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 15, 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 6:32 pm by asking for corrections to the October 2004 minutes. K. Hoopes noted that on page 20, he had inadvertently omitted the fifth finding and he requested the minutes reflect that there would be no physical or environmental impacts associated with the Byers variance approval (V04-47). Motion by T. DePace to approve the October 18, 2004 minutes as amended. Seconded by K. Hoopes. All in favor. Motion carried.
1) V04-48 CUMMINGS, MICHAEL. To allow a deck to remain, seeks area variance for 1) a deficient front yard setback. 75’ is required from the edge of the right-of-way; 49’ is proposed: and 2) a deficient side yard setback: 20’ is required; 9’ is proposed. Section 212.02, Block 1, Lot 2, Zone RL3. Property Location: 135 Coolidge Hill Road. Subject to WCPB review. NOTE: After the fact. This item was tabled last month, pending remediation by the Town Board.
Mr. Cummings indicated that he proposes to remove a 9’ x 12’ section of the deck on the corner closest to the property line, bringing it more into compliance. He asked the Board to consider that none of his surrounding neighbors, including Larry Smith who is closest, object to the deck. Furthermore, he noted that the deck has no environmental impact or detriment to the health, safety or welfare of the neighborhood, adding that he was fined an excessive amount of money, which has become a financial hardship for him.
G. Smith was not satisfied with the amount of decking the applicant proposed to remove. He indicated he would like to see an additional 4’ removed from the entire front, adding that he would not have approved the deck as proposed if it were presented prior to construction. B. Pfau felt that what was proposed was the most logical solution given the location of the existing footings, noting that Mr. Cummings has incurred a large fine and has the added expense of removing some of the construction.
There was no one from the public to speak on the application. To address G. Smith’s concerns, Mr. Cummings offered to remove an additional 7½’ of decking to the next support beam, such that the section to be removed would become 16½’ x 12’. This would not change the setback measurement, taken from the closest point, which in this case is the stairs on the southwest corner. M. Murray felt the overall request was substantial, as the footprint of the deck and porch was almost as large as the house footprint.
RESOLUTION
The Zoning Board of Appeals received an (amended) application from Michael Cummings 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 (amended) application;
this Board makes the following findings of fact:
The application of the applicant is as described in Item #1 on the agenda.
The Board makes the following conclusions of law:
1) The benefit can’t be achieved by any other means feasible other than an area variance in this situation, considering that the house sits next to that lot line;
2) (Whether there would be an) undesirable change to the neighborhood character to nearby properties: it doesn’t seem to be an issue, especially with the additional footage of deck to be removed;
3) Whether the request is substantial: that also has been addressed with the removal of additional deck;
4) The request will not have adverse physical or environmental effects on the neighborhood or the area. It’s a wooden deck.
5) The (alleged) difficulty is self-created, but the solution is also self-created.
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 amended to reflect that a 12’ x 16’6” section of the deck will be removed on the southeast side instead of the 9’ x 12’ section originally proposed and with the condition that the applicant pays the fine imposed by the Town Board at its November 3, 2004 meeting prior to a certificate of compliance being issued. All in favor. Motion carried.
2) V04-49 BUTLER, TIMOTHY & CLAIRE. To allow a storage building to remain, seek area variance for a deficient rear yard setback. 20’ is required; 15’ is proposed. Section 156.00, Block 1, Lot 10, Zone RM1.3. Property Location: Lakeview Hill Road third lot on the right. NOTE: After the fact.
Mr. Butler stated that they would like to keep the storage building as it currently exists, noting the he had removed the holding tank that was once there in an effort to return the structure to a storage shed. It was noted that the property is part of an association, and the structure over the years had been equipped with septic, kitchen and sleeping facilities. Mr. Butler indicated that the shed has been there for 6 years, and the septic system was installed under a sewer permit (for a 3-bedroom single-family dwelling, which was never constructed) issued by the former zoning administrator in 1994. Mr. Butler indicated they would like to construct a single-family dwelling on the property in the near future.
It was determined that regardless of whether or not the storage building met setbacks, it would require a use variance because it would be an accessory use without a principal. If the applicants were to propose the structure as a single-family dwelling, they could not get the proper building permits, as DOH is prohibiting the issuance of any building permits until the current water situation in the association is resolved.
K. Hoopes felt that the matter should be referred to the Town Board for remedial action, including the imposition of a fine, to address the long outstanding violation on the property.
From the public, Joe DeLorenzo, a neighbor within the same association, spoke in opposition of the proposal, referring to a deed that indicates a residential structure in the association must include at least 2 bedrooms, a kitchen and toilet facilities, which the Butlers’ structure does not. He felt the structure should be removed, noting that only recently, when the door of the structure was left open, was it discovered that it was equipped with kitchen, bathroom and sleeping facilities. He further noted that the deed also prohibits campsites.
Counsel noted that the ZBA doesn’t get involved with deed restrictions, which are only enforceable by aggrieved parties and subject to a 2-year statute of limitation. He noted that the applicant has reverted the structure back to a storage facility, creating a use variance situation, as outlined in the zoning ordinance. He further noted that the application in front of the Board is an area variance for setback relief, which needed to be dealt with prior to the use variance being addressed under a separate application.
P. Kenyon noted that through discussions with Mr. Butler and Counsel, it was determined that if the area variance were granted, the ZBA would be encouraged to allow the applicant a certain amount of time to construct the single-family dwelling. However the problem lies in the fact that the Health Dept won’t allow the Town to issue any building permits, as discussed. Mr. Butler noted that he initially was going to seek a use variance to have a storage shed, but at the recommendation of P. Kenyon and Counsel, he is instead seeking the area variance.
T. DePace and G. Smith felt the structure should be removed. P. Kenyon noted that if the ZBA doesn’t grant the request, the applicant must remove the shed. It was suggested the matter be referred to the Town Board for remedial action, to which G. Smith disagreed because he felt the violation was too old to send to the Town Board. B. Pfau felt that procedurally, the Board needed to address the specific area variance request in front of them, noting that if the setback request was denied, the applicant could move the structure to eliminate the need for the area variance. However, the applicant would be required to apply for a use variance, at which time the Board could then require the applicant to remove the structure. It was the consensus that the end result of any ZBA and/or Town Board review would be the removal of the shed, so the following motion was made.
RESOLUTION
The Zoning Board of Appeals received an application from Timothy 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, 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 #2 on the agenda.
The Board makes the following conclusions of law:
1) The benefit can be achieved by means other than an area variance, but in so doing, the applicant then puts himself in use violation;
2) (Regarding whether there would be an) undesirable change in the neighborhood character to nearby properties, that’s been established: that little blue shack sitting there in the neighborhood of otherwise finished and proper homes. It’s been revealed that there’s deed restrictions involved, so that obviously aggrieves the neighbors;
3) The requested variance is substantial, if for no other reason the confusing aspects of it;
4) The request probably is having adverse, or has had adverse, physical and environmental effects (in the neighborhood or district). There is a holding tank situation that the Board knows nothing about, although the Board normally doesn’t get involved with septic systems;
5) The alleged difficulty was self-created at least 6 years (ago). It all could have been alleviated if the original building permit had been acted on;
Now, upon motion duly made by K. Hoopes and seconded by M. Murray, it is resolved that the ZBA does hereby deny said project as presented. The ZBA hereby refers the applicant to the Town Board for alternative remedy with the recommendation that the cabin be removed, and that the proper fines be applied. 6 in favor. 1 (T. DePace) recused himself because of his association with Chic’s Marina, where a neighbor (who spoke in opposition this evening) works. Motion carried.
Counsel informed the applicant that the matter would be placed on the agenda of the December 7, 2004 Town Board meeting, which begins at 7pm.
3) V04-50 SLATER, ROBERT & ELINOR. Represented by Dick Paull of Pioneer Homes. 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; 32’ is proposed. Section 200.00, Block 1, Lot 15, Zone RM1.3. Property Location: Intersection of Powers Court & Route 9N (just north of Peace Pipe Cottages - the old Tomahawk property). Subject to WCPB review.
Mr. Paull presented photographs to the Board showing the area where the applicants propose to build a single-story, 1-family house on the old Tomahawk property. They do not propose to encroach upon the setbacks from the nearby brook or Route 9N, but only upon the setback from the right-of-way that goes through the applicants’ own property. They will only need to clear some brush and a pine tree approximately 7” in diameter.
Mr. Paull indicated that the neighbors have no objections to the proposal. There is an existing buffer between the proposed house and the existing driveway (right-of-way) that would not be disturbed. If they moved the house back away from the right-of-way, it would interfere with the rear setbacks. G. Smith noted that the Board recently granted a similar variance on a nearby property due to the location of the same right-of-way. Mr. Paull indicated that the existing concrete pad would likely be removed, but the asphalt drive would likely remain. G. Smith felt that the applicants have done their best to comply with setbacks.
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 Robert & Elinor Slater 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 on the agenda.
The Board makes the following conclusions of law:
1) The benefit really can’t be achieved by other means feasible to the applicant. There seems to have been every effort made to avoid the stream and sideline setbacks. This is a modest house on a modest lot, and seems a well-thought out project;
2) There will not be an undesirable change in the neighborhood character or to nearby properties. It will probably be nice to have a dwelling going in there;
3) The request is not substantial, given the specifics of this right-of-way is on his property and this is the best and really only feasible location for the house on the property;
4) The request will not have adverse physical or environmental effects;
5) It’s self-created, but the benefit to the applicant outweighs any negative aspects of the proposal.
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.
4) V04-43 SMITH, STUART. To alter existing single-family dwelling, seeks area variance for deficient front yard setbacks. 1) 75’ is required from the edge of the right-of-way from Coolidge Hill Road; 47’ is proposed; 2) 50’ is required from Mill Stone Drive; 20’ is proposed; 3) a deficient side yard setback. 30’ is required; 11’ is proposed. Section 185.20, Block 1, Lot 8, Zone RCL3. Property Location: 717 Coolidge Hill Road. Subject to WCPB review.
This item was moved to the end of the agenda, at which time Chairman G. Smith recused himself and represented the application as follows. B. Pfau chaired.
M. McComb expressed her concern about the ethics of G. Smith recusing himself and representing his brother’s application. B. Pfau remembered a former ZBA chairman (Saris) recusing himself and representing his relatives on an application in front of the Board. Counsel agreed with M. McComb, saying that the ethics would require that the applicant appear, and G. Smith not participate in the Board’s deliberations. K. Hoopes referred to a similar case (see pg 26 of 02/23/04 ZBA minutes for BYERS V03-24), in which a Board member was a supporting neighbor, and the applicant’s attorney argued that although a Board member recuses himself, he does not relinquish his rights of citizenship (to speak publicly). Counsel agreed, but noted that in this case, G. Smith is an advocate for the applicant, which puts the ZBA in a difficult position, although there likely wouldn’t be a problem with this particular application since there was no public in attendance. He suggested in the future that this not occur again.
G. Smith explained that this is an old residence, which appears to have 3 sections. The proposal involved the northern portion of the structure, which is dilapidated and sits on footings (the rest of the house has a foundation). S. Smith wishes to remove part of the structure and add on a slightly larger kitchen than is there now, with a full basement underneath. The proposal also includes a screened porch off the northwesterly corner of the house.
G. Smith gave the following history of the property, explaining that for years, the structure contained 4 apartments, including one in a large addition off the rear center of the house that was recently removed. At the southern end of the structure (toward the screened porch) there were a couple of apartments and a separate structure in the rear. These two apartments are now gone and this area will eventually become living space for the main house. The structure has been converted back to a single-family residence.
M. McComb noted that the building would now be 112’ in length, and the maximum allowable length is 120’. K. Hoopes noted that although the addition would further encroach on the setback from Millstone Drive, it would not further encroach on the setback from Coolidge Hill Road. It was noted that the nearest residence in this cottage colony on Millstone Road is approximately 150-200’ down the road. No neighbors have expressed objections to the proposal.
G. Smith indicated that the applicant would be adding a lot of landscaping in the spring. There was a discussion as to what the distance would be from the addition to the common right-of-way (Millstone Drive). P. Kenyon indicated she believes the closest point of the new construction would be 20’ from Millstone Drive and 11’ from the northerly property line. G. Smith indicated that the addition would not interfere with emergency access along Millstone Drive.
M. McComb noted that the floor plans showed (a variety of) scales instead of dimensions, and the elevations drawings did not show dimensions, as she noted is required of other applicants in front of the Board. G. Smith was not certain as to the height of the structure, but indicated it would stay about the same as it is now, such that it is taller in the center and shorter on both ends.
The WCPB determined no County impact.
RESOLUTION
The Zoning Board of Appeals received an application from Stuart 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 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 #4 on the agenda.
The Board makes the following conclusions of law:
1) The benefit in this case can’t be achieved by any other means besides an area variance;
2) The request will not change the neighborhood character to nearby properties. This is updating a very old house. The applicant can’t move the house, so if he’s going to add to it, this is the direction he has to go;
3) The request is not substantial considering what has been taken away from that property. It’s a small addition, and is also a great improvement structurally and otherwise;
4) The request will have no adverse physical or environmental effects;
5) The alleged difficulty, especially considering the age of the house, was not self-created.
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.
5) V04-18 SMITH, MARTIN. Represented by Attorney Mark Rehm. For the construction of a proposed single-family dwelling, seeks area variance for deficient density. 50 acres are required; 31 acres exists. Section 170.00, Block 1, Lot 29, Zone LC25. Property Location: Edgecomb Pond Road approximately 1,900’ from Potter Hill Road. Subject to WCPB and APA review.
Atty Rehm distributed a detailed hand-out which addressed the criteria for granting an area variance. He explained that the applicant wishes to construct a single-family dwelling on this 30.4-acre parcel. He referred to the northerly portion of the parcel on the survey, which showed a wood frame structure, permits for which were issued to the northerly neighbors, the Barracks, a few years ago. Upon Mr. Smith’s surveyor (VanDusen & Steves) plotting out the parcel, it was discovered that the wood frame structure had been built approximately 99’ in from the northerly property line, on Mr. Smith’s property. Atty Rehm does not believe the structure is currently inhabited. Mr. Smith purchased the property in 2002, at which time the Barracks owned the parcel to the north.
K. Hoopes summarized the situation such that the applicant needs a density variance because upon Mr. Smith constructing his proposed single-family dwelling, there would be 2 primary structures on the property, for which there is not enough land. He felt that this was a civil matter, and asked if the applicant has had any success in discussing the matter with the Barracks. Atty Rehm indicated that Mr. Smith has not received any response from the Barracks to his many attempts to resolve the matter, noting that he has even offered to address the situation through a boundary line agreement.
Atty Rehm noted that the Town issued permits to construct the wood frame structure, but not on Mr. Smith’s property. P. Kenyon indicated that the Barracks got approvals from the PB to build a single-family dwelling in 2001. Atty Rehm indicated that his client has made every effort to settle the matter, shy of bringing suit against the Town or the Barracks, and he feels that what is being proposed would avoid litigation and is the best solution for all involved.
G. Smtih asked Counsel if the civil matter should be addressed prior to the Board hearing the variance request. Counsel responded that he spoke with Mr. Smith 3-4 months ago about the situation, advising him to address the matter through litigation on the assumption that his facts were correct. Counsel felt Mr. Smith had a strong case. Mr. Smith had also raised the possibility of taking action against the Town, which Counsel felt would be unsuccessful, as the Town merely gave permits based on compliance with zoning regulations.
Based on his discussions with Atty Rehm, Counsel indicated that the applicant hopes to persuade the ZBA, in its consideration of feasible alternatives, that litigation is not a feasible option, due to the great expense involved. He further noted that if the ZBA grants the request, the APA has the ability to reverse the Board’s decision, as they did on another recent variance request for density (see APA letter dated 07/19/04 re: ZBA approval of COLLINS, V04-06 on 05/17/04). Counsel indicated that the Board has a right to rely on the survey provided by the applicant.
K. Hoopes indicated that if Mr. Smith’s survey is correct, he would be willing to grant a temporary variance allowing the applicant to begin construction, assuming successful litigation would result in the wood frame structure being removed, eliminating the density variance. Counsel advised that there is no such thing as a temporary variance, and the APA would likely not recognize such a finding.
Regarding the discrepancies between the neighbors, Counsel noted that the ZBA cannot compel the Barracks to provide a survey supporting their claim that the wood frame structure is built on their own property. T. DePace felt that the Town should also be able to address the fact that the structure was constructed on a parcel other than what was represented at the time permits were issued. P. Kenyon indicated that they haven’t pursued the matter at Counsel’s advise, to which Counsel responded that up until this evening he had not seen the VanDusen & Steves survey.
G. Smith felt the applicant should withdraw the application and seek resolve through civil litigation. K. Hoopes instead felt the ZBA should make a determination that a variance is not required for Mr. Smith to build his house. M. Murray agreed, noting that there has been no proof offered by the Barracks that the wood frame structure was built on their own land. K. Hoopes noted a possible future problem such that if, after Mr. Smith builds his proposed single-family dwelling, it is determined the structure is indeed on Mr. Smith’s property, he decides to keep it rather than have it removed, which would bring back the need for the density variance.
Counsel advised that if the Board chose to make a determination that a variance is not required, the motion should include a recommendation that the Town Board take action against the Barracks. M. Murray felt that once the ZBA made such a determination, Mr. Smith would have a stronger litigation case, and could possibly have the right to remove the structure himself (Counsel advised the applicant not do this).
B. Pfau raised the idea of the VanDusen & Steves survey being incorrect. Counsel felt that the Board had a right to rely on the certified survey provided. Board members noted that the alleged encroachment did not involve a minimal distance, but rather a significant distance of 99’.
During the following motion, P. Kenyon wished to note that the wood frame structure was begun prior to the building permit being issued.
Motion by M. McComb for the Board to make a determination that, based on the VanDusen and Steves survey dated 02/02/04 (stamped received 10/18/04) presented by Atty Rehm, a variance is not required because the wood frame structure constructed by the Barracks is illegally and improperly situated on the lands of Martin Smith. The ZBA anticipates that the final resolution will be that the structure will have to be removed, leaving Mr. Smith’s proposed single-family dwelling as the only primary structure on the parcel, whereby eliminating the need for a density variance. Seconded by M. Murray. All in favor. Motion carried.
Motion by M. McComb that the ZBA hereby refers the matter (regarding the Barracks constructing a structure on Mr. Smith’s property) to the Town Board for remedial action with a recommendation that the Barracks be required to remedy the situation that they created in constructing the wood frame structure, which was begun without a permit, on Mr. Smith’s property. Seconded by M. Murray. All in favor. Motion carried.
Item #4 was heard at this point.
Meeting adjourned at 8:15 pm.
Respectfully submitted,
Melanie Quigan
Recording Secretary
11/29/04