ZONING BOARD OF APPEALS
MONDAY, JULY 25, 2011
Members Present: Ms. Marteney, Mr. Baroody, Mr. Darrow, Ms. Calarco, Mr. Kilmer, Mr. Tamburrino and Mr. Westlake
Staff Present: Mr. Hicks and Mr. Fusco
APPLICATION APPROVED: 61 Wall Street, 175 Seymour Street, 33 Liberty Street, 193 N. Fulton Street
APPLICATION DENIED: 45 Elizabeth Street
APPLICATION TABLED: 298 Grant Avenue
Mr. Westlake: Good evening, ladies and gentlemen, this is the Zoning Board of Appeals. Tonight we have the following item: 45 Elizabeth Street, 61 Wall Street, 175 Seymour Street, 33 Liberty Street, 193 N. Fulton Street, 298 Grant Avenue
As none of the board members received the minutes of the June 27th, 2011 meeting, we will vote on the minutes at the meeting of August 29th, 2011.
Thank you.
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45 Elizabeth Street. R1A zoning district. Applicant: Jonathan Cramer. Area variance to install new driveway (front yard parking).
Mr. Westlake: Would 45 Elizabeth Street please come to the podium, tell us your name and what you would like to do.
Mr. Cramer: My name is Jonathan Cramer and I would like to put a driveway in the front of my house. I have a narrow lot there and I don’t have any off street parking. Talked with my neighbors about possibly using their driveway to drive up and park in my backyard but they said no they don’t have to have to worry about me blocking their driveway or something so that is why I applied for a variance to put a driveway in the front. I have some pictures that I will pass out to you of my property and some of other properties around town with front yard parking. The thing that makes my property different is there is elevation and will probably have to put in a retainer wall on the sides. The first picture is of my house and the following are just examples of similar types of driveways.
Mr. Westlake: Any questions from the board?
Mr. Darrow: On your drawing I don’t see where it shows the width of your property.
Mr. Cramer: Width is 27 feet. It is real narrow deep but real narrow.
Mr. Tamburrino: 27 feet I thought 57 maybe I am wrong.
Mr. Cramer: You can see in the first picture my neighbor’s driveway I don’t have a whole lot where I could squeeze one in. My yard is real deep in the back and I approached the neighbor in back on Steel Street his driveway kind of meets the backyard but he said he was selling the house and didn’t want something that would turn away a new buyer.
Mr. Kilmer: On the second page of your pictures here there is a retaining wall going under the bottom of the house is that just an example?
Mr. Cramer: Yes it is just an example I am not going under the house just a parking space. There is a different example of pictures not sure if it is page 1 or 2 there that is actually going down I just wanted to show the type of retainer wall that would be on both sides.
Ms. Calarco: Parking for only one vehicle?
Mr. Cramer: Yes. I brought somebody with me who is who is interested in the property but is adamant about having off street parking. The house is for sale.
Mr. Darrow: How many vehicles do you have?
Mr. Cramer: Personally I have 2.
Mr. Darrow: This is only for one off street parking.
Ms. Marteney: You are selling the house?
Mr. Darrow: You do not reside in this house at this time?
Mr. Cramer: No sir. I had tenants in the past and it was kind of a pain for off street parking especially in winter and now that I have somebody actually interested in it would put in an offer if I could put a driveway in.
Mr. Westlake: This is actually front yard parking and there is really no front yard.
Mr. Tamburrino: I drove down that street and looked at the street saw no parking on it all on the sides. It would be out of character of the neighborhood I think and you wouldn’t have any front yard left.
Mr. Cramer: If it would be allowed I could sacrifice my front yard because I have a big backyard. Otherwise I don’t have off street parking all winter.
Mr. Baroody: I didn’t see any letters from any neighbors.
Mr. Tamburrino: I didn’t either. I understand your plight of no off street parking but my impression I drove down Elizabeth Street and saw all these driveways and people are parking in those driveways. Seems to me there would be spaces left.
Mr. Cramer: That area can get congested, as there are quite a few multi-families around there. This use to be multi-family and I made it back into a single. When it was a multi-family the tenants each 2 vehicles and my neighbors complained that there were 4 vehicles parking on the street in front of the house.
Mr. Westlake: Thank you. Is there anyone here wishing to speak for or against the application? Ok, come forward.
Mr. Dolk: My name is Jason Dolk I currently reside at 78 Elizabeth Street I rent from my boss and I have been in the neighborhood for 5 years now. I was watching him remodel the house and I am the person that is interested in it. I know how Elizabeth Street is in the wintertime with parking on the street. I would be very interested in buying the house if there was some off street parking as I have 2 very small children and Elizabeth Street is one of the worst in the wintertime.
Mr. Fusco: I am confused by the photographs supplied by the person you are speaking on behalf of, they show driveways going to garages beneath the house.
Mr. Dolk: He was just taking pictures of retaining walls that he would use to do the project.
Mr. Westlake: Ok, thank you very much. Is there anyone else wishing to speak for or against this application? Seeing none we will close the public portion and discuss amongst ourselves and let you know shortly. I can’t see how they can make it look right and again that is just my opinion.
Mr. Tamburrino: It would take away from the character of the neighborhood.
Mr. Westlake: Anyone else?
Ms. Calarco: I guess my concern is I understand that somebody is interested but I have a problem giving front yard parking to someone who is trying to get rid of the property.
Mr. Darrow: Some of the biggest problem is the width of the lot, no access to the rear of the property so I can understand why to get it off the street but it would be in front of the window parking.
Mr. Westlake: Do I hear a motion?
Mr. Darrow: I would like to make a motion that we grant Jonathan Cramer of 13 James Street a area variance for property locat4ed at 45 Elizabeth Street for the purpose of front yard parking.
Mr. Tamburrino: I second that motion.
VOTING AGAINST: Ms. Marteney – I believe it will change the character of the neighborhood. Mr. Baroody, Mr. Darrow – I also feel that it will change the character of the neighborhood. Ms. Calarco – I am in agreement with the others. Mr. Kilmer, Mr. Tamburrino, Mr. Westlake
Mr. Westlake: Your application was not approved. Sorry. Thank you.
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61 Wall Street. C-1 zoning district. Applicant: Richard James & Laurie Marossy-James. Area variances to move existing 8 x 10 shed 5 feet from house, 1 foot from side property line and to install a second shed, 10 x 20.
Mr. Westlake: Would 61 Wall Street please come to the podium, tell us your name and what you would like to do.
Mr. James: My name is Richard James and this is my Mother, Laurie Marossy-James and we are the two that applied for these variances. We live and own the property at 61 Wall Street and in one of our drawings you can see we have an existing 8 x 10 shed. In the diagram directly above that we did have a 12 x 20 garage, and that has collapsed. The shed we want to put up right now is going to be a 10 x 20 just a little smaller. We actually got rid of the tree as you can see in the picture, which actually opens it up.
Mr. Fusco: Which tree did you get rid of?
Mrs. James: The monster willow tree, which is in the picture.
Mr. James: As you see in the last picture is shows approximately where the #12 is above the proposed new shed that is where the willow tree existed.
Mr. Tamburrino: In the same spot where the garage collapsed.
Mr. James: The shed you see in the picture it is still there everything in the picture is still there except the willow tree, which is gone.
Mr. Baroody: What collapsed?
Mr. James: In the picture approximately where the shadow is from the willow tree we did have a 20 x 10 garage there.
Mr. Tamburrino: The garage collapsed last winter?
Mr. James: Yes.
Mr. Tamburrino: So in that area that is where the new shed is going to be?
Mr. James: Yes.
Mr. Fusco: The garage that was there when did it collapse?
Mr. James: Over the wintertime.
Mr. Fusco: This winter?
Mr. James: Yes.
Mrs. James: We had a lot of snow.
Mr. Darrow: Is the other 8 x 10 shed going to remain?
Mrs. James: That is going to be moved to where you see the yellow square.
Mr. James: The reason behind us putting the 8 x 10 in the proposed spot is because where we have our existing garden allows easy access to get to our tools and what not. In the rest of the yard we have other plants and trees and directly below where the proposed shed would be we plan on putting up a blow up pools for the summertime. When all is said and done we have 2 cars, a truck and a trailer and the area where they took down the tree still has all the saw dust from it. That area has to have pressure run put down before the shed can be put on it.
Mr. Fusco: For the record it appears that the new shed that you are seeking a variance for would be 200 square feet and that the old shed that you will be relocating which is 80 square feet for a total of 2 buildings of 280 square feet. If I may ask what was the square footage of the garage that collapsed within the last year.
Mr. James: 12 x 20 – 240 square feet in addition to the 8 x 10.
Mr. Fusco: 240 square feet?
Mr. James: In addition to the 8 x 10.
Mr. Westlake: If they got rid of the other small shed would they have to be here at all?
Mr. Hicks: Still have 200 square feet of the primary shed that they are going to be using it is 150 feet maximum for accessory structure. Garages are 750.
Mr. Tamburrino: One is a garage versus a shed.
Mr. Hicks: That is correct.
Mr. Fusco: For the record what reason do you have for not replacing the garage that collapsed with something of a similar structure.
Mr. James: Originally used the garage as a form of storage and when the garage collapsed we no longer had the storage so in addition to the 8 x 10 shed that we still have 240 square feet of storage we are essentially down sizing but we are using all that storage from the 2 sheds. We have a riding lawn mower and other equipment.
Mr. Darrow: I didn’t hear Brian’s answer to what is the difference between the shed and the garage. The square footage?
Mr. Hicks: The square footage of a garage is used to house automobiles and motor vehicles 750 square feet, shed is not for an automobile or motor vehicle
Mr. Darrow: If it were able to house an automobile wouldn’t it be considered a garage then?
Mr. Hicks: Yes.
Mr. Westlake: Big for a shed 10 x 20.
Mr. Hicks: It would be the construction of the structure itself you would not be able to house an automobile on a 2 x 4 floor with a ¾ inch plywood. Will you construct as a garage or a shed?
Mr. James: We are constructing it as a shed for storage.
Mr. Darrow: It is a shed.
Mr. Westlake: Ok.
Ms. Marteney: My concern is when you move the shed it might be in front of your neighbor’s window.
Mr. James: We did look at that and we are going to push it back.
Ms. Marteney: That would be my only concern.
Mr. Westlake: Ok, thank you. Any more questions from the board? Is there anyone here wishing to speak for or against this application? Seeing none we will close the public portion and discuss amongst ourselves. It is a big lot.
Mr. Tamburrino: Actually taking less square footage now all together they used the old garage as storage any way.
Mr. Westlake: Do I hear a motion?
Mr. Baroody: I would like to make a motion that we grant Richard James and Laurie Marossy-James of 61 Wall Street four (4) area variances for the placement of a second shed and setback allowed. An area variance of one accessory structure of the allowed one accessory structure; an area variance of 5 feet of the required 10 feet from the primary structure; an area variance of 2 feet of the required 3 feet from the side line setback and an area variance of 130 square feet over the allowed 150 square feet as submitted in the plan.
Ms. Marteney: I second the motion.
VOTING IN FAVOR: Ms. Marteney, Mr. Baroody, Mr. Darrow, Ms. Calarco, Mr. Kilmer, Mr. Tamburrino, Mr. Westlake
Mr. Westlake: Your application has been approved, good luck with your project.
Mr. James: Thank you.
Mrs. James: Thank you.
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175 Seymour Street. R2 zoning district. Applicant: Isabelle Dodimead. Area variance to install new shed 8 x 12, 5 feet away from house and 1 foot away from side property line.
Mr. Westlake: 175 Seymour Street please come to the podium; tell us your name and what you would like to do.
Mr. Farrar: My name is Richard Farrar and I am here with my mother-in-law Isabelle Dodimead to get a variance to repair an existing shed on the property.
Mr. Westlake: You are going to take the old shed down?
Mr. Farrar: Yes sir the old shed will be torn down and the new shed will be installed. It seems to be that someone likes to break into the existing shed and she has had lawnmowers and gas and other items stolen out of her shed. There is no way we can secure it.
Ms. Marteney: And that is certainly the only place that you can put a shed in the yard.
Mr. Farrar: It is a very small lot.
Mr. Fusco: For the record do you know the circumstances under which the existing shed exists as a non-conforming use? The present structure appears to be non-conforming.
Mr. Farrar: She has owned the house for 10 years and it was there long before she bought the house, you can tell by the condition of it. If that is what you are asking me.
Mr. Fusco: Well 2 of the 3 variances that you are seeking appear to be already non-conformities that may well be pre-existing I don’t know. The only new variance you are seeking is the new shed will be slightly larger and moved closer to the house.
Mr. Farrar: Yes it would sir.
Mr. Fusco: And your mother-in-law has been there for over 10 years and that shed was there when she bought the house.
Mr. Farrar: Yes. The shed comes in 10 x 12 the one she wants however if it has to be a 10 x 10 or 8 x 10 – the one she purchased already is an 8 x 12.
Mr. Westlake: That gives you plenty of room to work with. Any questions from the board? Ok, thank you. Is there anyone here wishing to speak for or against this application? Seeing none we will close the public portion and discuss amongst ourselves and will have an answer in a few minutes. I can understand where she is coming from they are stealing stuff out of her shed, she can’t secure it and the new one will look a lot nicer than the old one.
Do I hear a motion?
Mr. Tamburrino: I would like to make a motion that we grant Isabelle Dodimead of 175 Seymour Street three area variances for the placement of an 8 x 12 shed: 1) 2 feet from the required 3 foot side yard setback; 2) 3 feet of the required 4 feet for rear property line setback and 3) 5 feet of the required 10 feet from the primary structure.
Mr. Baroody: I second that motion.
VOTING IN FAVOR: Ms. Marteney, Mr. Baroody, Mr. Darrow, Ms. Calarco, Mr. Kilmer, Mr. Tamburrino, Mr. Westlake
Mr. Westlake: Your application has been approved, good luck with your project.
Mr. Farrar: Thank you very much.
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33 Liberty Street. R1A zoning district. Applicant: Robin Madill. Area variance for above ground pool (too close to rear and side property lines) and variance for new shed 8 x 12, too close to rear property line.
Mr. Westlake: 33 Liberty Street please come to the podium; tell us your name and what you would like to do.
I don’t see 33 Liberty Street we will hold that to the end of the meeting and call it again.
Mr. Westlake: Is 33 Liberty Street here? No one appears to be here.
Mr. Baroody: I would like to make a motion that we table 33 Liberty Street until the August 2011 meeting.
Ms. Calarco: I second that motion.
VOTING IN FAVOR: Ms. Marteney, Mr. Baroody, Mr. Darrow, Ms. Calarco, Mr. Kilmer, Mr. Tamburrino, Mr. Westlake
Mr. Westlake: 33 Liberty Street tabled until the August 2011 meeting. _______________________________________________________
193 N. Fulton Street. R1 zoning district. Applicant: Frederick Moochler. Area variance for widening and lengthening existing driveway.
Mr. Westlake: 193 N. Fulton Street please come to the podium; tell us your name and what you would like to do.
Mr. Moochler: My name is Fred Moochler of 193 N. Fulton Street and I would like to widen my driveway 8’ x 32’ so we don’t have to park on the street, we have a van, station wagon and a sedan. The street is narrow with no sidewalks or curbs.
Mr. Westlake: This is just widening of the driveway right?
Mr. Darrow: That is what it looks like and it looks like it has already been done. You can see where the other has been added.
Mr. Moochler: Yes.
Mr. Darrow: It is off to the south.
Mr. Baroody: Looking for a permit for something that is already there?
Mr. Moochler: Yes.
Mr. Fusco: What were the circumstances by which you come before us it looks like you already did this and now you are asking for permission after you did it.
Mr. Moochler: I came to get permission for a fence and shed and they came and did the driveway and said don’t worry about a permit the people that did it I asked the girl here should I have had a permit and she took the application and checked it and said yes you need a variance.
Mr. Fusco: What about the curb cut? I can see the driveway what about how do you get into that driveway?
Mr. Moochler: There are no curbs or sidewalks on the street it is a narrow street.
Mr. Fusco: No curbs?
Mr. Moochler: No.
Mr. Westlake: It is a dead end street and will get the vehicles off the street and will make it easier for snow plowing.
Mr. Darrow: It is a narrow street.
Mr. Westlake: Thank you sir.
Mr. Fusco: I am not certain as a matter of law if this is front yard parking. It is not in front of the house. No matter just an observation.
Mr. Darrow: My initial thought many times ago the way I understood it as long as the car stops in front of the house if the driveway went down the side then it would no longer be considered front yard parking. If the car extends into front yard then it is front yard parking.
Mr. Westlake: We have to look at each case as an individual basis.
Mr. Fusco: Only reason I am making this observation and I don’t know the answer to it I have had to think about it in the past because I also represent the Village of Aurora where this is also a common problem. This is easily distinguished from the 45 Elizabeth Street item earlier on the agenda and I think the record should reflect that. The photograph which unfortunately is not a part of the minutes people can’t see it but the photograph obviously distinguishes this from the decision you made earlier tonight. The only reason that I say that is that we just came off the Juhl case which we successfully litigated which involved a similar issue and in that case Mr. Juhl and Mr. Juhl’s attorney read the minutes that are on the Internet and thought from those minutes that we were being inconsistent. In this particular case the
photograph which won’t be part of the minutes speaks for itself and I only as a warning to people who read the minutes and somehow think we are being inconsistent when in fact we aren’t.
Ms. Calarco: This driveway goes up to garage the other did not in fact it went into the front of the house.
Mr. Darrow: This driveway is extending into the side yard not in front of a window, different as night and day.
Mr. Westlake: Is there anyone here wishing to speak for or against this application? Seeing none we will close the public portion and discuss amongst ourselves and will have an answer in a few minutes.
Mr. Darrow: This is pretty clear-cut.
Mr. Westlake: Do I hear a motion?
Mr. Darrow: I would like to make a motion that we grant Fredrick Moocher of 193 N. Fulton Street an area variance for the purpose of installing and widening his driveway to the south of his property as submitted in his plot plan.
Ms. Calarco: I second that motion.
VOTING IN FAVOR: Ms. Marteney, Mr. Baroody, Mr. Darrow, Ms. Calarco, Mr. Kilmer, Mr. Tamburrino, Mr. Westlake
Mr. Westlake: Your application has been approved. Come for the permit next time before hand. (Everyone laughs)
Mr. Moochler: Thank you.
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298 Grant Avenue. C3 zoning district. Applicant: James Leach/Frontier Development LLC. Area variance for reduced rear setback buffer.
Mr. Fusco: Before this is called it appears that the developer and the neighbor who may or may not be opposed to the project with the neighbor’s attorney are out in the hallway trying to work something out. Apparently there is a history of litigation with this property that predates my being here I was told that today. I don’t know for certain I have to speak to my predecessors about that. I read the application and if there going to be litigation this time around I am hoping to have some of the answers.
Mr. Baroody: Make a motion to table it until they get their stuff straightened out before they come here.
Mr. Fusco: We have the applicant and the neighbor’s attorney here.
Mr. Westlake: We are ready now. Right now there is trouble between the neighbors.
Mr. Fusco: I don’t know if there is or isn’t I am told that there had been previously when either Tom or Mike had the job the neighbor may be perfectly satisfied with what is going on here and that would all be well and good but from a legal standpoint a layman obviously filled out this application and doesn’t understand the nature of the answer that would satisfy the board.
Mr. Broody: We have to make sure that that is something that we need to examine too. If it is something we don’t need and it turns into a civil issue that is not for us to decide.
Mr. Fusco: If we grant this because we think it is a good idea but the proof and support of the application is sub-standard we are the ones that verified.
Mr. Westlake: Let’s hear what they have to say. 298 Grant Avenue please come to the podium, tell us your name and what you would like to do.
Mr. Blair: Mr. Chairman my name is Tom Blair. I was just retained on Friday by Lloyd Simon LLC which is the owner of the Prospect Point Apartments and together with an adjacent property owner we are currently conversing with the applicant in front of the Zoning Board of Appeals in order to try to get the sides together on the misunderstandings or fundamental disagreements and I would like to resolve it that way if I can.
Mr. Westlake: Do you want to table?
Mr. Blair: Would the board consider adjourning for 5 minutes so we can finish up out in the hallway?
Mr. Westlake: We will go to another matter here and come back to you.
Mr. Blair: Thank you for your patience.
Mr. Fusco: This property apparently does have a history of litigation it may or may not but I was made aware of this today so when we have circumstances like that we want to be very careful that we legally dotting all the “i”s and crossing the “t’s” because if there is an Article 78 action brought in the wake of whatever decision is made in your favor or against you we want to be able to defend whatever it is we decide.
Having said that I am glad to see you and the neighboring landowners have been in the hallway discussing issues and maybe solving things or not solving things I don’t know and I don’t want to get into that. What I do want to get into however is that your application before us appears to have not been prepared by a lawyer it appears to have been prepared by somebody who may not have full comprehension of the elements required for the granting of an area variance in the State of New York. With that said even if there were concerns that the neighbors had prior to tonight and you worked them out in the hallway prior to coming in here and I think that is great, my experience is that often times these projects possibly controversial projects people don’t come to these meetings or don’t speak they wait until the 27th, 28th or 29th or 30 days statute of limitations and bring an action. So even if you may have resolved your situation with some landowners or some people who may be grieved in
the neighborhood that doesn’t mean that you have resolved your potential issues with everybody especially people who aren’t here. It would therefore be my recommendation to you that you ask this board for an adjournment to give you the opportunity to consult with counsel and amend your application and some of the answers thereto accordingly. You don’t have to do that but denial tonight would be fought with the risk and for the reasons I have already stated so could approval.
Mr. Sgromo: My name is Greg Sgromo and I ask that this matter be tabled until the next meeting.
Mr. Westlake: Do I hear a motion?
Mr. Kilmer: I would like to make a motion that we adjourn this matter until the next meeting.
Mr. Baroody: I second that.
VOTING IN FAVOR: Ms. Marteney, Mr. Baroody, Mr. Darrow, Ms. Calarco, Mr. Kilmer, Mr. Tamburrino, Mr. Westlake
Mr. Westlake: 298 Grant Avenue tabled until the next meeting.
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