Zoning Board of Appeals
Village of Tarrytown
Regular Meeting
July 13, 2009 8:00 p.m.
PRESENT: Members Maloney, Jolly; Merrill Verma, Brown, Counsel Shumejda; Village Engineer McGarvey (late); Secretary, Bellantoni
ABSENT: Chairwoman Lawrence
The June 2009 meeting of the ZBA was cancelled for lack of a quorum.
(Mr. Maloney chaired the meeting in Chairwoman Lawrence’s absence.)
APPROVAL OF THE MINUTES - May 11, 2009
Ms. Merrill Verma moved, seconded by Ms. Brown, and unanimously carried, that the minutes of May 11, 2009 be approved as submitted. Motion carried.
CONTINUTAION OF A PUBLIC HEARING – 28 Beech Lane, Mary Ann Halford
Richard Blancato, the applicant’s attorney, stated that although the June 8, 2009 meeting was not held because of a lack of a quorum, they presented a financial investment appraisal from Robert Balog which indicates that the subject property without the rental apartment would have a return of 1%, and with the rental apartment, having a rental income of $1,200, would have a return of 3%.
Upon questions from Mr. Jolly and Ms. Brown as to a return on the property, Mr. Blancato further clarified that if the entire property were rented without the apartment at $4,500/month it would generate a 1% return. Renting it with the apartment would generate a 3% return. If an investor bought this property as an income producing property (which is how the return on the property is determined), and rented the house, including all expenses except the mortgage, he would see a return on the investment. If it were rented without the apartment he would get a 1% return on the investment; with the apartment he would get a 3% return on the investment.
He explained the uniqueness of the property based on the fact that it was once a carriage house which was later made into an office, which is not accessible from the main house.
Ms. Brown stated that at the last meeting they discussed what the house was worth on the market, not as an investment. She asked what they wanted to do with the property, keep it or sell it.
Mr. Blancato explained that they gave the investment information to show the worth of the property; that they are trying to keep the property by getting the extra income from the small apartment.
Ms. Brown stated that it is not entirely true that there is no access from the main house down to the basement area. She was in the house during the site visit and there is a staircase down from the kitchen to that area. Mr. Blancato explained that the Building Inspector confirmed at the last meeting that the staircase would have to be closed off. The Building Inspector was not present at that time to confirm or deny the building code.
Mr. Shumejda was not sure of the building code but thought it was not a critical issue. He stated that the critical issue here is the economic return aspect. The applicant stated that the sale of similar properties is not relevant. Mr. Shumejda explained that small investment properties use an income and sales approach while large commercial properties only use an income and expense approach. In this case, a small property, a single family home, uses a sales approach; it was not done here, but it is relevant.
Mr. Shumedja then addressed the 1% analysis. The analysis is based upon the current real estate taxes on this property which is $27,900. The appraisal indicates that this property is over assessed. When you do an evaluation of property to determine what the equitable level of taxation and if this property is truly valued at the current appraisal of $839,000, it should have a tax burden 33% lower than it does. That one change will decrease the tax burden of $27,900 to approximately $16,000. Thus, the 1% return comes up to 3%.
Secondly, Mr. Shumedja discussed the expenses shown in the appraisal. The electricity and heat are tenant expenses. There is a third expense for general repairs. As a general rule of thumb, 2% of the net operating income is used to determine this expense; $3,000 annually is much in excess of that. Therefore, take into consideration the equitable level of taxes; take out fuel and electricity and lower the expenses for general repairs and you are at a 3.5% or higher return. You also have to compare what is the return here. If you go from 1% to over 3.5%, you have to put it into the context of what we are looking at. For example, if you purchase a 10-year Treasury Note, which gets 3.38%, is that not a reasonable return? Put it in the context of what is reasonable now and what is not reasonable. You must also consider the value increase over a period of time. This house was purchased in 2002 for $775,000 with $100,000 put into it (not verified). According to the first
appraisal of $932,000, there was an 8% gain. Is this not a reasonable return?
Mr. Shumedja asked the board to think about the following factors which they have to consider:
• Since there is no hard and fast rule as to what is a reasonable return, is there a reasonable return?
• Another issue, uniqueness. Dr. Mistry has an office in a similar property down the street. Is this property unique?
• The essential character of the neighborhood is a single-family residential area. Will a two-family residence alter the character of the neighborhood?
Mr. Blancato responded to Mr. Shumejda’s comments regarding the expenses stating that the expenses are actual, not estimated, and that the landlord pays them, not the tenant. He agreed that the taxes are high. He felt that real estate investments are riskier than other investments and they also involve the care and maintenance of the investment.
Ms. Brown noted that at the time of purchase by the client there was a risk of selling it for less. Mr. Blancato said she did not buy it as an investment. It was bought to live in; but if she were to sell it in today’s market, it would probably be sold for less than she bought it. Ms. Halford interrupted Mr. Blancato saying that there is an offer on it now higher than the value of the house. She did not wish to jeopardize this hearing with incorrect numbers. The reason for this hearing was to refinance her house so that she could pay off her husband, and without the income from the basement apartment the bank would not refinance it. She now has been forced to sell the house. She stated that she did not sense a positive disposition from this board on her variance.
Mr. Shumejda asked Mr. Blancato if they wished to continue with this variance. Mr. Blancato said they wanted to go forward to a decision.
Mr. Jolly asked if they filed a tax grievance with the Village. Mr. Blancato said they filed a grievance with the Town in June; and if she still owns the house in March, they will file with the Village. Mr. Blancato agreed with Mr. Shumedja that the taxes are much too high, but felt that even if the taxes are reduced, it will help but not remedy the situation.
Mr. Maloney asked if anyone would like to say anything.
Barbara Mahoney of 34 Suncliff Drive said she has lived there for 34 years. She is against granting the variance. She stated that her neighborhood is her home, not an investment, not a place where people come to rent apartments; and that is how they want to keep it. She asked if Ms. Halford’s house was listed as a single-family home or a two-family home. Ms. Halford assured her that it was listed as a single-family house, the only way she could have it listed. Mrs. Mahoney stated that many families in the neighborhood have temporarily rearranged their homes for their children returning from college, etc.; and they understood that. However, they do not want a two-family situation in that neighborhood. They fear if one person is allowed to do it, all will want to do it; and it will affect their
property values.
Michael Zuckerman, of Wyckoff, New Jersey is a part-owner of 27 Suncliff Drive. He is against granting the variance. He is concerned that if this variance is granted, it might possibly set a precedence allowing multi-family residences in the neighborhood, which will negatively affect the quality of the neighborhood.
Eileen Mahoney, who grew up on Suncliff Drive, at # 34, said she visits her mother often and she does not want to see what was once her home changed to a two-family neighborhood. She stated that the streets are narrow, with many cars already. Granting this variance will change the flavor and uniqueness of the neighborhood.
Judy McGreal of Glen Allen, Virginia, is a part-owner of 27 Suncliff Drive. She supports everything that has been said by the other homeowners. She feels for Ms. Halford, but she does not support changing the whole character of the neighborhood based on these unfortunate circumstances.
Mr. Blancato responded to the neighbors stating that the real estate appraiser said that this variance will have no adverse affect on the neighborhood. A doctor’s office would have more of an adverse affect, which was allowed. The basement area is of no use other than for storage. He feels they have submitted sufficient proof that the board should grant the variance and he feels that this will not have any impact on the neighborhood.
Mr. Shumejda made one last statement that the impact on the neighborhood is the board’s determination based the neighbors’ comments vs. the appraiser’s and that the appraiser stated that even with the proper taxes the return is less than 5%. We are not dealing with 1%, but with something much higher than that – 4 or 5 times higher.
Michael McGarvey, Village Engineer arrived at the meeting
Mr. Blancato proceeded to ask Mr. McGarvey if he recalled the issue of closing off the existing staircase into the basement at the Halford residence.
Mr. McGarvey did not recall it specifically, but he did recall something about closing off the staircase.
Ms. Merrill Verma made a statement that she understands everything that was said and she respectfully disagrees that it will not change the neighborhood. There are lots of big houses there with empty rooms and people looking for ways to make money; and should an exception be made, other exceptions will be asked for. There are many houses in that area on the market, and she respectfully disagrees.
Mr. Maloney read the following letter from Michael Blau, the Environmental Review Officer:
I have reviewed this application to convert a single-family house to a two-family house in a single-family zone. This variance would have to meet all the criteria for a use variance:
1. Under the applicable zoning regulations, the applicant is deprived of all reasonable economic use or benefit from the property in question, which deprivation has been established by competent financial evidence
2. The hardship relating to the property is unique and does not apply to a substantial portion of the neighborhood
3. The requested use variance will not alter the essential character of the neighborhood
4. The hardship has not been self-created.
The ZBA can only approve this variance if ALL of the above-noted criteria are met. If that can be done, the Board may make a determination that the approval of the variance would pose no significant adverse environmental impact.
Mr. Blancato said that an area variance was exempt from SEQR. Mr. Shumejda disagreed stating that this is a Use Variance, which is not exempt.
Since there was no Environmental Assessment Form filed with the application, Ms. Merrill Verma moved, seconded by Mr. Maloney, and unanimously carried that the hearing be adjourned until the next meeting allowing time for the applicant to submit the EAF and time for the board to review it.
NEW PUBLIC HEARINGS
MARK GREENBERG – 82 BARNES ROAD
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, July 13, 2009 in the Municipal Building, One Depot Plaza, Tarrytown, New York to hear and consider an application by
Mark Greenberg
82 Barnes Road
Tarrytown, NY 10591
for a variance from the Zoning Code of the Village of Tarrytown for property located at the above address regarding the construction of a new 12 ft. addition in the front of the house requiring the following variances:
1) Increase in the degree of non-conformity: (§305-18A(1)).
a. Existing lot size is 7,567 sq. ft. where 10,000 sq. ft. is required.
b. Front yard setback is required to be 25 ft., 24.8 ft exists, and 17.38 ft. is proposed.
c. One side yard is required to be 12 ft., 7 ft exists.
d. Two side yards are required to be 26 ft., 16.6 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 19A, Block 112-A, Lot 25 and is located in an R-10 (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 certified mailing receipts were submitted and the sign was posted.
Board members visited the property.
Mr. Greenberg, the homeowner, introduced himself and his architect, Luigi Demasi. He explained how they proposed to expand their house out the front instead of going up or down. His side of the street does not have basements, so going down was not an option. He felt that going up would be too much of an obstruction for their neighbor because of the way their house is situated. He presented and read a letter (attached) from those neighbors, George and Sara Peterkin of 76 Barnes Road, supporting the proposed addition. Mr. Greenberg explained that he and his wife and his teenage daughter live in the house, which has three bedrooms, only one bath and limited closet space. They are proposing a 12’ addition in order to make a master suite which would include a second bathroom and more closet space.
Since there is presently a 5’ overhang which extends into the front yard setback, they actually would only be adding an additional 7’ into this setback. He presented a picture of a house across the street which is almost identical to what he hopes to do.
Ms. Brown asked if the house was for sale. Mr. Greenberg said it was on the market and they had an offer, which they rejected. They like the neighborhood and decided they wanted to stay, so they took the house off the market.
Mr. Maloney asked what the setback is now. Mr. Demasi answered that it presently is 17.38’ and they were asking for a 7.62’ variance; they are required to have 25’. The other issues are the under sized lot and the 7’ and 9.6’ side yard setback, which will not be encroached upon.
Mr. McGarvey explained that they would be increasing an existing non-conformity by not having the required side yard setback.
Mr. Maloney asked if they could go out the back, and Mr. McGarvey asked why they were not going out the back instead of in the front yard. Mr. Greenberg stated that by going out the front it makes the house look more contemporary and because of the flow of the house, they would not be able to add a bathroom and closet. Mr. Demasi said they would have to take out the existing bathroom and put in two new bathrooms vs. one additional bathroom and a nicer closet.
Ms. Brown asked if they would need a variance if they went up, and Mr. McGarvey answered that they would because they would still be increasing the existing non-conformity.
Mr. McGarvey felt they could go out the back if they went down the hallway and made a right. The existing bathroom could be made into the master bathroom by moving the tub around, and the new bathroom could be his daughter’s. Mr. Greenberg explained that when he enclosed the rear porch, he had to have a foundation put in and he felt that he could not put a foundation back there because of the rock ledge which is behind his house. Mr. McGarvey asked how he knew how deep the rock ledge went. To which Mr. Greenberg explained that it was evident at the time they dug for the rear porch foundation. Mr. McGarvey then asked if they knew if the rock ledge was in the front yard. Mr. Greenberg said he was pretty sure that it was not because of the large maple tree on the front yard, which would not grow if
there were that much rock. He also said he assumed that the thickest part of the rock ledge was in the rear of his house and it continues to slope deeper as it comes to the front because the houses across the street have basement, which would mean that they are not affected by it.
Mr. Maloney asked if there were any other comments.
Ms. Merrill Verma asked if any of the neighbors had a problem with the addition. Mr. Greenberg said he did not talk to all of them; but since none were there, he assumed they were fine with it.
Ms. Brown asked if they anticipated that the construction would endanger the existing tree and how far away from the new addition would the tree be. Mr. Greenberg said the tree would be approximately 10 to 12 feet from the new addition and that he talked to a tree expert who said as long as they trim the tree because of the root ball, there would be no problem.
Mr. Maloney read the following letter from Michael Blau, Environmental Review Officer:
I have reviewed this application for a new 12 ft. addition in front of the house and determined that the proposal appears to pose no significant adverse environmental impact.
Mr. Demasi explained that the additional water from the new roof area will be directed into new drywells.
Mr. McGarvey asked how they would perc for the new drywell if there is too much rock. Mr. Greenberg explained that the rock is in the rear of the house and he does not anticipate much rock in the front. Mr. McGarvey said they would have to store the water from this addition on their own property; and asked if there is not enough soil there, where are they going to store it. Mr. Demasi said they would test the soil; and if they could not perc, they would not do the addition. Mr. McGarvey recommended that the perc test be a condition of the approval.
Mr. Jolly moved, seconded by Ms. Brown, and unanimously carried that the hearing be closed and that the Board approves the requested variances for 82 Barnes Road having arrived at the findings required by the ordinance:
1. Under the applicable zoning regulations, the applicant is deprived of all reasonable economic use or benefit from the property in question, which deprivation has been established by competent financial evidence.
2. The hardship relating to the property is unique and does not apply to a substantial portion of the neighborhood.
3. The requested use variance will not alter the essential character of the neighborhood.
4. The hardship has not been self-created.
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.
4. A perc test performed prior to the issuance of a building permit.
Motion carried.
JEFF AND LISA BERGMAN – 24 DIXON STREET
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, July 13, 2009 in the Municipal Building, One Depot Plaza, Tarrytown, New York to hear and consider an application by
Jeff and Lisa Bergman
24 Dixon Street
Tarrytown, NY 10591
for a variance from the Zoning Code of the Village of Tarrytown for property located at the above address regarding the installation of an air conditioner condenser unit within the side yard setback requiring the following variance:
1. Obstructions in yards: (§305-47B)
a. Existing lot size is 3,937 sq. ft. where 10,000 sq. ft. is required.
b. One side yard: Required: 12 ft. / Existing: 8 in. / Proposed: 0 ft./in.
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 7, Block 23, Lot 8 and is located in an M2 (Multifamily Residence – Up to 2 Families) 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 certified mailing receipts were submitted and the sign was posted.
Board members visited the property.
Jeff Bergman, the homeowner, introduced himself and explained that they would like to have central air conditioning installed in their home at 24 Dixon Street, which will involve the installation a condenser unit, which measures 37” x 33” x 30”, in the rear left of their property adjacent to 20 Dixon Street, which is owned by Mr. and Mrs. McGee. There will be no aesthetic change to the outside or the inside of the house (the duct work exists). The variance is for the setback. Because their lot is only 32’ wide, they cannot meet the required 10’ side setback. A fence taller than the unit exists which will block noise and any unsightliness of the small unit.
Mr. Maloney asked if it was the only place they could put the unit. Mr. Bergman said they had air conditioning people come out to the house to assess the situation, and it is the only place for the unit. Mr. McGarvey stated that he also went to the site and agrees that it is the only place for the unit.
Mr. Jolly asked if there would be any noise. Mr. McGarvey explained that there are some units now with very low noise. He suggested that perhaps the board might want to set a decibel level which is lower than normal for this application, because the neighbor is so close; and if it is noisy, there will be quality of life issues.
Ms. Brown said that they talked about that a little at the site visit and the Bergman’s said they chose a more silent unit. She asked if they had the model number, which was provided by Mr. Bergman. Mr. McGarvey asked if they had the dba, which Mr. Bergman said he did not have, but the installer said it was similar in noise to a window unit.
Mr. McGee of 20 Dixon Street said that his bedroom window is on the second floor right above the unit.
Mr. McGarvey asked what they used now for air conditioning. Mr. Bergman said they had a window unit in the front of the house and one in the dining room which is near where the condenser unit will be. Mr. McGarvey asked if they had exhaust fans and Mr. Bergman said they had an attic fan in the window of the attic which pulls the air from the attic. He also said they would be removing the two window units which would decrease the noise.
Mr. Jolly asked what brand it was and Mr. Bergman said it was a Trane, 3 ton unit, 13 seer. Mr. McGarvey explained that the seer is the energy efficiency rating.
Mr. Maloney asked if anyone would like to comment.
Donald McGee of 20 Dixon Street stated that he did not have a big problem; the only thing he was worried about was the noise. The early morning ambient sound, the birds chirping, has a decibel level of 42 to 45; with the attic fan running at noon time the decibel level is 57-60. That is bothersome, but hopefully the air conditioner will be much quieter.
Mr. Jolly asked if the window unit they now have is near their bedroom window and could they hear it. He also noted that the condenser unit would be a little lower. Mr. McGee said they could not hear the window unit but the condenser unit would be more centrally located under their bedroom window. He also stated that they had a back porch which they use extensively. Mr. McGee said he was OK with it as long as it was not noisy, but he would like to be reassured that it will be within a good level.
Ms. Brown asked if the present window unit is in the same place where the condenser unit will be located. Mr. Bergman stated that it will be approximately 5’ from the current window unit and 10 to 15 feet from the back porch.
Mr. McGee asked that if they could use those decibel levels as a guide. He would like to see the decibel levels from the manufacturer of the unit.
Ms. Brown asked Mr. McGarvey if there is anything in the code stating the decibel levels allowed for machinery. Mr. McGarvey said that it cannot exceed 60 to 65. Ms. Brown felt that the maximum allowable level is too much to expect; however, no noise is not a reasonable expectation either.
Mr. McGee said the fan goes on when the attic temperature reaches a certain degree and it runs all day, which can be troublesome. Mr. Bergman pointed out that with the central air, the fan will be used less which will lower the noise level. He stated that the unit is a 3 ton, 4TT, and the model number as 4TTR3036A1000A.
Mr. McGee said that he would like to reserve his right so that there isn’t a problem in the future. Mr. Shumejda asked him what decibel level he would like it to be and Mr. McGee said 40 to 42. Mr. Bergman asked him to clarify that he would like the decibel level at 40 to 42, which is what it was early in the morning without any machinery. Mr. McGee said if possible that would be great. Ms. Brown asked Mr. McGee if he knew the decibel level of his air conditioner and if it was on when he tested the level with the Bergman’s fan on. Mr. McGee stated that his air conditioner was not on during the testing.
Mr. Shumejda suggested that the Bergman’s obtain the decibel level of their unit and present it to Mr. McGee and the board. There was some clarification made as to what decibel levels they were looking for; a level provided by the manufacturer or the level obtained from the neighbor’s yard once the unit is installed and running. It was agreed that the Bergman’s would get the dba level which is spec’d on the unit.
Mr. Maloney read the following letter from Michael Blau, Environmental Review Officer:
I have reviewed this application for an air conditioner condenser unit within the side yard setback and determined that the proposal appears to pose no significant adverse environmental impact.
Mr. Jolly moved, seconded by Ms. Brown and unanimously carried that the hearing be adjourned to the next meeting to allow the Bergman’s to obtain the decibel level of their proposed condenser unit.
ADJOURNMENT
Ms. Brown moved, seconded by Mr. Jolly, and unanimously carried, that the meeting be adjourned – 9:50 p.m.
Dale Bellantoni
Secretary
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