Zoning Board of Appeals October 24, 2019 Minutes

Members of the Zoning Board of Appeals in attendance by roll call were:

Chairperson Douglas Purcell — here
Kenneth Coirin — here
Frank Malagisi — absent
Kathleen Ellerby — here
John Byrnes — absent

Members of the public in attendance: Michael F. Geraghty, Jr., Kathryn L. Geraghty, Donald Elmendorf, Christian Manns.

Chair Douglas Purcell opened the public hearing at 7:00pm.

Chair Douglas Purcell asked if there were any corrections or additions to the minutes of the October 10, 2019 meeting. There were none. He then asked if there was motion to waive the reading and accept the minutes as published.

Kenneth Coirin moved to waive the reading and accept the minutes as published. Kathleen Ellerby seconded the motion. All were in favor.

Application Number #Z2019-06

Owner Michael F. Geraghty, PO Box 8, Caroga Lake, NY 12032, of the parcel located at 118 West Stoner Lake Road, Town of Caroga and identified as parcel SBL#24.6-2-56, zoning district LF-1 - Lakefront 1 Acre, for a variance of to the Town of Caroga Zoning Ordinance

The property owner proposes to build a garage that is 24 feet wide by 40 feet long. Article 4: District Regulations, Section III: Use Table of the Zoning Ordinance lists the uses permitted by right, the uses permitted by site plan review and dimensional requirements for each zoning district established by this section of this ordinance. Article 4, Section IV: Dimensional Standards specifies LF-1 zoning districts have building setbacks of 25 feet for the front and 20 feet from the rear and side lines of the property, 75 feet from the waterfront and 25% lot coverage. Article 9, section VI, subsection A allows one third reduction of all setbacks. The property owner would need a variance for the rear setback which at minimum would be 13 feet. The proposed garage would be 8 feet from the rear property line. A variance of 5 feet for the rear line setback would be required prior to review of any building plans. If the variance is granted by the Zoning Board of Appeals and not reversed by the Adirondack Park Agency (APA), building plans for the garage would then be reviewed and a determination would be made about whether to issue a building permit.

Chair Douglas Purcell opened the public section of the meeting and asked the applicant to speak.

Michael Geraghty said during the course of taking over the property, they've tried to improve it. They have accumulated equipment. They need a place to store the equipment. They need a work area for the equipment. The equipment needs to be covered.

Chair Douglas Purcell asked if there were any members of the public with comments.

Donald Elmendorf said he was a nearby property owner. He is full opposition to the proposal. In order to grant a variance, the applicant needs to express a hardship. The decision, in order to avoid an Article 78, has to not be arbitrary and capricious. It has to be supported by substantial evidence. Donald Elmendorf read from a prepared statement:

• This applicant cannot demonstrate that construction of this building of this size and magnitude is a need which the zoning regulations prevent. Thus, the Applicant cannot demonstrate and provide substantial evidence of a Hardship for granting this Variance Request.

• This Applicant cannot substantively demonstrate or provide substantial evidence that the requested use variance, if granted, will not alter the essential character of the neighborhood. In fact this structure of this size, magnitude and volume would significantly alter the Character of the Neighborhood — which is small homes and camps that have existed for nearly 100 years as we see them today.

• In as much as this structure would substantively alter the essential character of the neighborhood, this triggers a positive declaration for an EIS as required per SEQR prior to consideration of the Applicant’s request.

• The Granting of the requested use variance is not hardship, but is a self-created condition. As such the granting of the requested variance is not justified and should not be considered.

• The Applicant has an opportunity to reduce the size of the building. The building size is a self-created hardship, not a hardship caused by the regulations. In turn, no Zoning Variance is justified.

• The Applicant has an opportunity to move the building to another part of the parcel. This is a self-created hardship, not a hardship caused by the regulations. In turn, no Zoning Variance is justified.

• The Applicant cannot demonstrate that the physical surrounding, shape and topographical conditions of the property presents a particular hardship to the applicant, not a mere inconvenience. Again, Zoning Variances cannot be granted on the basis if mere inconvenience or a self-created condition — which this Applicant’s request is.

• The Applicant proposing to construct a garage of this magnitude is out of character to the neighborhood and community thus is not a need of the Applicant. The Applicant has not clearly identified a hardship reason requiring construction of this proposed large garage.

• This request for Variance will substantially change the character of the neighborhood. Again, the present and historical character is forest community small seasonal and scattered permanent homes. None of which have large commercial sized garages or structures. In turn, no Zoning Variance is justified as this is a self-created condition and presents a significant potential, as defined in State Laws and SEQR, to permanently change the character and environment of this neighborhood.

• The Applicant has not clearly identified a need or hardship for construction of this proposed large garage. The zoning and State Environmental Codes and Laws do not allow segmentation or staging of a project with one initial character proposal with hidden agenda or self-promoting future intent for a different use or the conduct of commercial businesses. The Board and Town would have to secure a guarantee from the Applicant that the future intent of this structure will not be morphed or segmented into a commercial operation or housing a business not permitted by Zoning.

• NYS SEQR laws do not allow Applicants of a proposed action to segment a project or construction of buildings or facilities in such a manner that it circumvents SEQR, Zoning and building codes related occupation and use regulations as defined in those codes. In summary construction of this structure of this size and magnitude gives the appearance that the ultimate intended use is more than indoor parking for personal vehicles and appurtenant recreational equipment. Such a large structure which is just a skeleton structure for future modification or use transformation violates the intent of Zoning and Environmental Laws and Codes. The Town and Boards will have to secure a substantive guarantee from the Applicant accepting that no commercial uses or occupancies are ever to be acceptable for occupation of this structure, and determine at the time of granting a Variance, if granted, that the Applicant will at the applicant’s cost and time restore the use to that defined in the Zoning Regulations or Variance.

• The Applicant must demonstrate beyond a reasonable doubt that the conditions upon which the petition for variance relates would be applicable generally to other property within the same zoning district. This Applicant cannot demonstrate that any other location within this Town or nearby communities a this proposal of this magnitude has been or would be granted.

• This Board must consider that a Variance cannot be granted which can be challenged in court if the proposal is detrimental to the public welfare or injurious to other property or improvements in the neighborhood in which the property is located. This proposal would detrimental to the neighborhood and would be out of character with structures and activates in the neighborhood.

• The proposal has the potential to interfere with the common driveway that has been in place for nearly 100 years and shared with the property owners on West Lake. This would be injurious to those properties and use of those properties. That fact alone precludes consideration or granting of the Applicant’s Variance.

In a more subjective matter the Board that must be consider the Character, Historical Actions and Good will of this Applicant to the neighborhood and compliance with Local and State Laws and Codes. The applicant has demonstrated, and continues to demonstrate, a complete disregard for local and State codes and regulations. The Applicant has demonstrated that his character and will is to “ask for forgiveness rather than ask for permission” to modify or construct on his parcels. There is a historical evidence that the Application has willfully violated local and State Laws. This is not an individual that demonstrates consideration for neighbors, the neighborhood or the character of the neighborhood.

In summary, this Applicant’s proposal has no demonstrated, or substantive need or hardship that would safely allow the Board to grant a Variance. In fact, the above negatives preclude any further consideration by the Board.

Donald Elmendorf then handed out paper copies of his statement.

Michael Geraghty said Donald Elmendorf has had some speculative aspects to what he is suggesting, which is painting a picture. Michael Geraghty said, we're not contractors. His son works for a group that refurbishes stuff. He used to work for the state. He's not looking to put commercial equipment. He does have a backhoe. He's looking to store sleds in there. They both have bikes. He wants a place to put the equipment there. He has a zero radius mower. He did have an issue with the sand and the DEC, but he claimed that was a lack of understanding. He believed that by looking into that, he was within our rights. DEC came and said they were too close to a waterway. He claims he is being penalized for trying to make an improvement that he felt was within the regulations. Yes, he admitted, there was a penalty involved. He asked: should that have the ability to circumvent his rights. This isn't a summer camp. His son lives there. He doesn't believe he Donald Elmendorf has the right to speak for everybody. He's looking to be part of the community. He's looking to build an adequate size. It is a garage. He's not going to put a lift in to work on cars.

Christian Manns said the applicant had done a great job of cleaning up the area.

Kathryn Geraghty said the proposal uses Mohawk Valley Sheds.

Donald Elmendorf said his main objective is the legal viability.

Chair Douglas Purcell asked the secretary if there was any correspondence. There was none.

Chair Douglas Purcell closed the public session at 7:19 PM and entered the closed session for the board to ask questions of the applicants.

Chair Douglas Purcell asked Kathleen Ellerby if she had questions.

Kathleen Ellerby asked for clarification of the three parcels. Is this parcel number 2?

Chair Douglas Purcell confirmed the parcel.

Chair Douglas Purcell asked about the two structures that are already on there.

Michael Geraghty said they are sheds.

Chair Douglas Purcell asked if they were being taken down or moved.

Michael Geraghty said there's only going to be one structure. The others will be moved down by the boathouse.

Kathleen Ellerby asked how is the applicant going to situate the garage.

The board discussed the proposed garage orientation.

Chair Douglas Purcell discussed the allowed setback from the road.

Chair Douglas Purcell was there was a reason why the applicant went 23 feet from the road.

Kathryn Geraghty said that’s what they had been told.

Chair Douglas Purcell said, because the applicant has a nonconforming property, he is allowed two-thirds of the 25 foot setback. So, his setback could be as little as 16.5 feet. Then, 24 feet for his depth, he actually have enough room in the back for the setback. And, if he did that, he doesn't need the variance. This two-thirds allowance that’s in the current Zoning Ordinance is something the Code Officer and Chair Doug Purcell have discussed back in August. It says all setbacks on a nonconforming piece of property are allowed two-thirds of the setback. The applicant can go 16.5 from the road and he is allowed 13.2 feet from the back.

Kenneth Coirin and Chair Douglas Purcell both said, the applicant can relocate the garage and be in compliance with all the setbacks.

Chair Douglas Purcell said one of the questions he’s going to go through is whether the benefits sought by the applicants could be achieved by some method feasible other than an area variance: Yes, it can, by relocating the proposed garage. He advised the applicant to make sure he keeps away from the easement.

Michael Geraghty confirmed that he would resubmit a permit.

Chair Douglas Purcell said, that would change where the applicant was putting the building.

Chair Douglas Purcell announced that he would go through the criteria.

Chair Douglas Purcell said: the ZBA, in the granting of area variances, shall grant the minimum variance that it shall deem necessary and adequate and at the same time preserve and protect the character of the neighborhood and the health, safety and welfare of the community.

Whether an undesirable change will be produced in the character of the neighborhood or a detriment to nearby properties will be created by the granting of the area variance.
The Board said no.
Whether the benefit sought by the applicant can be achieved by some method, feasible for the applicant to pursue, other than an area variance.
The Board said yes.
Whether the requested area variance is substantial.
The Board said yes.
Whether the proposed variance will have an adverse effect or impact on the physical or environmental conditions in the neighborhood or district.
The Board said no.
Whether the alleged difficulty was self-created, which consideration shall be relevant to the decision of the ZBA, but shall not necessarily preclude the granting of the area variance.
The Board said no.

Kenneth Coirin moved to deny the application in anticipation that the applicant is going to re-situate the garage and not require the variance. Kathleen Ellerby seconded the motion.

Chair Douglas Purcell said a yes vote will deny the variance.

The secretary conducted a roll call vote.

Kathleen Ellerby: yes

Kenneth Coirin: yes

Chair Douglas Purcell: yes

The variance was denied.

Chair Douglas Purcell asked for a motion to adjourn.

Kenneth Coirin moved to adjourn. Kathleen Ellerby seconded the motion. All were in favor.

The meeting adjourned at 7:28 pm.

Respectfully submitted
James McMartin Long
Town of Caroga Deputy Supervisor,
acting as Zoning Board of Appeals Clerk
and Zoning Board of Appeals Secretary