The regular meeting of the Zoning Board of Appeals for the Town of Moreau, Saratoga County, and State of New York was held at the Moreau Town Hall, 61 Hudson Street, South Glens Falls, NY 12803 on March 22, 2006 at 7:00 p.m. with the following members present or absent:
Present: Gerhard Endal, Chair Absent: James Hooper
Kevin Elms Chester Joslin
Darrell Finlayson
Others present: F. Joseph Patricke, Building Inspector
Atty. Martin J. Auffredou, Attorney for the Town
The meeting was called to order at 7:03 p.m. and the members present reviewed the minutes of the January 25, 2006 meeting. Mr. Elms motioned to approve the minutes with an amendment, and Mr. Finlayson seconded. Motioned passed unanimously.
The Board did not hear Appeal No., 652, a request of Donald J. Vittengl, because the applicant could not be present and had requested it postponed.
The first order of business was Appeal No. 653, a request of Larry Clute of 6 Holden Ave., Queensbury, New York 12804 for an Area Variance pursuant to Chapter 149, Article X, Section 149-59 (A) and Town law 267-b. Applicant is requesting relief from the required minimum lot width at the building line of 175 feet. This property is located at 148 Reservoir Road, Fort Edward, New York 12828 in an R-2 (One and Two Family Residential) District and is designated as 64.1-1-27.2 on the Town Assessment Map.
Mr. Matt Steves presented the building plans and lot drawing. The applicant is requesting to build where there is 125ft. of frontage instead of 175 ft. The structure could be placed at the back of the lot without a variance, but this would require destroying a wooded area. In order to stay in the predominantly cleared area, the applicant would like to place the structure, a duplex, closer to the road where the lot width is 125ft.
The lot has the required 40 feet road frontage for a building permit, and was subdivided from another lot within the past year. The other lot also conforms to all the building permit requirements. The applicant needs a variance because of where on the lot he would prefer to build. Mr. Clute stated that he had faced a lot of concern over the building on the first lot, and the neighbors’ concerns are part of the reason that he would prefer to leave the woods intact as he builds on the second lot. At the time of the subdivision he did not have the required 350 ft width to get two equal conforming lots.
Mr. Patricke confirmed that he had spoken to a number of the neighbors as well.
Mike Tobin of 3 Hazen Place asked why the lot was clear cut prior to this meeting and the applicant obtaining the variance. The applicant responded that the cutting was done to install the septic and bring in fill. Mr. Clute still plans to build with or without the variance, the only question is where on the lot, so he had to clear the area in the front to begin this process. He has applied for the variance in order to avoid further cutting.
Mr. Patricke pointed out that the applicant started building without realizing that the codes didn’t permit the two dwellings to be built parallel. Clearing the lot is the applicants’ prerogative anyway.
Mr. Endal asked why the lots had not been split evenly and two variances requested, and the applicant stated that the Building Inspector preferred that the subdivision process create one non-conforming lot instead of two that would immediately need variances.
Mr. Vasak of 2 Hazen Place, asked whether there are plans to develop another lot towards Rt. 32 which is currently forested. He also asked how close to the road and other building the new building will be. The applicant explained that there would be 40 feet on either side of the house, and that it would be built parallel (same distance from the road) if he gets his appeal. The other land Mr. Vasak asked about belongs to the Farr’s, and no one knows of any intentions regarding it. Mr. Patricke said that it was probably not buildable because there is a house on one part of it already, and if it were subdivided it would not have any road frontage.
The applicant stated that if he builds at the 175 ft. width, the front of this house will be at the back of the matching building next door. It would require a good deal more engineering considering well and septic systems. Chairman Endal asked and was told that the second lot can not be subdivided any further.
Mr. Elms pointed out that no matter where Mr. Clute builds the house, he can still do whatever he wants to the trees and so, to deny the variance on this basis doesn’t really do the neighbors any favors.
Atty. Auffredou recommended against imposing any deed restrictions pertaining to trees because of enforcement complications.
Mr. Gerald Bouchard appeared and stated that he was representing the Prendergasts, neighbors of the lot in question. He pointed out again that a later owner could always add a pool or other changes that would result in clearing the back yard. The neighbors prefer the two buildings be parallel so that the trees stay in place.
Mr. Patricke added that he prefers not to see one house behind another because it complicates enforcement.
The proposed variance is 50 ft. Mr. Steves pointed out that front and side setbacks are amply met. Mr. Patricke pointed out that if municipal water were provided, that would reduce the width requirements at the building line anyway, and there is a strong possibility that water lines will be put in in the near future. Additionally, the building style is very compact and a good use of the space.
Mr. Bouchard asked if the Board could add to the variance for the record that they did not intend that there would be any sideline setbacks requested in the future. Mr. Patricke pointed out that side setback variances based on narrow lots do not come before the Board in the first place; according to current law they are determined by a formula. The primary structure would conform to the sideline setbacks.
The Board reviewed page two of the SEQR and Mr. Elms motioned to make a negative declaration. Mr. Finlayson seconded. A roll call vote resulted as follows:
Mr. Finlayson Yes
Mr. Elms Yes
Chairman Endal Yes
WHEREAS, The Board reviewed the criteria for granting an Area Variance and found as follows:
NOW, THEREFORE BE IT RESOLVED that Mr. Elms motioned to approve a 50ft relief from the requirement for 175 ft. width at the building line, and Mr. Finlayson seconded. A roll call vote resulted as follows:
Mr. Finlayson Yes
Mr. Elms Yes
Chairman Endal Yes
Motion carried and Appeal No.653 was granted.
The Board reviewed Appeal No. 654, a request of St. Andrew Lutheran Church of 600 Gansevoort Road, South Glens Falls, New York 12803 for a Use Variance pursuant to Chapter 149, Article X, Section 149-59 (B) and Town Law 267-b. Applicant is requesting to convert the existing single family residence on this property into a two family residence. This property is located in an R-1 (One Family Residential) District and is designated as 50-1-9 on the Town Assessment Map.
Pastor Marcia Garrett, pastor of the church appeared with her husband, who was also the contractor on the building of the apartment. She explained that the church building, purchased from St. Timothy’s Episcopal Church, came with 5 acres and a parsonage. St. Andrew Lutheran has never had a pastor live in the house, but a member who takes care of the grounds does live there. There were offices, a conference room and a bathroom in the basement which this pastor decided she could not use because of allergies. It was then decided to add a shower and some other changes so that a church member in need of housing could live there.
Pastor Garrett reported that at the time the changes were made, the church was not aware that two family dwellings were not allowed in the district. Several church members including the prospective tenant were present in support of the project.
The living area in the basement is less than 600 sq. feet, which is not the entire basement. Chairman Endal asked whether the use of the house by a non-pastoral resident, i.e. a caretaker was allowed and was told that it was.
Mr. Finlayson asked if rent was being paid and the applicant said that there is some rent paid in addition to the custodial and grounds work provided. If the variance is granted and the building is an acceptable two family dwelling, it could later be rented to anyone.
Atty. Auffredou asked and was told that no Lutheran church pastor had ever lived there, but it was intended as a parsonage when St. Timothy’s Episcopal Church was there. The Lutheran Church has owned the property for close to 10 years.
The apartment is essentially three rooms and a bathroom, and is suitable for only one or two people. Their intention at this time is for one.
Mr. Patricke reminded the applicant that there will be more work required to meet the building codes required to make an official two family dwelling. Mr. Garrett, the contractor stated that the work had been completed and inspected visually and the only change he knew of was a window access to the ground. The Building Inspector reminded the applicant that this inspection does not amount to an occupancy certificate.
The Board asked whether rent was being paid upstairs, which it is. Mr. Patricke explained to the Board that if renting property was on the church’s Special Use Permit, then they could rent to anyone they wanted. However, Chairman Endal stated that the Special Use Permits are reserved for exceptional cases. Pastor Garrett stated that the property is unique because the access and use will be hidden from public view. Chairman Endal replied that it is the need for the use which needs to be exceptional.
Mr. Elms expressed concern about apartments being in the basement. A church member stated that it is a bi-level building with three sides buried, the fourth side being completely open.
Gary Fairchild, a member, stated that it was very open and might have been a garage at some point.
Atty. Auffredou asked if the Town might address the issue by considering an amendment to the Special Use Permit, adding the housing of needy church members as a religious activity.
Mr. Elms asked whether for a mother-in-law apartment, which is not completely separated from the rest of the house, the guidelines would be different. In order to still be considered a one-family dwelling, it is required that residents use the same entrance and exit, and not have separate living areas.
Atty. Auffredou restated that he thought the Board could consider housing the needy person a religious use, already covered by the existing permit. Chairman Endal stated that this is a substantial change from the usual use of a church property.
Mr. Patricke informed the applicants that the use of the office trailer that Pastor Garrett had mentioned as an alternative to the basement offices is also not allowed, and he would not issue a permit for the trailer on the property.
Chairman Endal stated that as sympathetic as he is to the church’s desire to help, this is too big of a variance to the usual use. Pastor Garrett asked how the Town could work with the church.
Regina Haag, the pastor of Adirondack Friends Meeting House on Saratoga Avenue, presented a statement that the church is just trying to live out their call to help a needy person find clean, affordable housing according to the gospel. She asked that the community choose also to help the needy.
Mr. Endal stated again that he sympathized.
Gerald Bouchard asked that the Board review the criteria for granting a Use Variance, so that the church members could hear and understand the constraints on the Board.
The first criterion is lack of reasonable return on an investment, but there had been no discussion of expense and return.
The second requirement is to show that there is a hardship relating to the property which does not apply to a substantial part of the remainder of the neighborhood.
The third issue is whether the Use Variance would alter the essential character of the neighborhood, which it would not as it is a residence and the church is in a residential area.
The final criterion is whether the difficulty is self- created, and Chairman Endal pointed out that the church’s desire to help unfortunately created the difficulty.
The pastor argued that there was already traffic at other churches and a seniors' home in the area, and this change would not impact the community.
Ms. Haag asked how Roman Catholic facilities with multiple apartments in parish houses get around this requirement, and was advised that this is how the modification of the Special Use Permit might apply.
Mr. Garrett argued that no precedent is being set because no one is proposing a new structure, and neighbors would probably not notice the change in use. He point out that this does contradict the intent of the law and should be allowed, but Chairman Endal told him that State Law governs how they are allowed to interpret the code.
Chairman Endal said he thought that a modification of Special Permit would be better, but that is was not guaranteed. Mr. Bouchard pointed out that the Special Permit would go with the land, and some other church or other future owner might use it with different intent. Temporary variances limiting the Special Use to this owner are hard to enforce and do not appeal to the Board.
Atty. Auffredou mentioned for the applicants’ benefit that lack of return on investment arguments are also very hard to prove and rarely the criteria used to grant a variance.
The Garretts expressed their concern about having a converted apartment that they could not use, and Chairman Endal expressed that the Town could not grant the Special Use under these circumstances.
She asked if classrooms could be added instead and Mr. Patricke said that would not be allowed either, and that the previous office use described in the basement use would not have been legally allowed either. Atty. Auffredou affirmed that the entire 5 acres is included in the Special Permit, but that all changes are supposed to be amended. As an example, a member of the upstairs family could sleep in this area, but separate living quarters immediately made it a two family dwelling. The church was urged to discuss possible ways to use the building with the inspector at another time.
The Garrett’s asked for guidance as to which type of permit they ought to request, and Atty. Auffredou stated that the town could supply the permit applications, but he urged them to carefully consider their options and perhaps retain some professional assistance. Chairman Endal added that an application to add any housing that was not for a pastor or custodian would immediately be a concern for the Board. Atty. Auffredou added that discussion would have to do with public health, safety and welfare, and Chairman Endal said that it would be easier to consider housing as a religious use in that type of appeal. The members of the Board expressed their appreciation for what the church wants to do, and encouraged them to talk to the Building Department and a lawyer. The applicant was cautioned that there is no guarantee that these alternative appeals discussed will be granted either.
The applicants requested to withdraw their appeal and are able to reopen it at any time.
Ms. Haag stated that she hoped more churches would come forward asking to do this kind of work, and that the Town would enable them to do so.
Mr. Larry Sweet and Ms. Ilona Coyle appeared with continued business, Appeal No. 645.
Ms. Coyle presented copies of the subdivision map in question. Mr. Sweet wants to build a single family home at 8 Violet St., and can not get a building permit because the lot doesn’t have any road frontage. The question had been addressed by the Planning Board in February 2006, to discuss an exception to the requirement of frontage on an improved public street. The Planning Board did recommend that this Board consider this appeal in light of the uniqueness of this corner lot and ongoing discussions with the Jacobie estate regarding the completion of paper streets in the subdivision. Ms. Coyle argued that a very narrowly worded variance would give Mr. and Mrs. Sweet some relief without setting precedents for the remainder of the subdivision in question. She pointed out that the lot has a generous 100ft. of frontage in easements, which the planning board recommended be considered. The 50 year age of the subdivision make it unlikely that this situation will occur in the future. New laws require that sub-dividers pay a bond for the improvements of the street, so new subdivisions will not have this problem. Although there are other lots with the same age and problem, those owners have not made all the attempts to reconcile the issue and can not argue that they are so close to the improved street.
Ms. Coyle said that the proposed driveway will make the house indistinguishable from the others around it. All of the areas where there are easements are currently owned by the Jacobie estate, and there are no public plans for changes. The estate has again declined to sell the frontage to Mr. Sweet after Ernest Jacobie passed away recently. She presented a case where another ZBA had included easement areas in a frontage requirement, where a property had only 8.5 feet of frontage without the easements. She argued that there would be no adverse effect because the proposed building is a single family dwelling and fits into the character of the neighborhood. With regard to whether the hardship was self-created, she argued that the non-conforming lot had existed long before Mr. Sweet bought it.
Chairman Endal asked Atty. Auffredou for a rundown of the Planning Board discussion, and he said that the Planning Board had spent a lot of time on this issue and did find that there were a number of special circumstances on this lot, including the corner location and the large easements. In sum, they did not have a problem with the proposed variance, and that in the spirit of the law, there were no concerns about emergency access by the end of the meeting. There were many concerns expressed about the possibility of setting precedents for all of the other lots deeper in the subdivision. It was agreed that Mr. Patricke and Atty. Auffredou should initiate some conversation with the Jacobie estate representation and any other land owners in the subdivision about this ongoing dilemma.
Chairman Endal agreed that the planned building would probably fit in well in the subdivision.
Mr. Patricke asked how much of the lot fronts on the improved street. Ms. Coyle reiterated that the corner point of the lot is on two streets, but there is no actual frontage.
Atty. Auffredou said that as he understands it, access can be given via easement and not frontage and has been granted by variance in other instances. The variance still has to meet the requirements for granting a variance. The intent of New York State statute 280A is road frontage, but variances can be applied to it. State Law 280A is what Town Law 267b is based upon.
Mr. Patricke stated that he has no problem with Mr. Sweet or his buildings, but that he really would prefer to see the Planning Board resolve the whole subdivision instead of setting Mr. Sweet apart from it. Ms. Coyle stated that the Planning Board does not have the power to force the Jacobie estate to sell Mr. Sweet land or improve a street, they can only prevent future incidents. She argued that the Planning Board had already determined that this lot is unique. However, Mr. Elms argued that there are other lots already sold which the Board should consider. Atty. Auffredou stated that this lot is the only one with public roads so close to it. Ms. Coyle stated again that a narrowly tailored variance would eliminate the potential for setting precedents.
Chairman Endal expressed concern that an easement is not a reliable guarantee of access, as it can not be reasonably expected to be maintained like a public road. The easement in the deed only states that a person can drive on it to access the property. Other applicants have been denied permits on this basis in the past.
Ms. Coyle pointed out that the plans are not to build a private road, but to build a short driveway. The easement/driveway would have 50 feet frontage on each side for a total of 100 feet of available frontage. The driveway frontage could be considered the frontage on a public road. Fire trucks that could reach the end of the driveway would be 35 feet from the structure.
With regard to the possibility that the road be improved in the future, Ms. Coyle stated that any driveway built on a paper street is considered temporary pending the creation of actual roads. The easement is implied based on the fact that this is a paper street, and the easement goes away as soon as the road is built. This is a proper use of the implied easement.
Since Ms. Coyle had mentioned the implied easement, Atty. Auffredou asked if there was a written easement, and Ms. Coyle said that it is written for Flushing Ave. for purposes of a driveway. There is nothing written for Violet Street. Atty. Auffredou read the easement from the deed, and Ms. Coyle highlighted the area on the map. Atty. Auffredou stated that implied easements over paper streets are not intended as road frontage. Ms. Coyle argued that the town has the right to demand the frontage, but that the town also has the right to except this lot from the requirement at will. This would not infringe on either party’s rights.
The Board asked and Ms Coyle said that the pavement ends about 35ft from the edge of Mr. Sweet’s property. She showed a photograph. Chairman Endal asked if the driveway would be built on the paper easement or the deeded easement and Ms. Coyle and Mr. Sweet said that he would do either. The address is 8 Violet Street, but it can be changed.
The Board discussed allowing the 50ft deeded easement on Flushing Avenue to be used as road frontage.
Chairman Endal stated that his concern was still over past precedent against granting permits without the frontage. He stated that there were other long-standing undeveloped streets in Town. Atty. Auffredou read that the easement says that the grantor can grant a similar easement over the area to another party, giving a neighbor permission to cross over Mr. Sweet’s driveway.
Ms. Coyle stated that that’s why the Planning Board wants to resolve the issue. She argued that the corner lot still makes this lot unique over all the other lots that may want to do the same thing.
Chairman Endal argued that other driveways crossing over Mr. Sweet’s driveway could argue for the easement to be used as road frontage the same way. Shared driveways were discussed, but Mr. Patricke said that any such driveway also has to go before a Board. Some properties do share aprons for their driveways, but the actual driveway has to be on each property. Ms. Coyle again argued for a narrow definition of the reasons for granting the variance, to distinguish this lot.
Mr. Patricke pointed out that laws have changed and this situation will not occur again in a new subdivision.
Atty. Auffredou stated that this action and does not have to be reviewed in SEQR. It probably does not have to be done but the Board can always choose to do one. The Board discussed whether they wanted to do a SEQR. The Board reviewed SEQR.
Mr. Elms motioned to make a negative declaration and Mr. Finlayson seconded. Roll call vote resulted as follows:
Mr. Finlayson Yes
Mr. Elms Yes
Chairman Endal Yes
Mr. Finlayson asked if there had ever been any public comment. Board members recalled that Mr. Pratt had recently appeared, who had land in the subdivision. Another resident of Roslyn Ave. had expressed opposition to the variance the first time it came before the Board in August of 2005. Mr. Pratt had advocated approval.
Chairman Endal stated that Mr. Sweet knew about the problem when he bought the land, and therefore the difficulty was self-created. Mr. Sweet argued that Mr. Patricke had told him it was buildable. Mr. Patricke did not think he had discussed this lot with the applicant, but another one. Chairman Endal said that Mr. Patricke’s advice was not the only standard the buyer should refer to when making a purchase.
Ms. Coyle asked the Board to keep in mind that the previous owner, Ms. Purington, could easily have been the applicant. Mr. Sweet was asking for the same use she might have, a residential building permit. Chairman Endal argued the Board could have argued this same response to her as well, and not granted the variance. However all parties agreed that there were other criteria besides self-creation which applied to this appeal.
Chairman Endal stated that the Board’s big decision was whether they wanted to allow the use of easement to provide road frontage. That would be the only way the appeal would be granted.
Atty. Auffredou reminded the Board that this property would continue to be unusual for in other circumstances, such as joining the municipal water lines. He would like the record to show that Mr. Sweet understands that there may be complications that would still be Mr. Sweet’s responsibility, and Mr. Sweet agreed. Atty. Auffredou stated that he is still concerned about what happens to the easement if the road is improved, and that the Jacobie estate still has the right to put up a fence over the easement. It seems reasonable or almost certain that at some point the land will be sold and developed in the future, and the fate of easement will be in question.
Ms. Coyle responded that anyone can fence off their driveway, that is a property right. However, Atty. Auffredou is concerned that someone else, such as the Jacobie estate, will fence it. He recommended that the ZBA except out the possibility that there be a fence over the easement.
The public hearing was closed. Atty. Auffredou reminded the Board that since there were only three members present, they must vote unanimously in order for the Appeal to pass.
WHEREAS, The Board reviewed the criteria for granting an Area Variance and found as follows:
In addition, this lot was found to be exceptional because it has a corner intercepting two improved public streets, Violet Street and Flushing Avenue. The combination of the corner position and the use of the easement provides access for emergency services.
For purposes of this variance, the Board does not recognize the right of the Jacobie estate to put a fence on the easement. The Board further notes that if at any time the paper road called Flushing Ave. is improved, Mr. Sweet’s easement will be superseded. Mr. Elms motioned to approve Appeal No. 645 based on the above findings and the use of the 50ft. deeded easement to Flushing Avenue to provide adequate road frontage to grant a building permit. Mr. Finlayson seconded. A roll call vote resulted as follows:
Mr. Finlayson Yes
Mr. Elms Yes
Chairman Endal Yes
Motion carried and Appeal No. 645 was granted.
Mr. Mark Reynolds appeared before the Board to discuss his options with regard to his plans for a property on Route 197. He had been asked to try to sell a property so that he could establish a loss, for purposes of a Special Use Permit. In discussion with prospective buyers, he discovered he might recoup his investment if he could subdivide the lot and sell two parcels. He has generous road frontage, but not enough to make two perfectly conforming lots. The zoning requirement is 125 feet, and the lot can not be subdivided without creating at least one non-conforming lot. He has come to get the board’s opinion about subdividing the property into two individual building lots, so that he can recoup his investment.
Mr. Patricke told Mr. Reynolds that subdivisions get 7 years per the town for conforming lots, but that any new subdivision within it, especially with non-conforming lots, would require a submission to the Health Department. The applicant could make two non-conforming lots, or one conforming and one non-conforming. However since this is already in an approved subdivision, it would have to go to the Health Department. This was originally a very large subdivision and it not be amended without the Health Department due to water and sewer concerns. He felt it would not be a problematic change but an additional step the applicant should be aware of.
The Board reminded the applicant of the criteria for granting an area variance, such as benefit to the applicant vs. the neighborhood, self-created hardship and substantiality. The applicant asked about preference for one or two non-conforming lots. Mr. Patricke’s opinion was that two equal but substandard lots would be better for building, though building permits were not guaranteed. Mr. Patricke urged him to talk to the Health Department. The seller’s intention would be to sell to a builder who would put up a single family home. Mr. Patricke also reminded him that there were deed restrictions in the subdivision that he ought to be mindful of. Mr. Gerald Bouchard, who owns property in the subdivision, said that there might be a minimum building size of 1500sq.ft. He and did not speak for everyone in the subdivision but felt that this was a good alternative to the commercial use Mr. Reynolds had originally proposed.
The meeting was adjourned at 9:56 p.m. and the next meeting of the Zoning Board of Appeals was scheduled for April 26, 2006.
Respectfully submitted,
Tricia S. Andrews