Zoning Board of Appeals
Minutes
August 20, 2014
Landuse Meeting Room
Members present: Acting Chair Robert Fuster Sr., (RF); Robert Fuster Jr. (RFjr), Al Harper, (AH); and Jedd Hall, (JH)
Absent with notification: Ned Douglas, (ND); Shawn Leary Considine, (SLC); Cliff Snyder, (CS); Ethan Berg, EB
Staff present: Land Use Clerk Peggy Ammendola, (PA)
Mark Nulman, 21 Schermerhorn Park (Map 40, Lot 52) Variance, Section 5.1.8.l5.b. to construct an additional curb cut at a residence.
There were eleven members of the public present. There was no correspondence.
Presenting the application and representing her brother, Mark Nulman, was Sharon Strassfeld. He has given her Power of Attorney.
RF explained to Ms. Strassfeld the process of the hearing. He said she was entitled to five board members, but tonight there were only four and all four would have to agree for the petition to be granted. If she would like to have five members present, the hearing could be continued until five were available, or, if she preferred, the Mullin Rule could be invoked whereby a fifth member could listen to the audio of this hearing and at a continued hearing a vote could be taken in which four would have to agree to the petition in order for the variance to be granted. Ms. Strassfeld was also advised that if at any time before the decision phase she wanted to withdraw her petition, she could do so, but if she proceeded and the petition was denied, the petitioner could not resubmit a petition within a two year
period unless there was a materially altered plan or concept presented. Ms. Strassfeld opted to present her application.
Ms. Strassfeld said that when her brother purchased the property in May 2014, there was an upper drive way which permitted access to the kitchen. The house has a unique elevation, with an attached garage at a lower level. Access to the living area via the lower driveway is to enter the structure, go around the boiler room and up a narrow flight of cellar steps. (There are exterior stairs which lead from the lower drive to the front of the house.) Ms. Strassfeld wanted to upgrade the upper driveway which was “rutted”. She had been under the impression that this drive was always used, but a contractor with whom she consulted, advised her to discuss with the DPW. She met with DPW Superintendent Sean VanDeusen who advised her that she would have to file for a variance.
Ms. Strassfeld said that her brother and sister-in-law have back issues and it is apparent the upper drive way has been in use for a period of time. She recalled that Ms. Hall, the former owner, used the upper drive way to meet the prospective purchaser for one of the pre-closing inspections. She also has a recollection that someone, perhaps the broker, said that the upper drive was also used. She has no knowledge if there was ever a curb cut. It was established that until Mr. Nulman will not inhabit the house until he retires from his post overseas in a few years, but Ms. Strassfeld said that she felt that with the photographic evidence that the upper driveway existed, it was best to seek permission now rather than later.
Christian Deckert, 27 Schermerhorn, a direct abutter who recently purchased his home, said that when shopping for his home he looked at this one and he said it was “natural” to use the upper driveway, and the lower driveway seemed to be a “mistake”.
RF read from the Section from which Ms. Strassfeld was seeking relief:
No more than 1 curb cut per lot. The ZBA may allow an additional curb cut if it finds that an additional curb cut would materially improve safety for vehicular traffic or pedestrians using the site or traveling on adjacent public ways, or a secondary curb cut for emergency vehicular access only is desirable and the cut shall be secured for that purpose.
Speaking in opposition to the petition were the following:
Sue Lyman, 28 Schermerhorn, said that she and her husband, Larry Lane are opposed. She said that the drive was used by Sarah Hall as a “stop gap” measure due to her declining health. The Petitioner has been using this upper drive for her contractors which have created ruts, and that for the last 21 years there has never been a curb cut. The upper driveway is directly across from her drive and she feels this would have a negative impact to her. She feels a second curb cut devalues the property and states that the ZBA’s mission is to maintain property values in the town. She said that it is apparent that the petitioner has not provided the required certified copy of the plot plan and sketch of proposal. (RFjr wanted it clarified for the record that Ms. Lyman’s reference to
property values is a town general bylaw and not in the Zoning Bylaw.)
David Klausmeyer says that the neighbors “honored” Sarah Hall by not opposing her use of the upper drive due to her poor health. He understands why the new owners would want the upper drive, but he feels the new owners were fully aware the primary drive is the lower drive. A second driveway should not be allowed. Ms. Strassfeld disputed the last statement.
Sue Hoffman, 15 Schermerhorn Park, said that when Sarah Hall became ill, she used it a few years but only in the winter
Mary Jane Fromm, 32 Schermerhorn, said that there was never a second drive until the last two years when Sarah started using it, but only in the winter. She maintains the property was never configured to have an upper drive.
Maria Black, 31 Schermerhorn Park, wanted the Board to know that she agrees with the opposition.
Ms. Strassfeld was asked if she wanted to withdraw without prejudice and she responded that she wanted to proceed.
The public portion of the hearing was closed.
Discussion ensued among the Board members in reviewing the section of the zoning bylaw from which the Petitioner applied.
RF made a motion to approve the Petitioner’s request. JH seconded the motion.
Discussion continued among the Board members. Comments included, but not limited to, that two driveways could be beneficial, but the Petitioner has not met the burden. There is evidence the upper drive has been used even though there isn’t a curb cut; and there has been no demonstration of a safety issue that would be improved by neither the second curb cut nor a hardship. It was also noted that there was a procedural deficiency as the Petitioner did not present a plot plan and drawing with setbacks. It was suggested that the Petitioner be given the opportunity to withdraw and resubmit with the proper specs as a denial would mean that they could not resubmit any sooner than two years.
Ms. Strassfeld said that she would like to withdraw.
Ms. Lyman stated that she believed that procedurally a petitioner is only given the opportunity to withdraw a petition before the ZBA delivers their opinion. RF responded that he wasn’t sure, and JH said that the members only expressed their opinion, but had not voted; therefore the motion could be withdrawn.
RF made a motion to withdraw his motion. JH seconded the motion and the Board voted to agree 4-0. The petitioner was permitted to withdraw the petition.
Minutes: August 6, 2014-Tabled as there was not a quorum.
Respectfully submitted,
Peggy Ammendola
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