ZONING BOARD OF APPEALS
MONDAY, NOVEMBER 29, 2010
Members Present: Mr. Baroody, Mr. Darrow, Ms. Calarco (came in during third application) Mr. Tamburrino, Mr. Bartolotta and Mr. Westlake
Member Absent: Ms. Marteney
Staff Present: Mr. Fusco, Ms. Jensen and Mr. Hicks
APPLICATIONS APPROVED: 72-74 Garrow Street, 71 Holley Street, 155 Curtis Place, 79 Capitol Street
APPLICATIONS TABLED: 158 Seymour Street
Mr. Westlake: Good evening, ladies and gentlemen, this is the Zoning Board of Appeals. Tonight we have the following item: 72-74 Garrow Street, 71 Holley Street, 158 Seymour Street, 155 Curtis Place, 79 Capitol Street
If there are no errors, omissions or additions to last month’s minutes of the meeting, the minutes will stand as written. Thank you. Tonight we only have 5 members here we are a 7 member board. You have to have 4 affirmative votes for your proposal to pass. Take that into consideration before you come to the podium.
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72-74 Garrow Street. R1 zoning district. Area variance for non-conforming lot. Applicant: David Brooks
Mr. Westlake: 72-74 Garrow Street would you please come to the podium. Ms. Jensen can you give us a synopsis of what was said at the Planning Board meeting?
Ms. Jensen: This was before the Planning Board on November 3 and there was a Negative Declaration for SEQRA.
Mr. Westlake: Ok, thank you. If you lift up the microphone state your name and tell us what you want to do again.
Mr. Brooks: My name is Dave Brooks I am building 2 homes at 72-74 Garrow Street and my situation is that I am lacking 2.5 feet on the property in order the requirements of the Auburn City Building Code and am requesting a variance for 2.5 feet on each lot.
Mr. Westlake: Ok, thank you. Questions from the board?
Mr. Darrow: We discussed it pretty good last month.
Mr. Westlake: Thank you. Is there anyone here wishing to speak for or against this application? Seeing none we will discuss amongst ourselves and let you know in a few minutes.
Mr. Baroody: I would like to make a motion that we grant David Brooks of 10 Aiken Avenue a 2.5 foot variance of the 60 foot lot width requirement per lot in order to create two (2) lots on Garrow Street as submitted.
Mr. Darrow: I second that motion.
VOTING IN FAVOR: Mr. Baroody, Mr. Darrow, Mr. Bartolotta, Mr. Tamburrino, Mr. Westlake
Mr. Westlake: Your application has been approved. Good luck with your project.
Mr. Brooks: Thank you.
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71 Holley Street. R1A zoning district. Area variance for handicapped ramp. Applicant: Doris Brown
Mr. Westlake: 71 Holley Street here tonight? Please come to the podium speak into the microphone and tell us your name and what you would like to do.
Mr. Sternberg: My name is Craig Sternberg and I am contractor for Doris Brown who is having Block Grant work and Doris at 71 Holley Street couldn’t be here tonight she cares for her disabled son and she would like a ramp on the front of their house. It is within the easement for the road it wouldn’t encroach on the sidewalk it will terminate at the end of her driveway.
Mr. Westlake: Any questions from the board?
Mr. Baroody: It is going to come out from the house then jog to the right down to the driveway correct?
Mr. Sternberg: Correct. This was designed by Enable an advocacy group that helps people with these types of things.
Mr. Westlake: Ok, thank you. Any more questions from the board?
Mr. Tamburrino: Is it an aluminum structure or wood?
Mr. Sternberg: It will be a wooden structure removable if need be some Cities prefer they are labeled temporary.
Mr. Baroody: Sunset clause.
Mr. Westlake: Is there anyone here wishing to speak for or against this application? Seeing none we will discuss amongst ourselves and let you know in a few minutes.
Mr. Tamburrino: The sunset clause once the handicapped person no longer resides there it will expire.
Mr. Darrow: I have a question for Mr. Hicks. On this area variance is there any footage figure that needs to be taken into consideration or is it strictly an encroachment issue?
Mr. Hicks: I don’t understand your question.
Mr. Darrow: They are looking for an area variance I am looking for a variance of “x” amount of feet or is that not necessary as it is strictly an encroachment on a City right of way?
Mr. Hicks: If the structure were in the front yard, which it basically is it encroaches into the entire front yard.
Mr. Darrow: Ok.
Mr. Baroody: Can we use the sunset clause?
Mr. Hicks: Yes.
Mr. Darrow: So it is strictly an area variance for the purpose of erecting the ramp.
Mr. Hicks: Exactly.
Mr. Darrow: That is all that I was concerned about. I would like to make a motion that we grant Doris Brown of 71 Holley Street a area variance for constructing and erecting a handicapped ramp on the front of the property as submitted in plot plan and expire with a sunset clause upon the present handicapped person no longer needing it.
Mr. Westlake: Do I hear a second?
Mr. Tamburrino: I second that motion.
VOTING IN FAVOR: Mr. Baroody, Mr. Darrow, Mr. Bartolotta, Mr. Tamburrino, Mr. Westlake
Mr. Westlake: Your application has been approved, good luck with your project.
Mr. Sternberg: Thank you.
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158 Seymour Street. R2 zoning district. Area variance for conversion from 2 to 3 units.
Mr. Westlake: 158 Seymour Street, are you here? Please come to the podium, state your name clearly and tell us what you would like to do.
Mr. Gordon: My name is Mike Gordon, I am the owner of 158 Seymour Street and I am just looking for a variance the property presently has reverted to a 2 family it has always been a 3 so I am looking to convert usage to a 3 unit.
Mr. Westlake: Do you know the reason it reverted back?
Mr. Gordon: Due to occupancy.
Mr. Westlake: Are there any questions from the board?
Mr. Tamburrino: When you purchased the property did you realize it was a 2 family at the time?
Mr. Gordon: I knew at the time that it has reverted to 2 it has always been a 3 I got previous sales indicated it sold as a 3, there are 3 mailboxes, 3 meters there. I spoke with the neighbors and have 2 or 3 letters from the neighbors if you would like to see them.
Mr. Tamburrino: Did you do a financial analysis return on investment based on your
Mr. Gordon: I knew it was a 2 when I bought it.
Mr. Tamburrino: Ok, thank you.
Mr. Darrow: What is your basis for asking of conversion for a 3 is it a financial hardship, lack of return on investment because all that we have a 3 pages which really doesn’t say a lot except general information.
Mr. Gordon: There is no changing the character of the neighborhood but outside of that it is not so to speak a financial hardship for me resale value wise as a 3. I am not looking to sell I put a more money into the property than I paid for it. See these letters from the neighbors and from the previous sale they are in here.
Mr. Fusco: We will accept the letters from the neighbors and make them a part of the record.
Mr. Gordon: The neighbor on the right he didn’t write anything but he said it has always been used as a 3 and he is happy with what we have done with the property.
Mr. Baroody: When you bought it you bought it as a 2 family?
Mr. Gordon: Yes it reverted its usage. It was advertised as a 3 but I knew it was a 2 as I called the City.
Mr. Darrow: When you bought it was it listed through a real estate agency?
Mr. Gordon: It was a HUD foreclosure listed as a 3.
Mr. Darrow: For the record the Re/Max listing that shows 3 electric meters, 3 apartments.
Mr. Fusco: Include those in the record.
Mr. Westlake: The only thing he needs is square footage there is no parking problem Brian?
Mr. Hicks: The only issue here is the area variance for the size of the lot to be able to maintain a 3-unit status.
Mr. Fusco: Why did he say in the application that there is ample off street parking?
Mr. Hicks: There is ample off street parking. It is the lot size that is requirement for a 3 unit 10,200 square feet and his lot is less than that total of 10,200.
Mr. Fusco: How much parking is on the site?
Mr. Hicks: I believe he has parking for well over 6 vehicles.
Mr. Westlake: Any more questions from the board?
Mr. Bartolotta: Just the lot size so other than that all of the requirements are complied with but for that it would be a valid 3 unit.
Mr. Hicks: With a review of the conversion application the only thing that was lacking was the lot size for a 3 unit.
Mr. Westlake: Is there anyone here wishing to speak for or against the application? See none we will discuss amongst ourselves and let you know in a few minutes.
Mr. Fusco: Members of the board I will remind you that last month we had a very similar case
Mr. Westlake: That was parking
Mr. Fusco: Well no it was an area variance to accommodate a conversion. I am not going to tell you how to vote one way or the other you can vote your own way.
Mr. Westlake: That is why we asked the question about parking last month was parking.
Mr. Fusco: I will say as I advised you last month that whatever your decision for or against that you attach to it adequate rational to support either the approval or denial of the application. Again very similar case to something you decided a month ago.
Mr. Darrow: My biggest concern is bought it as a 2, knew it was a 2. There has been no evidence offered of any form of hardship. There has been no evidence offered up how much money he has put in it other than more than he has paid for it. Yes he does have 2 neighbors who are grateful that it is being cleaned up and that but then again it doesn’t fit our current Comprehensive Plan to be expanding upon non-conforming use.
Mr. Bartolotta: Andy I wonder if you could just go quickly through the 4 criteria that we
Mr. Fusco: In fact in question #4 in the application I want to be right down the middle and not tell you how to vote that is your call not mine, but for example he has to prove economic injury that is one of the elements. He doesn’t have to prove hardship as much as would be needed for use variance but he has to prove economic injury. In this case look at answer 11c where the question asks for the present market value of the property, which would be one measure of whether you are suffering economic injury and he answers not attainable at this time. Towards the issue of economic injury I direct your attention to answer 10 where he appears to allege that the economic injury is high assessment. Assessments aren’t something that are carved in stone they go up or down depending upon the condition of the property.
If it highly assessed because some Assessor thought it was a 3 unit when in fact it was 2 it should go down accordingly. I don’t have that evidence in front of me I don’t know whether it was assessed based upon the belief that it was a 2 or based upon the belief that it was a 3 and high suggested worth what you and I may consider low somebody else may consider high and that sort of thing so that is one of the issues.
Another issue to concern yourself with an area variance is there another method to achieve compliance. Question 14 where the applicant says the only option I have the way it has been explained to me by Brian Hicks. Then there is the issue of an undesirable change in the neighborhood I think we can summarize the evidence there that the people who have written have written in Mr. Gordon’s support that it is arguably not undesirable for this to be a 3 family.
Again these are the elements and whether the application meets them or not is your call all I am asking is that your decision be attached to rational that I can defend if needed.
Mr. Bartolotta: And in regard to an area variance it is not necessary that all the elements exist.
Mr. Fusco: It is necessary that all the elements be proven; the only element that is not necessary in an area variance case is a self-created hardship. That is an element that is fatal in a use variance case it is not fatal in an area variance case and here we have Mr. Gordon very forthcoming in telling us I knew it was a 2 when I bought it even though it was listed as a 3 I knew it was a 2. He is now what somebody might consider self-created hardship however knowledge or not it is not fatal the fact that he knew it was 2 when it he bought it even though it was listed as a 3. It is the one exception if you will to the elements being satisfied and an area variance given.
Mr. Westlake: I agree with what Mr. Darrow said earlier that we had very little information in the packet. We have an extra member her now but she just came in so I am sure she won’t vote you need 4 affirmative votes tonight if 2 of us decide to vote no then you can’t bring it back to us at all. If you would like to table it come back with more information next month as far as economic hardship and some of the other questions that were asked by Mr. Fusco, that would be ok, but the option is yours. We can vote on it tonight or you can table and come back with more information that is up to you.
Mr. Fusco: One thing I will tell you while you are thinking about your options under the law Ms. Calarco would be allowed to vote next month so long as she brings herself up to speed by reviewing the application and reviewing the minutes specifically the testimony that you gave before she arrived so we would have one more member here so to speak assuming everybody shows up next month.
Mr. Gordon: I guess I will table it.
Mr. Westlake: Ok.
Mr. Baroody: I make a motion that we table 158 Seymour Street, applicant Michael Gordon until next month.
Mr. Hicks: Mr. Chair can we be clear about what information is being requested from Mr. Gordon so I can make some notes on the application?
Mr. Fusco: Well that is legal advice.
Mr. Baroody: Most area variances come with counsel. Come with a lawyer with a well-prepared case.
Mr. Darrow: I personally would like to see some numbers that show that (a) what he has put into the property (b) what you expect in return out of the property and (c) why it really is not economically feasible for you to only have the 2 units. If you bring that back I think you are going to make some leaps and bounds.
Mr. Gordon: Ok.
Mr. Westlake: We have a motion on the table.
Mr. Darrow: I second the motion.
VOTING TO TABLE: Mr. Baroody, Mr. Darrow, Mr. Bartolotta, Mr. Tamburrino, Mr. Westlake
Mr. Westlake: 158 Seymour Street tabled until the December meeting.
Mr. Gordon: Thank you.
Mr. Westlake: Did you get enough information to know what to bring back?
Mr. Gordon: Yes.
Mr. Westlake: Ok.
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155 Curtis Place. R1A zoning district. Area variance to attach garage to house.
Mr. Westlake: 155 Curtis Place. Come to the podium speak clearly and tell your name and what you would like to do.
Mr. Gera: Paul A. Gera I live at 155 Curtis Place. We want to build a breezeway to house a mudroom between the garage and the house.
Mr. Westlake: Thank you. Any questions from the board?
Mr. Tamburrino: I see you have a fence.
Mr. Gera: That will be removed.
Ms. Calarco: You are saying breezeway then mud room, breezeway is open a mudroom is enclosed.
Mr. Gera: It will be enclosed probably with windows and a door in the front.
Ms. Calarco: Ok.
Mr. Westlake: Is there anyone here wishing to speak for or against this application? Seeing none we will discuss amongst ourselves and let you know in a few minutes.
Mr. Darrow: I think it is pretty cut and dried he can’t move the garage it is understandable what he wants to do. It is a tight area as it is.
Mr. Tamburrino: It is very small.
Mr. Darrow: I would like to make a motion that we grant Gina and Paul Gera 155 Curtis Place a 5 foot area variance for the purpose of constructing a entranceway between the garage and wall to be completed as submitted in plot plan.
Mr. Baroody: I second that motion.
VOTING IN FAVOR: Mr. Baroody, Mr. Darrow, Ms. Calarco, Mr. Bartolotta, Mr. Tamburrino, Mr. Westlake
Mr. Westlake: You application has been approved good luck with your project.
Mr. Gera: Thank you.
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79 Capitol Street. R1 zoning district. Area variance for subdivision. Applicant: Steven Buschman on behalf of Harold and Margaret Stevens.
Mr. Westlake: 79 Capitol Street. Please come to the podium, state your name and tell us what you would like to do.
Mr. Buschman: Good evening, my name is Steven Buschman and I represent trustee Marcia A. Redmond on behalf of Harold and Margaret Stevens Trust. Our application simply stated is looking to move a boundary line between two properties located in the City of Auburn less than 5 feet approximately 4 feet in order that there be a more natural boundary to the driveway on the proposed map on Capitol Street in order that we may sell both parcels of property without dealing with encroachment agreements or driveway agreements.
Mr. Westlake: I can see where you are moving B here that is the 4 feet what I am confused on is over here on A looks like the line is in the middle of that driveway too.
Mr. Buschman: Yes the other property was previously transferred thankfully to a neighbor. This property was owned by one owner for about 80 years. The boundary lines were not distinguished during that period of time. The properties went into trust. Owner of the property was Mr. Harold E. Stevens he died it came to his wife’s attention through the trust and the trustee Marcia Redmond that there would be boundary issues thereafter. The one property was sold and there was a driveway agreement because they lived in the middle property.
Mr. Fusco: A was split?
Mr. Buschman: No A and C and then if you what would be parcel 22 was all part of this. 22 was sold but with a driveway agreement between A and parcel 22 because that shared driveway kind of line in old communities they have 2-shared driveway for 3 properties and it went back towards the back of the properties.
Mr. Tamburrino: You can see it when you drive by.
Mr. Buschman: Splits at the back of the property. New parcel A and 22 shared a driveway on parcel 20 you need a shared driveway because that driveway just accesses parcel 20 or the new proposed parcel C.
Mr. Baroody: These are the houses that Harold had the houses side by side?
Mr. Buschman: 20, 21, 22 actually I think it goes further back than that I believe his wife father’s bought 21 back in 1925 or 1930.
Mr. Westlake: That would make A lot
Mr. Buschman: Substandard making C closer to standard I am not building, I am not modifying, I am not destroying. I am moving the boundary lines so that the driveway that is suppose to go with C fully goes with C and the new owner of A + B don’t have any issues with the owner of C by having a driveway or encroachment agreement which there are other issues that are coming into play including ownership including maintenance including repairs and it makes properties less marketable. I have a purchaser and a purchase contract that will buy an even with less square footage because they don’t want issues nor a boundary line on the other parcel of property. The contract right now is contingent on moving that property line 4 foot so C + B would be 1 new parcel and A would be one parcel.
Mr. Baroody: You are saying someone owns 20 and 21 now same person.
Mr. Buschman: Yes 20 and 21.
Mr. Tamburrino: If you drive by it makes sense what you want to do.
Mr. Darrow: I have one question for counsel, do we need to do a short form SEQRA for this because it involves
Mr. Fusco: Some types of subdivisions
Mr. Buschman: This is my first go around normally I would transfer one part of the parcel but I am trying to accomplish this in the right fashion and how it was explained I had the subdivision map which is a survey map here to get subdivision approve but because it is non-conforming I had to come in front of you first.
Mr. Fusco: An area variance generally is a type II on the SEQRA, which means they are exempt from a SEQRA review. Here would be an involved agency even though this is an exempt action because the Planning Board when it comes to them will be required by law to a SEQRA review and therefore a coordinated before you so my recommendation would be that you do two things. It sounds to me and again I don’t want to tell you how to vote but I am seeing some nods of heads that this proposal makes sense and that there may well be a majority of the members of the board who want to vote in favor of this as well. I think what you can also do at this time is beg off on the issue of lead agency status and put that in the minutes to allow the Planning Board to conduct its SEQRA reviews as far as a subdivision at its next meeting and
that you have no objection.
Mr. Darrow: That is what I was getting at it being contingent upon Planning Board making a Negative Declaration for SEQRA review.
Mr. Fusco: What I would like you to do in addition to making it contingent is to put it on the record that you have no objection that the Planning Board being lead agency and that you have no comment one way or the other regarding the SEQRA application.
Mr. Darrow: I got it.
Mr. Westlake: Is there anyone here wishing to speak for or against this application? Seeing none we will discuss amongst ourselves and let you know in a few minutes.
Mr. Darrow: I would like to make a motion that we grant the Harold and Margaret Stevens Trust, 79 Capitol Street a 4 foot area variance for the purpose of a subdivision as plotted on Anderson Survey property 21 and 22. It is also contingent upon a Negative Declaration of Planning Board SEQRA review and Zoning Board motions that Planning become lead agency as far involvement for SEQRA review goes.
Mr. Baroody: I second that motion.
VOTING IN FAVOR: Mr. Baroody, Mr. Darrow, Ms. Calarco, Mr. Bartolotta, Mr. Tamburrino, Mr. Westlake
Mr. Westlake: Your application has been approved.
Mr. Fusco: In addition to having this as part of the minutes of our meeting on a separate page we can have this decision provided to Mr. Buschman as well so that he can file it in miscellaneous documents and pick it up on the abstract to show no cloud on the title.
Mr. Buschman: Thank you.
Meeting adjourned at 8:00 p.m.
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