Town of Bolton SEQR = State Environmental Quality Review
ZONING BOARD OF APPEALS PB = (Town of Bolton) Planning Board
MINUTES WCPB = Warren County Planning Board
Monday, July 19, 2004 APA = Adirondack Park Agency
6:30 p.m. LGPC = Lake George Park Commission
- DEC = Dept of Environmental Conservation
Present: Chairman Greg Smith, Tony DePace, Kam Hoopes, Meredith McComb,
Michael Murray, Bill Pfau, Fred Ross, Zoning Administrator Pam Kenyon,
Town Counsel Michael Muller
Chairman Smith opened the meeting at 6:41 pm, noting that there was no ZBA meeting in June. He asked the Board if there were any corrections to the May 2004 minutes. There being none, a motion was made by M. McComb to approve the May 17, 2004 ZBA minutes as written. Seconded by M. Murray. 6 in favor. 1 (G. Smith) abstained, as he did not attend the May meeting. Motion carried.
1) BYERS, STEPHEN. Represented by Atty Mark Schachner. In accordance with Section 200-72 of the zoning ordinance, seeks to appeal the Zoning Administrator’s determination that the Bilco door addition located at 12 Braley Point, Parcel ID#171.08, Block 1, Lot 17, constitutes an extension of an existing non-conforming structure as it is attached to the existing single-family dwelling, thus requiring an area variance for a deficient shoreline setback. The definition of structure reads as follows: STRUCTURE -- Any object constructed, installed or placed on the land to facilitate land use and development or subdivision of land, such as buildings, sheds, single-family dwellings, mobile homes, signs, tanks, fences and poles, and any fixtures, additions and alterations thereto. Construction must be more than six inches above grade and in excess of 100 square feet to be considered a structure. [Amended 2-20-1997; 10-3-2000]
Tony DePace recused himself, as he is a neighbor to the applicant.
Atty Schachner gave a presentation, referring to the notice of violation that was issued by Zoning Administrator Pam Kenyon, wherein it is noted that P. Kenyon originally advised Mr. Byers’ excavator (Ruben Ellsworth) that a permit was not required to install a Bilco door. He noted therein that it was P. Kenyon’s position that once constructed, the Bilco door addition constituted a structure since it exceeded 100 sq ft, and extended “way beyond the Bilco door”. Atty Schachner further pointed out that the notice indicated that the “structure” was built without a permit. He went on to say that upon receiving the notice of violation, Mr. Byers hired Tom Jarrett of Jarrett-Martin Engineers to measure the Bilco door addition, which Mr. Jarrett determined was less than 100 sq ft. Therefore, it is Mr. Byers’ position that because the addition is less than 100 sq ft, no violation exists. Furthermore, Atty Schachner believes this appeal was never publicly noticed, and therefore the public should not be heard on the matter. (The file indicates that the matter was publicly noticed on June 3, 2004, followed by a notice to adjacent property owners that the matter was adjourned until the July 19, 2004 meeting.)
Counsel, speaking on behalf of P. Kenyon, referred to photographs that clearly showed the addition exceeding the footprint of the Bilco door. He cited other excerpts of the notice of violation, wherein it states that Chapter 200.78(A)1 of the zoning ordinance (building permits) indicates that the addition required a building permit. The notice of violation also indicated that because the addition did not meet setbacks, Mr. Byers’ contractor (Eugene Baker) applied for a variance. Counsel noted that regardless of the alleged miscommunications between the property owners/representatives and the zoning administrator, the ZBA must interpret whether a violation exists.
Atty Schachner stated that the notice of violation clearly does not indicate the nature of the violation as being the extension of a non-conforming structure, but rather construction of a structure in excess of 100 sq ft. He asked if any addition (constructed without approval), even 1 inch, onto a pre-existing, non-conforming structure constituted a violation, why the zoning administrator was concerned about the dimensions. He felt that it (requiring a variance for such an addition) was not consistent with the past practice of the zoning administrator or ZBA.
B. Pfau asked P. Kenyon if it was possible she was in error in advising Mr. Ellsworth that a permit was not required for the Bilco door. She indicated that it has been her practice not to require permits for Bilco doors, understanding the need to incorporate a foundation underneath the door. She feels in Mr. Byers’ case, the foundation for the Bilco door far exceeded the necessary footprint.
After much discussion, the Board took the position that a violation existed, and voted in favor of upholding the zoning administrator’s determination.
Now, upon motion duly made by M. McComb and seconded by K. Hoopes, it is resolved that the ZBA does hereby uphold the determination of the Zoning Administrator. All in favor. Motion carried.
2) V04-19 SMITH, WAYNE. For a proposed 4-lot subdivision (SD04-20), seeks area variance for deficient density. 180 acres are required: 35.98 acres exists. Section 123.00, Block 2, Lot 45, Zone LC45. Property Location: 146 Alderbrook Road. It is noted that lot 3 will be revised to meet the 400’ width required. Subject to APA review.
Mr. Smith read a letter he submitted as part of his application, indicating that it is his intention to have commercial boat storage on Lot 1, and single-family dwellings on the remaining 3 lots (there is an existing dwelling on proposed Lot 2). He indicated that he called the APA earlier in the day and discussed his application. He stated that the APA indicated they would be satisfied with the application as long as setbacks could be maintained, the ZBA granted approval, and there were no wetlands affected. The Board felt this was not consistent with their experience with the APA, citing a recent letter from the APA dated 07/19/04 wherein the Agency overturned the ZBA’s decision on granting a density variance (COLLINS V04-06, 05/17/04). The Board and Counsel explained to Mr. Smith several times that in order to meet the density requirements to allow 4 lots in this zone, he would need 180 acres, and that the minimum lot size of 5 acres was allowed as long as the overall density was maintained on the remaining lands. Mr. Smith feels that this is not clearly stated in the regulations and the zoning schedule for the LC45 zone.
K. Hoopes felt that the applicant had not demonstrated any special hardship supporting his request, nor did the application meet the criteria for granting an area variance. Mr. Smith indicated that the land is flat and conducive to his proposal, noting that although he could not meet the density requirements, he could meet the minimum road frontage requirements. P. Kenyon explained that because this is a pre-existing not conforming lot, Mr. Smith would be allowed to have one single-family dwelling on it, as is. M. McComb asked Mr. Smith if the zoning regulations were in effect when he bought the land, to which he indicated they were.
It was noted that letters of opposition were received on the application (Meehan & Navitsky). There were no public comments voiced.
RESOLUTION
The Zoning Board of Appeals received an application from Wayne Smith for an area variance as described above.
And, due notice of the public hearing of the ZBA at which time the application was to be considered having been given:
and, after reviewing the application and supporting documents of the same, and there being no public comment regarding the application;
this Board makes the following findings of fact:
The application of the applicant is as described in Item #2 of the agenda.
The Board makes the following conclusions of law:
1) While the benefit cannot be achieved by other means feasible to the applicant, there would be an undesirable change in the neighborhood character or to nearby properties by basically ignoring the land conservation zone that the property is in;
2) The request is very substantial, taking one substandard pre-existing lot and asking to make 4 lots out of it;
3) The adverse physical and environmental effects would come not only from this development, but from the increase in development of an area that was set aside to manage overall density in the Town;
4) The alleged difficulty is completely self-created, and to grant this variance would go against the Comprehensive Plan, and there’s nothing specific about this lot that makes it different from any other LC45 lot.
Now, upon motion duly made by M. McComb and seconded by M. Murray, it is resolved that the ZBA does hereby deny the variance request. All in favor. Motion carried.
3) V04-20 NICOLETTI, MAUREEN. To allow a set of stairs and landing to remain, seeks area variance for a deficient front yard setback: 30’ is required. 0’ is proposed for the stairs. A variance is also sought to alter a non-conforming structure. Section 171.15, Block 2, Lot 46, Zone GB5000. Property Location: 1st & 2nd story of 4983 Lake Shore Drive and known as the Sagamore Pub/Pizza. Subject to WCPB review.
Ms Nicoletti and her husband Steve Travers explained that when they did repairs to the building, they tried not to do anything that required upgrades to meet current building codes, such as handicap accessibility. The contractors they consulted informed them that as long as they didn’t change anything (structurally?) that they would not have to get a permit.
From the public, Ross French stated his objection to the mess that was created on the property ever since the stairs accessing the pizza shop were built. He noted that every morning there is garbage including cigarette butts, broken glass, paper plates and pizza all over the sidewalk. He noted that the area has become a spot for young kids to loiter, making it necessary for pedestrians to walk into the street to get by. He did note that the owners have been trying to clean up, but they do not begin until 8 am. He stated that if the owners do not make a better effort to clean up the area, he would not support their variance request.
Ms Nicoletti responded by stating that problems have risen due to the NYS smoking laws, which require that people smoke outside, therefore they throw their cigarettes outside. They have tried to stop people from bringing alcoholic beverages out of the building, but cannot always control it.
Richard Kimak, adjacent business owner to the north, spoke with concern that the construction got the point it did without meeting all the building code and zoning requirements, a problem he feels has become common in Town. He suggested that the Town hire a subcontractor to oversee projects prior to their coming into violation.
P. Kenyon noted that she visited the Nicoletti site upon neighbors voicing concerns, and immediately informed the applicants of the need for a variance and possible compliance WC Building Codes Dept requirements (she contacted the Dept regarding her concerns). She noted that WC Building Codes Dept came to the site more than once and determined that the use of the building was compliant. B. Pfau noted that the ZBA should only focus on zoning issues related to the variance, although the Board could place conditions on any approvals to perhaps address site conditions.
Ms Nicoletti noted that they received visits from the Fire and Building inspectors and the Health inspector, all of whom indicated the property would be in compliance after the owners did a few minor things, which they did. When asked if there was a receptacle for cigarettes in front of the building, Ms Nicoletti explained that they have two 5-lb buckets of sand there, adding that they have been trying to direct smokers to the back of the building.
Carol Alcan, adjacent resident and business owner, stated that she has no objection to the owners improving on their business, but she does object to the kids loitering ever since the stairs to the pizza shop were constructed. She also objects to the destruction that has occurred on her property this year, which is the worst she has ever seen in all the years she’s lived there.
The WCPB recommended no County impact with the condition that the alterations meet the building code requirements.
RESOLUTION
The Zoning Board of Appeals received an application from Maureen Nicoletti for an area variance as described above.
And, due notice of the public hearing of the ZBA at which time the application was to be considered having been given and the application having been referred to the Warren County Planning Board;
and, whereas the Warren County Planning Board determined that there was no County impact with the condition that the alterations meet the building code requirements;
and, after reviewing the application and supporting documents of the same, and public comment regarding the application having been heard;
this Board makes the following findings of fact:
The application of the Applicant is as described in Item #3 of the agenda.
The Board makes the following conclusions of law:
1) Whether or not the benefit can be achieved by other means feasible to the applicant: an area variance is required for this. The building is already non-compliant, so any maintenance, any change to the building at all is going to require a variance. The things (changes) that were done are improvements;
2) Undesirable change in the neighborhood character to nearby properties: that is not the case, a fresh coat of paint and a new roof is an improvement on the look of the building;
3) Whether the request is substantial: there’s nothing that has been established that says that this is a substantial change from the previous building;
4) Whether it will have adverse physical or environmental effects: that has not been raised as an issue, so it will not;
5) Whether the alleged difficulty was self-created: no, these (changes) are to be viewed as improvements and not arbitrary changes.
Now, upon motion duly made by K. Hoopes and seconded by M. McComb, it is resolved that the ZBA does hereby grant approval for said project as presented with the following conditions: 1) the applicant tries to relieve some of the congestion (pedestrian traffic/loitering) associated with the new front entrance to the pizza shop; and 2) the applicant continues to try to clean up the untidy situation that has existed there, as discussed. All in favor. Motion carried.
4) V04-21 LAVIT JR., HENRY. For a proposed 3-lot subdivision (SD04-23), seeks area variance for deficient density. 30 acres is required in the RR10 zone. 14.8 acres exist. 135 acres is required in the LC45 zone. 72.7 acres exists. Section 139.00, Block 1, Lots 70 & 71, Zones RR10 & LC45. Property Location: 394 & 416 County Route 11. Subject to WCPB and APA review.
Mr. Lavit explained that they propose 3 lots (two consisting of approx 25 acres, and one of approx 35 acres). The prospective buyer of one of the lots has indicated that he would adhere to the 150’ setback from the centerline of the road, and would leave the hedgerow intact along the front of the property. Mr. Lavit noted that the County’s only concern had to do with runoff from the mountain affecting the highway, to which Mr. Lavit responded they do not intend on changing the runoff pattern.
After a brief discussion regarding what portions of the proposed lots fell within what APA zones (resource and rural), the Applicant chose to consult the APA prior to moving forward on the application since it involved a density variance.
Motion by M. Murray to table the application at the applicant’s request in order for him to confer with the APA. Seconded by K. Hoopes. All in favor. Motion carried.
5) V04-22 QUIGAN, SCOTT. For the construction of a proposed 6’x 20’ deck, seeks area variance for a deficient front yard setback. 75’ is required from the edge of the right-of-way: 30’ is proposed. Section 199.04, Block 1, Lot 5, Zone RL3. Property Location: 407 Coolidge Hill Road. Subject to WCPB review.
Mr. Quigan explained that the proposal is for a small deck on his rental property. The reason for the request is to address a moisture problem in the basement. Mr. Quigan indicated that last fall he dug up the foundation and installed a perimeter drain. There used to be a built-in flower planter in the location of the proposed deck, which will be slightly larger. The deck will serve as an exit area for the door on the front of the structure. K. Hoopes noted that the area would be screened by the hedges along the front of the property.
The WCPB determined no County impact.
RESOLUTION
The Zoning Board of Appeals received an application from Scott Quigan for an area variance as described above.
And, due notice of the public hearing of the ZBA at which time the application was to be considered having been given and the application having been referred to the Warren County Planning Board;
and, whereas the Warren County Planning Board determined that there was no County impact;
and, after reviewing the application and supporting documents of the same, and there being no public comment regarding the application;
this Board makes the following findings of fact:
The application of the applicant is as described in Item #5 of the agenda.
The Board makes the following conclusions of law:
1) The benefit sought cannot be achieved by any other method feasible (for the applicant to pursue) except an area variance, as the house itself does not meet setbacks;
2) There will not be an undesirable change produced in the character of the neighborhood, nor any detriment to nearby properties with the deck;
3) The area variance is not substantial. The deck will become about 4’ closer to the setback than the house already is now. It is not a large deck;
4) There will be no adverse effect or impact on the physical or environmental conditions in the neighborhood;
5) The alleged difficulty was not self-created, as the house does not meet setbacks;
The benefit outweighs any detriment to the neighborhood.
Now, upon motion duly made by B. Pfau and seconded by K. Hoopes, it is resolved that the ZBA does hereby grant approval for said project as presented. All in favor. Motion carried.
6) V04-23 McPARTLON, J. PETER. For the construction of a proposed garage, seeks area variance for a deficient shoreline setback. 75’ is required from the mean high water mark: 50’ is proposed. Section 200.14, Block 1, Lot 46, Zone RM1.3. Property Location: 4224 Lake Shore Drive and being lot #5 of the Blessed Sacrament Subdivision. Subject to WCPB and APA review.
Mr. McPartlon explained that they wish to build a 2-car garage. A similar variance for a garage was granted for this property in 1992, but it was never built. They intend to keep the existing outbuilding in the back of the house.
Stormwater measures would be incorporated into the project. K. Hoopes noted that the plans indicated there would be a 45’ setback from the property line, although the agenda listed 50’. Mr. McPartlon noted that it would be 50’ from the stream. P. Kenyon indicated that the contractor was not certain as to exactly where the wetland was, so he showed 45’ to give himself a buffer.
B. Pfau wondered why the garage was not proposed closer to the house. Mr. McPartlon explained that they had considered this, but found there were a lot of service lines running through this area (septic tank and a septic line), and he wants to leave enough room for machinery to get through there.
The only correspondence was from WCPB, who determined no County impact. There was no one from the public to speak on the application.
RESOLUTION
The Zoning Board of Appeals received an application from J. Peter McPartlon for an area variance as described above.
And, due notice of the public hearing of the ZBA at which time the application was to be considered having been given and the application having been referred to the Warren County Planning Board;
and, whereas the Warren County Planning Board determined that there was no County impact;
and, after reviewing the application and supporting documents of the same, and there being no public comment regarding the application;
this Board makes the following findings of fact:
The application of the applicant is as described in Item #6 of the agenda.
The Board makes the following conclusions of law:
1) The benefit sought by the applicant cannot be achieved by other means feasible for the applicant to pursue other than an area variance. The applicant seems to have made a good effort to find the best location for this structure;
2) There will not be an undesirable change in the neighborhood character to nearby properties;
3) The request is somewhat substantial in terms of the numbers in the distance from the stream, but that does not override the other factors. There will presumably be stormwater measures taken to control that in this building. It’s a small garage. It’s not an expansive, tall plan, or a broad plan;
4) The alleged difficulty was self-created in terms of wanting a garage, but in terms of the topographical problems and the existing septic and leach field and service lines, those are not self-created.
The benefit to the applicant outweighs any detriment to the health, safety and welfare of the neighborhood.
Now, upon motion duly made by M. McComb and seconded by F. Ross, it is resolved that the ZBA does hereby grant approval for said project as presented. All in favor. Motion carried.
7) V04-24 BUTLER, JAMES & ROSAMUND. Represented by Chris Gabriels. For the construction of a proposed single-family dwelling, seek area variance for deficient side yard setback. 20’ is required: 3’ 8 ½” is proposed on south side. Section 171.12, Block 1, Lot 4, Zone RL3. Property Location: Crown Island. Subject to WCPB review. This is an amendment to V02-71 approved by the ZBA on January 13, 2003.
This item was represented by John Wells, who explained that Mr. Gabriels could not be here this evening. He noted that this is an amendment to a variance that the ZBA granted in 2003 (V02-71 BUTLER, 01/13/03). After that approval, the applicant got feedback from the neighbors on either side (Meigher to the north and Summerhayes to the south). While Mr. Meigher indicated he would have liked to see the 20’ setback to his property line adhered to, Mr. Summerhayes indicated he did not have a problem with where the house sat in relationship to his property. In light of this, the applicant would now like to relocate the exact same proposed structure 3’8” from Mr. Summerhayes’ property, meeting the 20’ setback to Mr. Meigher’s property. (Mr. Wells referred to letters from the neighbors supporting this.) M. McComb noted that the applicant indicated to her that the new location would better accommodate the septic system.
Other than correspondence from Meigher and Summerhayes, the WCPB determined there was no County impact. There were no comments from the public.
RESOLUTION
The Zoning Board of Appeals received an application from James & Rosamund Butler for an area variance as described above.
And, due notice of the public hearing of the ZBA at which time the application was to be considered having been given and the application having been referred to the Warren County Planning Board;
and, whereas the Warren County Planning Board determined that there was no County impact;
and, after reviewing the application and supporting documents of the same, and there being no public comment regarding the application;
this Board makes the following findings of fact:
The application of the applicant is as described in Item #7 of the agenda.
The Board makes the following conclusions of law:
1) The benefit sought cannot be achieved by means other than an area variance. It is only a 50’ wide piece of land, which would leave only 10’ to build a house on;
2) There will not be an undesirable change produced in the character of the neighborhood. This is a residence on a building lot;
3) The requested variance is not substantial;
4) The request will not have an adverse effect or impact on the environmental conditions in the neighborhood, as stormwater measures will be taken;
5) The alleged difficulty was not self-created.
The benefit outweighs any detriment to the neighborhood or community.
Now, upon motion duly made by B. Pfau and seconded by K. Hoopes, it is resolved that the ZBA does hereby grant approval for said project as presented. All in favor. Motion carried.
8) V04-25 MALOVANY, GERALD. Represented by Chris Gabriels. For the construction of a proposed addition, seeks area variance for deficient setbacks. 1)Shoreline: 100’ is required: 42’ is proposed; and 2) Rear. 50’ is required: 40’ is proposed. Section 172.01, Block 1, Lot 1, Zone RR10. Property Location: Oahu Island, most southwestern point. Subject to WCPB and APA review.
As in Item #7, this application was represented by John Wells in place of Chris Gabriels. Mr. Wells explained that the Malovanys are retired, and they now wish to spend 4-6 months a year at this location, which is a small 2-bedroom camp. There are no additional bedrooms proposed, so the septic system won’t be impacted.
G. Smith indicated he was familiar with the property, noting that the existing structure is small. He felt that the area where they propose to expand is well screened and only visible from the north. Only a minimal amount of trees would be removed.
K. Hoopes wished to point out that some of the rooms might be used as bedrooms under future ownership should the property be sold. M. McComb noticed while at the site that the storage shed seems to be used as a sleeping area. Mr. Malovany noted that there are beds being stored in this shed, but they are not set up for sleeping there. M. McComb referred to the NYS DOH Design Handbook, which cautions that expansions involving attics, dens, basements, etc., that could be converted to sleeping quarters in the future should be considered in calculating design flow. In light of this, she wondered if the existing septic system was adequate. Mr. Malovany was not certain what type of tank was in the ground, but noted that the system has been working properly to date.
It was determined that the parcel was slightly less than an acre. G. Smith felt that the proposal was consistent with the surroundings.
The WCPB determined no County impact. There was no one from the public to speak on the application.
RESOLUTION
The Zoning Board of Appeals received an application from Gerald Malovany for an area variance as described above.
And, due notice of the public hearing of the ZBA at which time the application was to be considered having been given and the application having been referred to the Warren County Planning Board;
and, whereas the Warren County Planning Board determined that there was no County impact;
and, after reviewing the application and supporting documents of the same, and there being no public comment regarding the application;
this Board makes the following findings of fact:
The application of the applicant is as described in Item #8 of the agenda.
The Board makes the following conclusions of law:
1) Whether the benefit can be achieved by other means feasible to the applicant: an area variance is the only way they’re going to accomplish the added space needed. The space is moving away from the critical shoreline to the backside of the house;
2) Undesirable change in the neighborhood character to nearby properties: this should remain largely invisible to everybody except their immediate neighbor, and even that will be pretty much in the shadow of the original house;
3) Whether the request is substantial: it’s a very modest addition to a very modest house;
4) Whether the request will have adverse physical or environmental effects: there’s been nothing established that shows that there’s anything that’s going to impact the environment;
5) Whether the alleged difficulty was self-created: the need for a little more space is being addressed, and that is not a self-created problem.
Now, upon motion duly made by K Hoopes and seconded by T. DePace, it is resolved that the ZBA does hereby grant approval for said project as presented. All in favor. Motion carried.
9) WILLIE BEA McDONALD. Seeks informal discussion as it relates to multi-family dwellings located at Section 171.19, Block 1, Lot 74, Zone RM1.3. Property Location: south end of Brook Street toward the sewer plant. The parcel contains 1.37 acres.
Ms McDonald noted that the property is at the end of Brook Street toward the Sewer Plant, and meets the density requirements as it currently exists. She compared the subject lot to surrounding properties, many of which are smaller and have multi-family dwellings on them. She noted that there is a prospective purchaser for the property who wishes to put a 2-family home on it, which would require a variance. The structure would be serviced by Town water and sewer. Ms McDonald feels the proposal is in keeping with the neighborhood and the Town’s Comprehensive Plan, which indicates a need for additional housing. She indicated the prospective buyer was seeking the Board’s feedback on the initial plan prior to incurring architectural and surveying expenses.
P. Kenyon noted that the APA recently overturned a decision by the ZBA when approving a density variance in nearby Mohican Heights Subdivision (COLLINS V04-06, 05/17/04), from which she believes this lot was originally a part. Ms McDonald did not believe this was part of that subdivision. At this time, P. Kenyon went to the office, researched the matter and found that the parcel was indeed part of the Mohican Heights Subdivision.
Ms McDonald asked the Board if they would look somewhat favorably on the proposal if the APA approved it and the soils proved to be good. K. Hoopes noted that the proposal seemed to be in line with the Comprehensive Plan.
10) HERB SCOTT. Seeks informal discussion as it relates to the expansion of the existing commercial structure located at Section 171.19, Block 1, Lot 84, Zone GB5000. Property Location: 4941 Lake Shore Drive.
Mr. Scott believes the building was built in the early 1940’s and does not meet current building codes. He noted that the lot is 65’ x 65’, and the current building is 22’ x 46’. He would like to alter the building to be 20’ x 48’ with a second story, centering it on the lot. He proposes to have 2 retail shops downstairs and office space upstairs. He feels there is a need to provide year round services in Town.
G. Smith indicated the proposal seemed to support the Comprehensive Plan. B. Pfau indicated he had no concerns with the proposal, as long as the tree cover was maintained on the property.
Meeting adjourned at 9:30 pm.
Respectfully submitted by,
Melanie Quigan
Recording Secretary
08/02/04