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, November 17, 2003 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, Town Counsel Michael Muller
Chairman Smith opened the meeting at 6:35 pm by asking for corrections to the October 2003 minutes. K. Hoopes noted that on page 12, it was stated in the motion that the footprint would not expand under the proposal. He believes that the footprint was increasing by the set of exterior stairs, and he would like the minutes to reflect this. P. Kenyon stated she would research the matter and the minutes would be adjusted accordingly. Motion made by F. Ross to accept the October 20, 2003 minutes as corrected. Seconded by M. McComb. 6 in favor. 1 (T. DePace) abstained, as he did not attend the October 2003 ZBA meeting.
1) V03-29 ISLE HARBOR HOMEOWNERS. Represented by Dolores Kunker and Atty Wayne Judge. To remove existing crib and replace it with a 4.6’x 30’ wharf, seek area variance for deficient side yard setbacks. 20’ is required: approximately 12’ is proposed on both sides. Section 186.19, Block 1, Lot 17, Zone RM1.3. Property Location: Opera Lane. On August 18, 2003 the ZBA denied the variance due to the proposed style. The Zoning Admin. requested that the Board review the new style proposed. This matter was tabled at the October meeting pending additional information.
Mrs. Kunker stated that at the last meeting, there were questions as to what height the dock would be when retracted onto the shore, and she noted that the drawing done by the Doc Doctors indicated this as 2’ off the ground. G. Smith felt the Board would require the supporting dock posts to be removed as suggested in the application. K. Hoopes noted that these posts would not exceed the height of the chain link fence on the property.
There was no new correspondence received on the application. M. McComb wondered if there would be any cutting necessary along the shoreline. Mrs. Kunker indicated one tree and a shrub would have to be removed. Mrs. Kunker indicated the structure consisted of a metal deck and a cedar skirt on the sides, with wooden decking. The metal would not be visible. Mrs. Kunker noted that there is only 20’ of usable space because ten feet of the dock will sit over a rock ledge. She did not anticipate more than 2 boats being docked there, and there will be no rental activity proposed involving anyone outside of the association. The dock fees have been paid even though there has been no dock there for several years. Mrs. Kunker noted that the original dock was 40’ long and 6’ to 8’ wide.
Walter Vanvranken, adjacent landowner to the north, spoke saying that while he wasn’t opposed to a dock being put there, he is opposed to an articulating dock. He does not understand why a crib dock is not being proposed, especially since the cribs are already in place. He noted that Mrs. Kunker would not be able to view the dock from her residence, nor would she be able to hear it. He feels that a metal dock would not fit in with the surrounding properties, which have wooden docks in excess of 40’, and metal docks reflect sunlight. He also feels the docks are noisy.
B. Pfau asked P. Kenyon for verification as to why a variance is needed. P. Kenyon noted that the ZBA determined months ago that a variance was not needed because the cribs were pre-existing, with the stipulation that the replacement dock was a crib dock. She noted that because the proposal has changed to a metal articulating dock and is non-conforming, she requested the applicant apply for a variance. M. McComb felt that this was a substantially non-compliant pre-existing condition.
Robert Tobin, adjacent landowner to the north, also expressed concern over the dock, noting that the proposal is for the same dock that was proposed in August, which was denied by the Board. There have only been some minor cosmetic changes. He felt there would be a problem with noise. He pointed out that this property and neighboring lots are for sale. He felt that the dock would likely be raised like an articulating dock in the future and he wondered about enforcement if this happened. He also does not care for the appearance of this type of dock and felt that noise would also be a problem. A crib dock would function much better in this location on the Lake, which tends to be very rough. He added that the property is only about 29’ wide, and trees and rocks would have to be removed in order to accommodate a dock that retracts onto the shore. He felt the applicant should have to contend with ice damage, as have all the neighbors.
In response to Mr. Tobin’s last comment, K. Hoopes felt that the Board should not put Mrs. Kunker in harm’s way by requiring her to have a crib dock, which would be more susceptible to ice damage than the proposed dock. He felt that she should be entitled to the benefit of a dock without harming the neighbors’ quality of life, which would be the case if the dock were out of the water completely in the winter. Given that the setback from the property line will only be 12’, Mr. Tobin feels the benefit could be achieved by other means: a crib dock. M. McComb would agree with K. Hoopes if the proposal did not involve a non-conforming structure.
G. Smith asked if there was anyone in attendance who was familiar with metal docks. Rolf Ronning, public in attendance, spoke saying that he did a development in Gull Bay, involving seven shorefront lots. Upon selling the first couple of lots, the buyers put in metal docks because the water was very deep there. It became difficult for him to sell the remaining lots because the metal docks made a tremendous amount of noise. M. McComb stated that she also has had experience with this type of dock and agreed that they are very noisy. She felt that it was substantial variance from the ordinance to have a dock on a 30’ wide parcel, and she felt that it was not unreasonable for the neighbors and the Board to request a crib dock instead.
Sue Millington, representing some of the neighbors who are opposing the metal dock, noted that the area is very heavily wooded. She did not agree with K. Hoopes asserting that the problem had to do with putting Mrs. Kunker in harm’s way, but it instead has to do with meeting the very specific criteria of granting a variance, which she felt this application did not. The problem is self-created, and could be solved by putting in the same dock that was there. G. Smith stated that he agreed with the views of those who oppose the articulating dock and he didn’t feel the application could meet the criteria of granting variances.
Mrs. Kunker stated that the reason she would like a metal dock is because she was only given permission by LGPC to build a dock that is smaller (shorter and narrower) than the size of the existing crib. She noted that the ice damaged the previous dock, and would surely destroy a 30’ dock that is only 4.5’ wide. It was determined that while Mrs. Kunker would be entitled to replace the dock to the same size as previously existed, she must first get LGPC approval, which she was unable to do.
Mrs. Kunker point out that the Doc Doctors built the metal dock based on approvals Mrs. Kunker obtained months ago, and it has cost her over $9,000 so far. She stated that the dock has been paid for since June. K. Hoopes noted that the Board could not take into account the fact that the dock was already paid for.
Ms Millington presented a copy of Mrs. Kunker’s application to the LGPC in June, indicating that the request was to replace the existing wharf with a 4.5’ wide 30’ long articulating dock. Mrs. Kunker stated that this was not her original application, but was a subsequent request made when she found out (verbally) from the LGPC that they would not allow her to replace the dock to the original dimensions (40’ x 6-8’). She noted that the last time she was before this Board the only question seemed to be the height of the structure when it was retracted onto shore, which she pointed out would only be 2’. Counsel advised that if Mrs. Kunker had proposed a metal dock exactly to the dimensions of the previous dock, no variance would be required.
Ms Millington also presented documentation from Isle Harbor Homeowners attorney relevant to their request for a dock repair permit in 1989, which clearly indicated that the original dock was 30’. K. Hoopes felt that the letter was irrelevant because physically there is a crib there 40’ from shore.
RESOLUTION
The Zoning Board of Appeals received an application from Isle Harbor Homeowners 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 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 #1 of the agenda.
The Board makes the following conclusions of law:
1) There would be an undesirable change in the neighborhood, and to nearby properties because of the potential for glinting off a metal dock and also because of the increased noise level of a metal dock;
2) The benefit can be achieved by other means feasible to the Applicant, which would be to replace the pre-existing crib dock with another crib dock;
3) Whether the request is substantial: this is a small piece of property where access to this dock is going to require the neighbors’ forbearance and traversing their waterfront property rights;
4) The request will have an adverse physical effect on the neighborhood because of the noise and the different material (of which the dock will be constructed);
5) The alleged difficulty was self-created. It’s a choice to make a different structure than what was previously there.
Now, upon motion duly made by M. McComb and seconded by M. Murray, it is resolved that the ZBA does hereby deny said project as presented. 5 in favor. 2 (K. Hoopes & F. Ross) opposed. Motion carried.
2) V03-40 RAJESKI, ROBERT & BETTY ANN. Represented by Atty Stefanie DiLallo Bitter. Seek use variance to allow an accessory structure (dock/boathouse) to remain without a principal structure (single-family dwelling). Section 213.13, Block 1, Lot 44, Zone RM1.3. Property Location: 52 Hayden Point Loop. Subject to SEQR. Subject to WCPB review. This matter tabled at the October meeting.
Atty Bitter explained that upon hearing the Board’s concerns and comments last month, she discussed the matter with the Rajeskis who have indicated that they would like to withdraw the use variance and construct a single-family dwelling. They have decided not to construct the same structure for which they previously obtained building permits. Atty Bitter presented drawings for the new structure (16’ x 26’), which they would agree to begin construction on by May 2004.
M. McComb asked Atty Bitter if she had a plot plan showing the proposed location of the structure on the site. She indicated she did not, adding that the structure would meet the setback requirements. K. Hoopes asked how soon the applicants would have something substantial to show the Board that demonstrates a sincere effort to bring the property into compliance. Atty Bitter stated that in response to the pending notice of violation, they have drawn up a written stipulation to be signed by the Town and the applicant that requires construction on the single-family dwelling to be undertaken by May 2004. K. Hoopes noted, and P. Kenyon confirmed, that the property would remain in violation until such time construction is undertaken on the structure. Counsel advised that procedurally, the stipulation had to be reviewed by the Town Board prior to it being signed by the Town. He stated he would make sure it was placed on the Town Board’s December 2, 2003 agenda.
3) V03-44 URCH, JAMES & MARY ANN. Represented by Tenée Casaccio. For the construction of a proposed single-family dwelling, seek area variance for a deficient front yard setback. 50’ is required from the edge of the right-of-way: 25’ is proposed. Section 199.12, Block 1, Lot 14, Zone RL3. Property Location: Lake Winds Subdivision off of Coolidge Hill Road onto Coolidge Lane. Subject to WCPB review.
This application was represented by Atty Mark Rehm, who referred to the map and noted where the property drops off behind the buildable area. There is also a large slope on the other side of the road. He referred to photographs included in the application that showed the contour of the land and the area best suited to build without substantial grading or clearing. He reviewed the criteria for granting area variances related to this application and made the following suggestions. The proposal would not have an adverse effect on the neighboring character, as the Lake Winds Subdivision is a wooded area, which the applicants would like to preserve. The proposed house site is very conducive for the applicants. There would not be an adverse effect on public facilities, as the property is on a private road and each landowner owns the property over which the easement runs. There will be a private well and septic system. There doesn’t seem to be a feasible alternative for the applicants to pursue without causing a substantial burden upon the applicants. If the home were relocated further from the right-of-way, the house would go over the cliff.
Mr. Urch stated that they are not setting a precedent by requesting the variance, as most of the lots in Lake Winds Subdivision have required variances. They wish to maintain as many trees as possible and add landscaping to the site. He feels he has designed a house that is minimal for this small lot. The area had been graded for the purpose of creating a building site. There are two more lots in this section of Lake Winds Subdivision that have yet to be developed.
There was no one from the public to speak on the application. The WCPB determined there would be no County impact. There was also a letter from LG Waterkeeper Chris Navitsky, who addressed the Board with his concerns regarding the soil information. He felt there should be a stipulation regarding any additional clearing, to keep the soils by the ledges as stable as possible. He stated that it appears the roadway was not constructed where shown on the subdivision map. M. Murray stated that the present roadway was constructed very close to where the original Art Brailey wood lot road was. Atty Rehm stated that the road was relocated on a more updated subdivision map and was built in accordance with what was finally approved. M. McComb noted that the plans indicated that the house would be built on the north side in the “tree area”. Mr. Urch pointed out where the house would be built, within a cluster of trees.
RESOLUTION
The Zoning Board of Appeals received an application from James and Mary Ann Urch 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 #3 of the agenda.
The Board makes the following conclusions of law:
1) There will not be an undesirable change produced in the character of the neighborhood, nor any detriment created to nearby properties. There are no objections from the neighbors. It is a residence in a residential area.
2) The benefit sought cannot be achieved by any other method other than an area variance. It is the best place for the placement of the home and will allow the best mountain view. There will be very little tree cutting involved in placing the house there;
3) The requested variance is not substantial. This is on a subdivision road with only two other homeowners using that section of the road;
4) The proposed variance will not have an adverse impact on the physical or environmental conditions in the neighborhood;
5) The alleged difficulty was not self-created, as the subdivision road runs through that area of the lot.
Therefore the benefit (to the Applicant) outweighs any detriment to the health, safety and welfare of the neighborhood.
Now, upon motion duly made by B. Pfau and seconded by T. DePace, it is resolved that the ZBA does hereby grant approval for said project as presented with the condition that the trees on top of the lot (toward the west) remain. All in favor. Motion carried.
4) V03-45 PALAZZO, ELENA. To allow single-family dwelling to remain in its present location, seeks area variance for a deficient front yard setback. 75’ is required from the edge of the right-of-way: 64’ is proposed. Section 171.14, Block 1, Lot 1.1, Zone RL3. Property Location: 434 Potter Hill Road.
At the applicant’s request, this item was tabled until the November ZBA meeting.
5) V03-46 PFAU, ROBERT & SUSAN. For the construction of a proposed single-family dwelling, seek area variance for a deficient shoreline setback. 75’ is required: 25’ minimum is proposed. Section 200.14, Block 1, Lot 40, Zone RM1.3. Property Location: Lot # 12 of Sandy Lane Estates. Subject to WCPB and APA review.
B. Pfau recused himself because the applicant is his brother.
Robert Pfau explained that they are proposing the house in the only usable area of the lot. He stated that proposing the house anywhere else on the lot would require much more tree cutting. The lot narrows toward the north. This is an approved lot within a subdivision that was approved over 20 years ago. Mr. Pfau believe there is over 100’ from the lakeshore to the proposed house, but there is a stream in between the two, thus the need for the shoreline variance. M. McComb expressed concern over drainage on the property, as it appears that water is collecting on the adjacent property and being diverted toward the subject lot. Mr. Pfau stated that while he would not be involved in the actual construction of the house, it is his understanding there would be ample drainage there. They plan on starting construction in the spring. M. McComb felt that the house could be moved back to meet the setbacks.
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There was no one from the public to speak on the application. The County determined no County impact with the stipulation that the appropriate stormwater and erosion control measures are implemented. There was a letter from LG Waterkeeper Chris Navitsky, but he stated that his comments did not have to do with the variance.
RESOLUTION
The Zoning Board of Appeals received an application from Robert & Susan Pfau 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 stipulation that the appropriate stormwater and erosion control measures are implemented;
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 #4 of the agenda.
The Board makes the following conclusions of law:
1) It seems there will not be an undesirable change produced in the character of the neighborhood, nor any detriment created to nearby properties.
2) The benefit cannot be achieved by any other means feasible to the applicant due to the lay of the land, the cover of trees and the shape of the lot. The applicant is proposing the house in the best spot on the lot;
3) The requested variance is not substantial. The setback issue is due to the lay of the land and the shape of the lot;
4) The proposed variance will not have adverse physical or environmental effects on the neighborhood. There is nothing in the plan that indicates the house will be a problem to the physical or environmental surroundings;
5) The alleged difficulty was not self-created. It has more to do with the land and the lot itself.
Now, upon motion duly made by K. Hoopes and seconded by M. Murray, it is resolved that the ZBA does hereby grant approval for said project as presented. All in favor. Motion carried.
6) V03-47 FARBANIEC, PHILIP & CYNTHIA (BLUEBIRD COTTAGES). Represented by Jeff Anthony of the LA Group and Atty Howard Krantz. For a proposed 10-lot subdivision (9 building lots and 1 common area), seek area variance for 1) deficient lot size. 20,000 square feet is required for each lot: 12,000 square feet is proposed for lot 1; 14,200 square feet is proposed for lot 2; 11,665 square feet is proposed for lot 4; 11,300 is proposed for lot 5; 2) deficient front yard setback: 30’ feet is required from the proposed right-of-way; 15’ is proposed from the existing house on lot 9 and 22’ is proposed from the existing house on the Sidney Werner parcel. Section 186.14, Block 1, Lot 59. Zone RCH5000. Property Location: 4632 Lake Shore Drive. Subject to SEQR. Subject to WCPB review.
Referring to a drawing of the existing conditions, Jeff Anthony gave an overview of what is on the site, which is on a parcel that is slightly less than 5 acres. The property includes a driveway with two paved loops, providing access to a series of cottages on the property (shown in brown on the drawing). There is one common recreation building. There is a separate property, which is less than ½ acre and includes a rarely used log home, that is cut out of the subject property near the Lake and is under separate ownership. There are docks along the shore, which provide space for about 10 boats, not including 2 moorings that have been paid for over the years, but not put in. The site is relatively flat up toward Route 9N, and tapers off past the cottages. The property is pretty well wooded with mature pine trees and other vegetation, especially along the southerly property line. The northern boundary is lined with existing cottages, which currently provide a buffer. The site is serviced by public water. Mr. Anthony noted that each of the existing cottages is serviced by individual sewage systems, although he was not sure what exactly the systems were. In their design, they have taken into account the fact that the property abuts a scenic corridor (Route 9N). They propose no changes visually from Route 9N.
Mr. Anthony referred to another drawing, which showed the “as of right” depiction of the subdivision. They have just slightly under (by about 200 sq ft) the required amount of land in order to propose 10 building lots. Under this plan, they would propose only 9 building lots instead of asking for a variance for a tenth lot. The remaining land, much of it along the shore, would become common ownership, providing access through the property down to the lake where there would be docks. A new roadway, following the existing road, would be put in with a cul-de-sac. Under this plan they would “cookie cut” the lots into 20,000 sq ft lots starting at the top of the property going down to the Lake. This plan would not be very creative or visually desirable. There currently is a large flat area around the recreation building. This open space would be lost under this plan, as would several more trees than if they proposed a different plan. Although this plan would call for a community septic system, it would involve sewage easements across most of the lots. Stormwater would have to be accommodated on an individual on-site basis. This is not the plan they prefer to do.
Mr. Anthony presented the plan they would like to propose. This plan would preserve open space, maintain the condition and character of the waterfront, preserve the existing home on the property as well as the view from the scenic corridor (Route 9N), minimize the number of trees to be disturbed, and propose the new house sites in the general location of existing buildings. The plan would also propose a larger common area in the vicinity of the recreation building. This is also where they would propose the community sewage disposal system, eliminating the need to have easements going through several of the properties. The Farbaniecs would retain one of the lots and build their residence there. Of the nine lots under this proposal, four of them (proposed Lots 1, 2, 4, and 5) would require area variances for deficient lot size. The plan would include community water and sewage systems. The plans for the sewage disposal system were submitted to DEC, and a permit is being worked on. They have also submitted a complete stormwater management proposal, which meets current NYS requirements. The waterfront will be common area, as will the area around the recreation building.
A concern was raised by P. Kenyon that there might be a front yard setback problem from the easement/roadway. Mr. Anthony feels that the problem could be corrected by bending the roadway a little bit and shifting the building envelope on a couple of the lots. The proposed building areas shown are building envelopes, not footprints, and will be specified in the deeds.
Atty Krantz stated that the only reason they showed the “as of right” version was to show what could be built without any variances. Proposing this, however, would create a subdivision that was not very attractive. The preferred proposal still ends up with the same number of homes, but under a less intrusive configuration. The footprint of the new homes will end up occupying virtually the same area as the existing cottages do. The preferred plan will maintain more tree cover, providing better screening. Because the cottages along the northerly line would be removed, they plan to plant an evergreen buffer to re-screen. The southerly property line does not need screening, as it consists of many evergreens. Although the proposed homes would be built individually, there will be requirements in the HOA agreement for a certain architectural theme, and certain amounts of landscaping. The maximum building envelope on each lot will be 35’ x 50’, although they are anticipating homes in the range of 1,500 sq ft- footprints. They have designed the community water system based on 4-bedroom homes, although they anticipate only 3-bedroom homes.
M. McComb wondered if building sizes could be limited, or if future homeowners could apply for variances. Counsel explained that while anyone can apply for a variance for relief from the zoning ordinance, having such things written into restrictive covenants makes it much easier to enforce.
Atty Krantz stated that he felt all aspects of the proposal met the criteria for granting an area variance, noting that there will be less of a traffic impact under the proposal than under the existing use of the property. He noted that the WCPB actually recommended approval with a few recommendations, instead of just declaring no County impact. One of the conditions was that there be no further development in the common area other than the existing recreation hall.
K. Hoopes noted that the applicants are asking for variances for density on 4 of the nine lots, which represents about a 44% variance request from what is allowed. He felt this was substantial. He also noted that 2 of those lots (4 & 5) were really straining the regulations in that they are only about 11,000 sq ft, which represents a 40% variance. Proposed Lots 1 & 2 are non-compliant basically due to the lay of the land. He felt it would be a better proposal to eliminate Lot 5 and merge some of the land into Lot 4, which would remove the most non-compliant lots, while allowing a more logical access to the common area (near the Lake). He felt it would be beneficial to have the Planning Board review the project first.
B. Pfau thought he remembered the ZBA deciding in the past to send all variances that involved major subdivisions to the PB first. Counsel stated that was not necessarily the case, as these applications are taken on a case-by-case basis. B. Pfau asked P. Kenyon her opinion on what she felt were the biggest concerns with the deficient lot sizes. She responded that her biggest concerns had to do with septic and stormwater, but noted that the proposal calls for a community septic system. Although she didn’t want to speak for the PB, she believed they would be looking at the stormwater plan as part of their review process of the subdivision application.
B. Pfau asked why the common area was not considered a lot as well. Counsel indicated that he and P. Kenyon have been discussing this. Counsel felt the Board could take into account that the “as of right” depiction (no variance) showed that the applicants could have 9 lots, and the applicants’ preferred proposal (with variances), although under a different configuration, proposes the same number of lots. It was determined that the common area in total was over 40,000 sq ft.
F. Ross was concerned about sewage being pumped 274’ uphill from Lot 1. Mr. Anthony explained that they would be using a lift station, which is a commonly used system along the Lake. He added that deep test holes were dug where the sewage system is proposed, and the area consisted of deep, sandy soils yielding good perc rates. They did not run into ledge. He added that the test hole information was submitted to DEC as part of the SPDES permit, which they anticipate receiving in a week or two. P. Kenyon stated that Town Engineer Tom Nace would also be reviewing the project.
B. Pfau also felt that the PB should review the project prior to the ZBA voting on it. M. McComb agreed, stating she would like their feedback on K. Hoopes’ suggestion to merge proposed Lots 4 & 5 as well. She was pleased with the idea of specifying building envelopes to avoid future variances, and felt the proposal was in harmony with the Town’s Comprehensive Plan in offering mixed levels of housing.
It was determined that the width of Lot 5 was 55’. Mr. Anthony stated that they would shift the proposed roadway a little and move the building envelopes slightly on proposed Lots 2, 3, & 4, so that none of the lots would require relief from setbacks, as discussed.
The WCPB recommended approval with the following conditions: that the septic system be designed for expansion of the proposed dwelling units, the common area is developed as is and will remain as common area, and ownership of the common area is documented, i.e. through a homeowners association. A letter was also received from LG Waterkeeper Chris Navitsky. G. Smith wondered if a letter was received from Sidney Werner (the owner of the log cabin in the center of the subject lot). P. Kenyon stated Mr. Werner did not send a letter, but he did call her with concerns earlier in the day, but it is not P. Kenyon’s practice to speak for someone based on a phone conversation. Regarding the County’s request that the septic be designed for future expansion, Mr. Anthony again stated that the sewage disposal system was designed for 4-bedroom homes when they anticipate only 3-bedroom homes.
Mr. Navitsky spoke in support of the plan, stating that it is in harmony with the Town’s Comprehensive Plan, as it minimizes and concentrates the disturbance areas. B. Pfau felt that the only aspect of the Plan that does not coincide with the Comprehensive Plan is that it reflects what seems to be a recent trend in resort properties converting to second home properties. M. McComb agreed but noted that the sizes of the proposed houses are modest compared to what could be proposed.
B. Pfau felt that down the road, there would be questions raised as to why an 11,000 sq ft lot was created, requiring a variance to build upon it. Atty Krantz felt that the recorded covenants and restrictions would address the variance matters. Counsel noted that nothing precludes property owners from applying for a variance, even though doing so would also require getting relief from the covenants. Atty Krantz stated that while he can’t predict what the future holds, his clients do not have an attitude of wanting to max-out the property.
G. Smith felt much consideration was put into this proposal, and he too is sad to see commercial property become residential. He was pleased that the Farbaniecs would be residents within the subdivision. M. McComb requested proposed deed language for the building envelopes prior to the application coming back to the ZBA. Atty Krantz stated he would provide this. G. Smith agreed with K. Hoopes’ suggestion (involving proposed Lots 4, 5 & 6), to combine one of the lots into two of the neighboring lots to make them more conforming. Mr. Krantz did not feel the owners would like to give up one of the lots, noting that they have chosen not to request a variance for an additional lot.
Motion by B. Pfau to refer the application to the PB for its review and recommendation. Seconded by M. McComb. All in favor. Motion carried.
7) V03-48 SHIPPEY, HAROLD & CAROL. For the construction of a proposed 24’x 36’ addition, seek area variance for a deficient front yard setback. 50’ is required from the edge of the right-of-way: 30’ is proposed. Section 122.04, Block 1, Lot 1, Zone RR10. Property Location: 2239 East Schroon River Road. Subject WCPB review.
Mr. Shippey explained that they wish to replace their back porch with a 3-season great room. The setbacks cannot be met because the zoning regulations went into effect after the structure, which is over 150 years old, was built. He has a photo from 1933 showing the porch on the back of the house. Addressing the criteria of granting an area variance, Mr. Shippey stated that the neighbors would not be affected, as the neighbors to the south are about 1 mile away, and the neighbors to the north are seasonal residents. He feels the proposal would not affect Town services. B. Pfau noted that the addition itself meets setbacks, and the location of it seems to be the most conforming.
The WCPB determined that there would be no County impact. P. Kenyon received a notice from the APA indicating that the agency would not be jurisdictional. There was no one from the public to speak on the application.
RESOLUTION
The Zoning Board of Appeals received an application from Harold and Carol Shippey 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) There will be no undesirable change in the neighborhood character or to nearby properties.
2) The benefit cannot be achieved by other means feasible to the Applicant because he needs to attach his porch to his house, which is pre-existing and does not itself meet setbacks;
3) The request is minimal;
4) The request will have no adverse physical or environmental effects, as determined not just by the ZBA, but by the non-jurisdictional ruling of the APA;
5) The alleged difficulty was not self-created because it is a pre-existing, non-conforming house.
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.
8) V03-49 SZALONTAI, ALEX. For the construction of a proposed workshop to be utilized for boat restoration, seeks area variance for a deficient front yard setback. 100’ is required from the edge of the right-of-way: 22’ 6” is proposed. Section 124.00, Block 1, Lot 56, Zone LC45. Property Location: 332 Padanarum Road.
Mr. Szalontai explained that the proposal is to replace the building that he removed, as it was falling down. He wishes to rebuild it and use it for his boat restoration business. K. Hoopes remembered this building being partially collapsed at the time the Board granted Mr. Szalontai a variance several months ago. The Board had agreed at that time to allow the commercial use of the property to continue. The woodshop that was there did not meet Mr. Szalontai’s needs for boat restoration. P. Kenyon noted that a variance was needed because he completed the removal of the structure, causing it to lose its grandfathering status. She stated that had natural causes completely destroyed the structure, Mr. Szalontai would have had one year to rebuild it in its exact footprint. When asked, Mr. Szalontai indicated the foundation was in good shape. Before tearing the structure down, Mr. Szalontai discussed the matter with P. Kenyon and informed her that eventually he would like to rebuild it.
From the public, adjacent landowner Andrew Pratt spoke in support of the proposal. There was no correspondence on the application.
RESOLUTION
The Zoning Board of Appeals received an application from Alex Szalontai 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 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 #8 of the agenda.
The Board makes the following conclusions of law:
1) There will be no undesirable change to the neighborhood character of the nearby properties. It is a replacement of a building with a more handsome building than what was there;
2) The benefit sought by the Applicant cannot be achieved by other means feasible to the Applicant. The proposal is for the replacement of a building that’s the exact same size and (to be located in the exact) same place;
3) The requested variance is not substantial. It is the same size and dimensions;
4) There will be no adverse effect or impact on the physical or environmental conditions in the neighborhood. It’s replacing something that has been there many, many years. There will be no change in the physical or environmental situation;
5) The alleged difficulty was not self-created, as it appears to have been an act of nature that originally caused the structure to cave in. The Applicant chose to tear the remains of the structure down;
Now, upon motion duly made by K. Hoopes and seconded by M. Murray, it is resolved that the ZBA does hereby grant approval for said project as presented. All in favor. Motion carried.
9) V03-24 BYERS, STEPHEN. 1) To alter existing single-family dwelling, seeks area variance for a deficient shoreline setback. 75’ is required from the mean high water mark: 25’ minimum is proposed. 2) For the construction of a proposed pavilion, seeks area variance for a deficient shoreline setback. 75’ is required: 5’minimum is proposed. 3) For the construction of a proposed pedestrian bridge, seeks area variance for deficient setbacks. Shoreline: 75’ is required: 0’ is proposed. Front: 50’ is required: 6’ is proposed. 4) For the construction of a proposed retaining wall, seek area variance for deficient setbacks. Side: 15’ is required: 6” is proposed; Shoreline: 75’ is required: 0’ is proposed. Section 171.08, Block 1, Lot 17, Zone RCM1.3. Property Location: 12 Braley Point. Subject to APA review. WCPB determined no County impact with the condition the applicant work with the WC Soil & Water Conservation District for the implementation of stormwater and erosion control measures prior, during, and after construction. This application was last heard on July 14, 2003, at which time is was tabled so that Mr. Byers would retain an engineer to determine if water is being diverted from his property onto the Markis’ property, to do an assessment on the existing wall, including the size of it, and to obtain another surveyor to determine where the property line is. To date the information has not been supplied. As a result the ZBA, at their October meeting, requested that the applicant appear back before them.
This item was represented by Atty Mark Schachner, who explained that he was not present at any of the previous meetings related to this application. He stated that they are withdrawing the second and third portions of the request (the pavilion and the pedestrian bridge). Regarding the first portion of the request (to alter the single-family dwelling), the greatest variance being sought involves a proposed extension of the deck, wherein a shoreline setback request of 25’ is being sought when 75’ is required. Atty Schachner stated that they would like to formally amend the application to eliminate the extension of the deck. In addition to the deck, there is another addition proposed on the home, which will require a shoreline variance of approx 65’ (from the northwest corner of the addition), thus substantially decreasing this portion of the overall variance request.
Noting that variances should not be dealt with in approximate distances, Atty Schachner stated that the applicant would like to request the Board’s assistance in encouraging the Markis to allow the applicant’s surveyor access to their property in order to determine exact property lines. The situation is unique in that the Markis’ property comes between the proposed addition and the Lake. To date, the Markis have denied Mr. Byers’ representatives access. Atty Schachner stated that should the Markis grant permission, the new survey would likely not be available until the January 2004 meeting.
At the July meeting, the issue of whether the retaining wall (constructed last spring) was diverting water onto the Markis’ property was discussed. It is the opinion of Mr. Byers’ consulting engineer, Tom Jarrett, that this is not the case. At the July meeting, the applicant was also requested to have an engineer assess the structural integrity of the wall, as it was the opinion of the neighbors and their engineer that the wall was unstable and in danger of collapsing. Atty Schachner presented a report from Tom Jarrett. (The Board suspended its discussions in order to read this report.)
Atty Schachner noted that there were four concerns previously raised on the retaining wall: 1) whether the wall caused water to be diverted onto the neighboring (Marki) property, 2) whether the wall caused ponding or a collection of water on the Marki property, 3) the structural integrity of the wall, and 4) the actual location of the wall in relation to the property line. He summarized Mr. Jarrett’s report as follows. It is Mr. Jarrett’s finding that the retaining wall diverts surface runoff away from the Marki property. Regarding the idea of runoff water ponding, Mr. Jarrett’s firm visited the site during some very heavy rainfalls and found there to be no appreciable surface water ponding. Regarding the structural integrity of the wall, Mr. Jarrett found that there is no indication that the wall would be or is inordinately unstable. In conclusion, Mr. Jarrett found that it does not appear that the Byers’ property has significant groundwater or surface water impacts on the Marki property.
M. McComb was concerned with the closeness of the wall to the Marki’s cabin. She felt that had the wall been built in compliance with setbacks, she would likely not have concerns. B. Pfau also felt that had a variance for the retaining wall been applied for prior to its construction, the Board likely would have requested the wall be more in compliance with setbacks. Atty Schachner believes there were some misunderstandings during the dialogue between the zoning office and the Byers’ contractor, including whether the construction substantiated the need for a variance, i.e. whether it was considered a structure. He noted that Mr. Jarrett’s report indicates that it is possible that some seeping of ground water could occur through the wall. Mr. Schachner stated the Markis’ property is low lying, to which M. McComb responded that until Mr. Byers built up his property (with fill) the two properties were essentially the same ground level. M. McComb questioned the Byers’ sprinkler system being placed on the neighbors’ side of the trees. Mr. Byers stated that it was placed there so that water from the sprinkler was directed away from the neighbors’ house.
Regarding the balance between the benefit to the applicant and the detriment to the neighborhood, Atty Schachner felt the applicant has demonstrated that there is no detriment to the neighbors’ property. Counsel read the definition of retaining wall, which K. Hoopes felt clearly described what was built. P. Kenyon felt that if Mr. Byers had merely placed the large stones there (as was represented to her at the time), she would not have considered it to be a retaining wall.
Regarding the location of the wall, Atty Schachner stated that Mr. Byers has had surveyor David Bolster do some preliminary measurements. Mr. Bolster has indicated that through a significant portion of the wall there are no encroachments, and there are possible encroachments of very minor degrees, sometimes less than an inch, through other parts of the wall. The applicant’s representatives have asked on several occasions to consult with the neighbors’ representatives in an effort to produce a survey upon which both parties agree. Additionally, Atty Schachner noted that the Markis indicated that their surveyor thought the rock wall was moving. Mr. Bolster has visited the property twice and has found no movement of the wall.
Regarding the July minutes wherein the comment was made that there was blasting “everyday”, Atty Schachner stated that according to a letter from the blaster, Stephen Britton, blasting occurred only on one day, January 7, 2003. Atty Schachner requested the application be tabled until the January 2004 meeting to allow the outstanding issues to be addressed, primarily the survey.
M. Murray felt that the construction of the wall was done in an extreme lack of respect for the neighbor. He felt there would not have been an issue with it had it been constructed straight and away from the property line enough to allow the neighbor to maintain his building. M. McComb also noted that at the July meeting it was requested that there be no more work done (on the wall), and yet a line of trees was planted above the wall and a sprinkler system was installed. Atty Schachner responded that the ZBA does not have the authority to make such a request, and he is unaware of any outstanding stop work orders on the site. P. Kenyon did not feel that the planting of the trees/bushes violated anything or had anything to do with the pending variances. She was informed that someone had stated that the Town said it was okay to plant the trees. She wanted the Board to know that she never said this.
Atty Pentkowski, representing the Markis, spoke saying that in the case of the retaining wall, it is an after-the-fact situation, and had the Markis not pressed the issue, it likely would never have been addressed. He feels the issue is not ‘neighbor against neighbor’ but whether the ZBA and the Town requires people to go through the proper variance process. Regarding the criteria for granting an area variance, Atty Pentkowski stated that the wall is clearly a detriment to the neighbor. He presented photos showing the effects of runoff (from the Byers property) on the Markis’ property. There are other means by which Mr. Byers could achieve the benefit of the wall, for which there was no apparent need until Mr. Byers brought in excessive amounts of fill in order to raise his property. Atty Pentkowski presented another photo, which showed the ground level around Mr. Byers’ basement door prior to fill being brought in. Regarding Mr. Byers’ claim that the Markis have not cooperated with him, Atty Pentkowski noted that it is not the Marki’s obligation to spend time or money to see that the Town code is enforced. He noted that in July the applicant represented that the wall did not encroach on the property line, whereas now they are claiming that it may a little bit. The Markis are concerned that the wall will not be addressed prior to winter, when there will be problems with water seeping through the wall and freezing.
Dennis MacElroy of Environmental Design, a consultant to the Markis, spoke addressing Atty Schachner’s comment that the Markis were not being cooperative, with which he disagrees. He recalled from the July meeting that the first order of business was to establish whether the wall was encroaching, which was to be established by the applicant’s surveyor. Until this meeting this evening, the Markis have not heard the matter addressed, thus they have not had Mr. MacElroy consult on the matter. He stated that he was not prepared to respond to Mr. Jarrett’s letter at this time, but he felt that the two could begin to discuss the matter regarding the stability of the wall, the effects of winter conditions, and the setback issues.
Atty Pentkowski referred to correspondence from the WC Soil & Water Conservation District and photos, which he felt clearly showed there to be a runoff accumulation problem. G. Smith felt that the Board had to have additional survey information in order to proceed on the matter, which would require the two parties working together. Atty Pentkowski felt that the matter in front of the Board was whether or not to grant the relief sought from the 15’ side yard setback, regardless of whether the wall is 2’ on the applicant’s property or 2’ on the neighbors’ property. K. Hoopes raised the point that the applicant would not have to move the wall if he were able to modify it so that it is not considered a retaining wall structure. Atty Pentkowski noted that in addition to the wall there is the issue of the amount of fill that was brought in, as 6’ is the maximum allowable and it seems to have been exceeded. P. Kenyon noted that while she knows fill has been brought in, she has not measured the amount. She suggested one of the engineers make this determination. M. McComb said she did not recall the blasting as being a main issue, but instead the amount of fill brought in.
Atty Pentkowski noted that the Markis have been in contact with the zoning department every week to find out if anything new had been submitted on behalf of the applicant. Until this evening, they didn’t even know who the applicant’s surveyor was. As far as remedying the violations that exist (specifically the existing retaining wall), Atty Pentkowski feels that the applicant is in no hurry to take action on the matter because they already have what they want. He feels the Town has an obligation to enforce the ordinance, and this issue(s) has been going on for five months. He requested the public hearing be closed and the matter be dealt with.
G. Smith felt that the Board needed to have concrete information before proceeding. M. McComb asked G. Smith if he was suggesting that should Mr. Byers’ new surveyor (Mr. Bolster) come up with different numbers than the neighbors’ surveyor (Mr. Koch), the two parties should get together to determine where the line is. G. Smith stated that is exactly what he’s suggesting. Atty Pentkowski asked G. Smith what this would change, as far at the determination the Board has to make regarding whether or not to grant the variance for the wall.
M. McComb noted that there was once a drainage pipe on the subject parcel that was directed toward the Markis’ property, and it has been rerouted toward the stream. She did not feel this was a good solution. Mr. Byers stated that the drainage pipe was installed in the house upon construction and goes from the south end of the house down toward the stream. The pipe broke and was repaired.
Regarding the retaining wall, B. Pfau felt it was obvious that the wall, as is, is a structure that violates setbacks. He felt that the wall could probably be brought into conformity in some way, but regardless of the property line issue, it had to be dealt with. M. Murray noted that a variance for the amount of fill might be required as well.
P. Kenyon indicated to the applicant that she would accept additional information up to one week prior to the December 15 meeting. Atty Schachner indicated they would try to the best of their ability, asking the Board to encourage the Markis to allow the Byers’ surveyor access to their property so that an accurate survey can be provided. K. Hoopes felt that both parties should maintain communications with P. Kenyon. When asked, Mr. Byers’ indicated that his contractor attempted to engage the services of a surveyor immediately after the July meeting. The soonest he could get the current surveyor (David Bolster) was approx 2 months ago.
Counsel asked Atty Pentkowski if his clients could commit to allowing Mr. Bolster on their property in order to provide an additional survey. Atty Pentkowski indicated that they could not this evening, but would likely be able to if the applicant was willing to remove the wall. G. Smith indicated that these were games he didn’t want to play. Atty Pentkowski asked Counsel if it is his understanding that as long as the application is pending, the violation can continue. Counsel indicated this was the case. Again, Atty Pentkowski asked that the public hearing be closed. Counsel did agree with him in that it was the burden of the applicant, not the neighbor, to provide all the information needed for a completed application. It was determined that the original map submitted with the application was an altered version of a previous survey map (done by Dennis Dickinson). Counsel felt that the Board should rely on a certified survey, which has been provided (by Mr. Koch), and could move forward this evening based on that survey. Furthermore, he suspected that Mr. Bolster’s survey would not differ from Mr. Koch’s.
Atty Schachner was under the impression that the Board and Counsel were not aware of the certified map prepared and stamped by surveyor Dennis Dickinson, and he provided the same. He noted that it (revised July 11, 2003) was part of the submission made for the July meeting. After reviewing the map, P. Kenyon noted that it had never been submitted to her office, and therefore not to the Board members. Counsel noted that on this map, it indicated that the stone (retaining) wall does not encroach onto the neighbors’ property. The surveyor certified this map to M&T Mortgage Corp, Fidelity National Title Insurance Co, and to Mr. Byers. M. McComb pointed out that whatever the true property line is, the retaining wall does not meet the 15’ setback requirement.
Atty Schachner note that there have been statements made that presume that the wall is encroaching, and the applicant is in violation. To his knowledge, no notice of violation exists and therefore no violation exists.
B. Pfau asked both parties (Byers & Markis) to keep in mind that the Board will have to make a decision to either move the wall or allow it to stay exactly where it is. K. Hoopes noted that there are also options to bring the wall into compliance.
Atty Pentkowski felt that the Board had just determined in its discussion that there is another way for the applicant to get the relief he is seeking, which is one of the criteria that must be met in order to grant a variance. He felt there was no need to continue the application if they’ve already come to this conclusion. K. Hoopes stated that the Board did not have to meet all 5 elements of the criteria for granting variances, as long as they have a good reason to be missing one. Atty Pentkowski offered to send the Board some case law on this point.
Motion by K. Hoopes to table the application until the December 2003 ZBA meeting. Seconded by M. Murray. All in favor. Motion carried.
Meeting adjourned at 10:25 p.m.
Respectfully submitted by,
Melanie Quigan
Recording Secretary
12/08/03