Zoning Board of Appeals
Village of Tarrytown
Regular Meeting
May 11, 2009 8:00 p.m.
PRESENT: Chairwoman Lawrence; Members Maloney, Jolly, Brown, Verma Merrill; Counsel Shumejda; Village Engineer McGarvey; Secretaries D’Eufemia, Bellantoni
APPROVAL OF THE MINTUES
March 6, 2009 (Special Meeting) and part of the December 8, 2008 (Crescent Associates – 153-155 White Plains Road only).
Mr. Jolly moved, seconded by Mr. Maloney, and unanimously carried, that the minutes of March 6, 2009 (Special Meeting) and part of the December 8, 2008 (Crescent Associates – 153-155 White Plains Road only) be approved as submitted. Motion carried.
PUBLIC HEARING – Halford – 28 Beech Lane
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, April 13, 2009 in the Municipal Building, One Depot Plaza, Tarrytown, New York to hear and consider an application by
Mary Ann Halford
28 Beech Lane
Tarrytown, NY 10591
for a variance from the Zoning Code of the Village of Tarrytown for property located at the above address regarding a use variance for a two-family residence in a single-family district.
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 4, Block 129, Lots 7A & 8 and is located in an R-15 (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.
By Order of the Zoning Board of Appeals
The Public Hearing was rescheduled for May 11, 2009 at 8:00 p.m. to allow the applicant to send out certified mailing, which was not done for the April meeting.”
The certified mailing receipts were submitted and the sign was posted
Board members visited the property.
Richard Blancato, attorney for the applicant, gave a brief description of the property and the reason the applicant is seeking an area variance as follows:
The house was constructed in 1918 as a carriage house with three levels: lowest was used for horse carriages, next level for Model-T cars, and the top was housing for the caretaker. Over the years it was modified a number of times. When Dr. Alexander bought the house in 1971, it was converted from a two-family to a single-family residence. In 1983 he converted the downstairs into an office for his practice, which remained as a permitted use until 2002 when it was sold to the applicant and her husband. At that time they were told by their broker that the basement could be used as an apartment.
Mr. Blancato further stated that two appraisals were done showing the value of the house: one with the rental apartment as $932,000, and one showing the value without the rental apartment as $830,000; the applicant purchased the house for $757,000 and put $150,000 into the house for a total of $930,000. He then explained that since Ms. Halford’s divorce, she was paying the taxes ($28,000) and carrying the expenses on her own and could no longer afford to stay in the house without the income from the basement apartment. She would be forced to sell at a loss of $100,000, which would create a severe hardship on her. Since the apartment is separate from the main house, only accessible from the outside, the applicant felt it would have no use except for a doctor or another professional living in the house. The use of
the basement apartment would not be detrimental or have an adverse effect on the neighborhood since it would generate less traffic than a professional office.
Sean McCarthy, the applicant’s architect, submitted plans for the proposed apartment. It measures 660 square feet consisting of one bedroom, a living room, dining area, bathroom and a storage area.
Ms. Lawrence asked what it was presently CO’d for and what it was CO’d for when the house was purchased by the applicant. Mr. Blancato said it is a single-family residence with a legal office in the basement. Chairman Lawrence clarified that it was purchased as a single-family with a doctor’s office, not as a two-family; and Mr. Blancato concurred.
Ms. Lawrence then asked the actual sizes of the two living levels of the house and how many rooms it has. Ms. Halford responded that the house is 3,000 square feet, 1,500 square feet on each level; however, it is 3,900 square feet if you include the basement level. She said the top level (upstairs caretaker’s floor) has 5 bedrooms; and the entry level (carriage house) has a center hall, large kitchen, dining room and living room.
Mr. Maloney asked if they have any history on it being a two-family residence.
Mr. Blancato said he had a copy of the Building Department card showing it checked off as a two-family residence. Either Dr. Alexander or a prior owner changed it to a single-family. Ms. Halford gave a short history stating that prior owners renovated it from a carriage house, to a multi-family, to a single-family in 1955-56 through 1971.
Ms. Brown asked if it was always zoned R15. Council Shumejda said, to his knowledge, it has been zone R15 since the end of 1920.
Mr. Jolly asked if they had any documentation showing it as a two-family. Mr. Blancato presented a copy of the Building Department card.
Ms. Lawrence asked if they had any feedback from the neighbors. Ms. Halford said she had spoken briefly to some of the neighbors and heard nothing from others. She thought they were OK with it.
Mr. Blancato noted that Sean McCarthy, the applicant’s architect, was present if the board had any questions. Ms. Lawrence asked about the garage space to which Ms. Halford stated that it was a small garage and that there was parking for three cars safely in the driveway.
Ms. Halford explained that she spoke with one of the prior residents of the house who told her there used to be two kitchens in the house; one on the entry level and one on the level above.
Ms. Lawrence stated that once a house converts back to a single-family, after some time it remains as a legal single-family house.
Mr. McGarvey stated that after six months as a single-family, it legally becomes a single family; and he further clarified that in that house once the doctor ceased using the office, the legal use of the office ceased as well. Ms. Halford said that was not how the house was sold to her. She said it was sold as a single family with a professional office. Mr. Blancato clarified and Mr. McGarvey concurred that under the Zoning Chapter, you can have a professional office in your house only if you live there.
Ms. Brown asked how much construction is needed to make it into an appropriate dwelling area and was there a kitchen. Ms. Halford responded that not much because when she thought it was legal; it was once used by a friend. At that time she put in a stove and refrigerator. The bathroom already existed. To enhance it for rental, it would take several thousand dollars.
Ms. Lawrence pointed out that the property card stated that it could not be rented due to the zoning.
Mr. Blancato stated that several brokers were told by the Building Department that it could be rented.
Ann Bolt, a realtor, stated that she went to the Building Department and had the property card pulled. She had a conversation with an employee who told her it was absolutely a legal rental. It wasn’t until it was listed as a legal apartment in 2008 that the Building Department stated that it was not a legal rental.
Ms. Halford explained that she cannot afford to stay in the house without renting the apartment; in which case, it will have to be sold and she must be able to explain what could and could not be done with the basement.
Ms. Brown inquired if she was looking for a permanent variance or would a short-term variance be helpful.
Ms. Halford said no, that a short-term variance is not what she is seeking. She needs clarity as to what could and could not be done. It is a home that has changed many times throughout its life.
Ms. Lawrence asked what were the criteria to legally allow the conversion of a single-family residence into a two-family residence.
Council Shumejda explained that it was a use variance, which is dramatically different than an area variance. The Village has adopted the state law and the following four criteria must be met:
1. The applicant must show that under the zoning she is deprived of all economic use or benefit from the property and that economic deprivation must be established by competent financial evidence; in other words, the applicant must show that as a one-family home she obtains no reasonable economic benefit under the zoning code. We have no evidence here to show economic hardship. Economic evidence must be in dollars and cents, and we do not have any income/expense information. If we were to look at the two appraisals for the house, the higher one for $930,000, states a full finished basement; in the addendum under additional features, it states that the house has a legal apartment at the walk-out basement level, which at the time of inspection was vacant, and is mentioned for information
only with no credit given.
2. It must be a unique property. The existence of a doctor’s office does not make it unique to the neighborhood since the property next door has a similar set up.
3. Whether or not it alters the essential character of the neighborhood.
4. Is it self-created hardship?
Council Shumejda stated that all four criteria must be considered under law.
Mr. Blancato once again addressed the total cost of the house and the two appraisals. Without the basement apartment the house can only be sold at the lower appraised price; and considering the total amount including the money put into the house, selling it at that price would cause a financial hardship. Ms. Lawrence, as an appraiser herself, explained that houses are never appraised at a dollar for dollar value. It doesn’t matter what you paid for it and what you put into it.
Ms. Brown pointed out that the higher appraisal did not include the basement apartment. It seems that they are just two different amounts based on two different appraisers.
Ms. Halford explained further how it is a financial hardship as a result of losing her job, and the necessity of giving her ex-husband a required buy-out. She also explained that the house was not set up so that the basement could be used for family use since there is no entrance into the basement from the inside of the house.
Ms. Brown felt it would set precedence in the neighborhood because when the other neighbors want to sell their homes, they too would get a higher price if they were allowed basement apartments/offices.
Ms. Merrill Verma asked what information could be provided for evidence of economic hardship. Council Shumejda explained the nine factors that the Court of Appeals, the highest court in the State of New York, has set based on the Otto Case, which is the basis of all use variance in the State of New York. Five of the nine items apply in this case. They are:
1. Amount paid for the entire parcel, which we have.
2. Present value; we have two appraisals showing the present value.
3. Expenses and carrying charges in connection with the maintenance of the entire property, any part thereof.
4. Taxes, which we have been told.
5. Amount of mortgages.
The other items, 6 through 9, deal with the income. In order to properly assess the hardship, we need to look at the expenses compared to the income of the household; we do not have that.
Mr. Blancato said the income information is the applicant’s personal information but they could provide the income information for the rental of the apartment. He felt that her personal finances are not relevant.
Council Shumedja said it is not just an income approach. The applicant is coming before the Board as a hardship. In this case, since it is not a business, the Board has to rely on the income information. If the income in sufficient to carry this house, where is the hardship? If the income is utilized in a way other than for the maintenance of this house, where is the hardship? The income from a rental is not relevant here. This is the applicant’s hardship.
Mr. Blancato said this is a one-family house not a rental house. One-family houses use comparable sales to appraise the house, income is not considered.
Mr. McGarvey felt that the whole picture has to be looked at, not just her divorce and a settlement between Ms. Halford and her ex-husband.
Council Shumejda felt that the amount of the mortgage versus your financial obligations is not the central issue because it is not relevant to the property.
Ms. Lawrence pointed out that the financial hardship was not the only issue. The other criteria are not being met.
Ms. Halford said she has been given mixed messages from the Building Department. Mr. McGarvey asked her to elaborate on said messages. Ms. Halford said she was told by two credible agents, one being Jane Weiss of Prudential, that they went into the building department, at the old Village Hall, in October or November of 2008, and were told that it was a rentable space.
Ms. Halford clarified, at Ms. Lawrence’s request, that she had the apartment listed by Prudential for rent from November 2008 to February 2009 until her broker looked further into it and told her it was not a legal apartment.
Mr. Jolly asked what the Village’s position was about the existing doctor’s office. Mr. McGarvey explained that you are allowed to have a professional office in your home if you live in the house; but it cannot be used to see clients without a special permit, which Dr. Alexander had. He also explained that once Dr. Alexander moved or gave up his practice, the use of the space as a professional office no longer existed. If the house was sold, the new owner would have to obtain a special permit to use the space as a professional office. Mr. Jolly asked if Ms. Halford could use the space for her own personal office. Mr. McGarvey said she could use it as an office for her personal use.
Ms. Halford said the space was not usable because of its separate entrance, a kitchen is not allowed, and a professional office is not allowed.
Mr. McGarvey asked Sean McCarthy if the basement area can be accessed from the floor above without going through the boiler room. Mr. McCarthy said the most convenient way to access the basement would probably be from the living room above. Any other way would destroy the entry level above.
Mr. Blancato asked for the opportunity to submit the financial proof by having another appraisal done to show the Village the income that could be derived from the house if it were rented without the rental of the basement.
Ms. Lawrence stated that this case is about changing a single-family residence into a two-family residence, which would set precedence; and she would like to see the other three criteria addressed. She stated that she would like the requested information presented to the Board at the next meeting. She requested another site visit.
ADJOURNMENT
Mr. Maloney moved, seconded by Ms. Lawrence, and unanimously carried, that the meeting be adjourned – 9:30 p.m.
Dale Bellantoni
Secretary
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