourth dwelling unit to the property. This is the way it is written, the applicant is requesting a use variance of a R-1A single-family residential district to add a fourth dwelling unit to the property. If you want to go forward that is ok, but if you get turned down tonight you have no recourse.
Mr. Darrow: You really should have proof that that property cannot support itself as a three unit, that without a fourth unit you are losing money every month.
Mr. Westlake: And the strange part about the whole deal even if we did allow this you are liable not to get this because of the parking situation, I don’t know, can’t say that because we can’t address that tonight. You have two choices here either table it or go with the original application.
Mr. Steinbacher: I would like to table it.
Mr. Westlake: Ok.
Mr. Steinbacher: If a property is condemned it should be boarded up there should be signs on it. Now people are going around buying property and you go to look at a property, there are people living there and you go and talk to the people and yes nothing is wrong with it and Codes is back there and there were people living there, something should be said.
Mr. Fusco: Why do you think your appraiser didn’t put a number in that blank? It raises the potential that you didn’t know if it was a 2, 3 or 4 unit.
Mr. Steinbacher: They asked for $130,000 we offered $102,000, there are not a lot of apartment buildings in that area
Mr. Fusco: What was the purchase price?
Mr. Steinbacher: $100,000. I don’t think there are many 3 units that people are paying $100,000 for, I think I was duped by this lady, my lawyer didn’t do a great job, my real estate agent didn’t do a great job all around. We rushed to buy the property we thought it was going to be sold, we would never have paid $100,000 for a 3 unit, we paid $60,000 unit on North Street. In order to make a little bit of profit off it we need a 4 unit for $100,000.
Mr. Darrow: You need to bring that in black and white, you are allowed a reasonable rate of return, so just show us that.
Mr. Fusco: If you are going to lose money paying $100,000 for a 3 unit and I don’t know whether you will or won’t, but you get relief under the law notwithstanding all of the interesting questions that we discussed tonight that was the same issue in the item before you. You didn’t win, but you haven’t lost.
Mr. Steinbacher: I think I need to talk to my lawyer.
Mr. Westlake: We did table this so I would like a yes vote from the board members.
All in favor of tabling.
Mr. Steinbacher: I am paying taxes on $100,000 property.
Mr. Darrow: You would have to see the Assessment Review Board about that.
Mr. Steinbacher: We have to wait another month before we can come back.
Mr. Baroody: Yes. Get your stuff together, show your spreadsheet showing 3 units versus 4, your eviction notice anything else that shows people were in there.
Mr. Steinbacher: Ok. Thank you.
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