Zoning Board of Appeals
Village of Tarrytown
Regular Meeting
May 12, 2008 8 p.m.
PRESENT: Members Maloney, Brown, Jolly, Merrill-Verma; Counsel Shumejda;
Secretary D’Eufemia
ABSENT: Chairwoman Lawrence
Mr. Maloney chaired the meeting in Ms. Lawrence’s absence.
APPROVAL OF MINUTES
Mr. Jolly moved, seconded by Ms. Brown, that the minutes of April 14, 2008, be approved as submitted. Ms. Merrill-Verma abstained. All others assented. Motion carried.
PUBLIC HEARING – CIPRIANO – 2 GLENWOLDE PARK
The Secretary read the following Notice of Public Hearing:
PLEASE TAKE NOTICE that the Zoning Board of Appeals of the Village of Tarrytown will hold a public hearing at 8:00 p.m. on Monday, May 12, 2008, in the Municipal Building, 21 Wildey Street, Tarrytown, New York to hear and consider an application by
Stephen and Jean Cipriano
2 Glenwolde Park
Tarrytown, NY 10591
for a variance from the Zoning Code of the Village of Tarrytown for property located at the above address regarding construction of various small additions requiring the following variance:
Increase in the degree of non-conformity: (§305-18A(1))
1. Side yard setback is required to be 10 ft. and 8.8 ft. exists
Documents are available for inspection in the Planning and Zoning Office at Tarrytown Village Hall. The property is shown on the Tax Maps of the Village of Tarrytown as Sheet 25, Block 98, Lot 24 and is located in an R-7.5 (Residential) zone.
All interested parties are invited to attend and be heard. Access to the meeting room is available to the elderly and the handicapped. Signing is available for the hearing impaired; request must be made to the Village Clerk at least one week in advance of the meeting.
The certified mailing receipts were submitted.
Mr. Sam Vieira, architect, stated this project is basically a remodeling and renovation of almost the entire house. There will be additions in different parts of the house. The reason they are before the Board is because there is a little corner at the northeast of the existing garage, which encroaches on a side yard. It is 8.8 ft. where 10 ft. is required. That is a non-conformity and they will be extending that line. The mailings were turned in and all but one green card was returned. The only one not returned was Jardim Estates. On the side yard with the encroachment, there is a 15 ft. easement that separates the two properties. There is another 15 ft. beyond the lot line so whatever encroachment exists, it has minimal impact.
Upon inquiry from Mr. Maloney, Mr. Vieira stated the garage will be for two cars. Currently it is the size of a 1-1/2 car garage.
Upon inquiries from Mr. Jolly, Mr. Cipriano stated the four neighbors maintain the easement and if it needs repaving, the neighbors will share that cost.
Mr. Maloney questioned whether anyone wished to address the Board on this application. No one appeared.
Mr. Maloney reported receipt of the following memo dated May 12, 2008, from Michael Blau, Environmental Review Officer:
“Cipriano – 2 Glenwolde Park - I have reviewed this application for construction of various small additions. All proposed work is in compliance with the Zoning Ordinance. The variance is required because the existing garage is 8.8 ft. from the side yard rather than the required 10 ft. I have determined the proposals appear to pose no significant adverse environmental impact. Should the Board agree, you may make a negative declaration under SEQRA.”
Mr. Maloney moved, seconded by Mr. Jolly, and unanimously carried, that the hearing be closed.
Mr. Jolly moved, seconded by Ms. Brown, and unanimously carried, that the Board determines there will be no significant adverse environmental impacts as a result of granting the variance for the proposed project.
Ms. Brown moved, seconded by Ms. Merrill-Verma, and unanimously carried, that the Board approves the requested variance for 2 Glenwolde Park subject to:
1. Approval of plans by the Building Inspector
2. Approval of plans by the Architectural Review Board
3. Obtaining a building permit for the project within two years.
CONTINUATION OF PUBLIC HEARING – DECECCHIS – 181 SOUTH BROADWAY
The Board reported receipt of the following memo dated May 5, 2008 from Counsel Shumejda:
“The purpose of this memorandum is to advise the Zoning Board of Appeals whether it will be necessary for the applicant to apply for a new use variance in order to permit the expansion of the commercial use into the area previously used as a studio apartment on the first floor.
Pursuant to New York case law, it is not necessary for a property owner/applicant to apply for a new use variance in order to expand a business which exists under a current use variance. For example, in Angel Plants, Inc. v. Schoenfeld¸154 A.D.2d 459, 546 N.Y.S.2d 112 (2nd Dept., 1989) the Second Department decided a case where a wholesale nursery facility operating in a residential area wanted to expand its business premises. In holding that the enterprise did not need to apply for a use variance in order to expand, the Court held that while a use variance is necessary to expand a business conducted as a prior nonconforming use, the subject business was not a "nonconforming use" within the meaning of the Town of Huntington ordinance. Similarly, in the instant case, the subject property – 181 South Broadway – was previously granted a use variance therefore, the use which the applicant wants to expand into the small back apartment did not originate as a "non-conforming use"
therefore, a use variance application is not necessary.
In Red House Farm Inc. v. Zoning Board of Appeals of Town of East Greenbush, 234 A.D.2d 770, 650 N.Y.S.2d 891 (3rd Dept, 1996) the Third Department dealt with a matter where a software company wanted to expand its workforce from 20 to 40 employees and the local zoning board determined that a new use variance was not necessary. An Article 78 proceeding was brought alleging in part that the ZBA's determination was arbitrary and capricious. In upholding the local ZBA, the Appellate Division held that the "...mere increase in volume of business activity will not of itself require use variance" Id. at 772. Obviously, the doubling of the workforce would have increased the overall business activity at the site however, the Third Department noted that the proper way to deal with this
situation was for the applicant to obtain a modification of a condition of the original use variance as opposed to seeking an entirely new use variance.
In conclusion, the proper course for the instant property owner/applicant is to seek a modification of the existing use variance and in so doing he should not be required to satisfy the four-part test of hardship which was necessary to obtain the use variance in the first place. In reviewing the application for a modification, the Zoning Board of Appeals may grant the application if it finds a rational basis for doing so and the decision is supported by substantial evidence. See, Jackson v. Zoning Board of Appeals of City of Long Branch, 270 A.D.2d 267 (2nd Dept., 2000).
Please feel free to contact me should you have any questions regarding this matter.”
No one appeared on behalf of the applicant. The Board noted they would not be deciding this matter tonight because they are seeking a recommendation from the Planning Board.
Ms. Brown questioned what assurances the Board would have that the businesses being requested at this time won’t change and how this would affect the second floor being turned into businesses. Counsel Shumejda stated the Board cannot control who operates the businesses. There was a lot of discussion in the 1980s and 1990s about the DeCecchises running the business but the variance actually runs with the land. In regard to businesses operating on the second floor, that would be an extension of this variance but the Board could rule whether it is reasonable and there is a rational basis for it. In the current application there is actually a decrease in the number of people who will be working in these offices.
Ms. Brown stated that decrease is based on the people who will be going in at this time. She questioned whether the variance could say every time there is a change in tenancy it has to return to the Board. Counsel Shumejda stated the Board could do that but it is difficult to monitor when it is going from office to office.
Counsel Shumejda stated the issue before the Board on this application is whether legalizing the extension of the office use is reasonable for this property and then there is the issue of the parking requirements for this use.
Mr. Maloney questioned whether anyone wished to address the Board on this matter.
Mr. Joseph DeBellis, Independence Street, stated his concern is the parking. He stated he did not believe it will be a problem, and he would not like to see the adjacent lot, which is currently open green space, blacktopped.
Ms. Brown stated it seems the residents at this property are the ones without the parking.
Counsel Shumejda stated the applicant has said there isn’t a parking problem because the residential tenants are away during the day. They have the room for the parking but if it is not needed, no one wants the green space turned into paving.
Ms. Merrill-Verma questioned whether there would be a difference in the tax revenues. Counsel Shumejda stated if the Board approves this variance, the assessor should be advised the entire first floor must be taxed as a business.
The Board unanimously agreed to continue this hearing at their June 9th meeting.
ADJOURNMENT
Ms. Brown moved, seconded by Mr. Jolly, and unanimously carried, that the meeting be adjourned – 8:30 p.m.
Kathleen D’Eufemia
Secretary
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