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Zoning Board of Appeals August 6, 2020 Minutes

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

Members of the public in attendance: Daniel Sweet, Irene Sweet, Jean Moller, Jeff McGillis.

Chair Douglas Purcell said tonight’s meeting is being conducted as a tele-conference in compliance with NY governor Andrew Cuomo's Executive Order of March 12, 2020, number 202.1, and extended through September 4, 2020 with Executive Order 202.55.

Roll call:

Chair Douglas Purcell: here

Kenneth Coirin: here

Frank Malagisi: here

Kathleen Ellerby: here

John Byrnes: here

Chair Douglas Purcell said there are two applications. He said the applications would be in the order in which they were received. He said the first application was scheduled to be the reopening of Z2020-05 by Nathan Littauer Hospital for a property at 1840 State Highway10 and identified as parcel 68.9-3-2.5. He said the applicant was proposing to build a new 1,350 square foot “micro-clinic” to replace the clinic inside the town hall. He said the Use Variance was denied on August 6, 2020. He said that by action of the Town Board on August 12, 2020, the parcel was rezoned Caroga Hamlet. He said under Hamlet zoning, a health care facility is a permitted use by Site Plan Review. He said the issue was front set back. He said the application was seeking three feet variance from the standard of 25 feet. He said the Planning Board met August 19, 2020 for the Site Plan Review. He said that during the meeting the applicant proposed moving the building three feet back to be in compliance with the dimensional standards. He said the Site Plan Review was granted with the stipulation that the building be situated three feet farther from State Highway 10 to be in compliance with the 25 foot setback requirement. He said these actions make the application moot and there is no reason for the ZBA to proceed with the application. He said the ZBA would proceed with the second application, Z2020-06, by Irene Sweet, for a property located at 2304 State Highway 10 and identified as parcel 83.9-4-6 in LF-2.5 zoning district, APA Low Intensity. He said the property owner placed an unpermitted 10 foot by 12 foot gazebo in place of a previous unpermitted screened in structure. He said that at issue was the area coverage and side yard setback. He asked Irene Sweet to describe the project and justification for the requested variance.

Daniel Sweet said his wife is not supposed to be in direct sunlight due to medication. He said the property is forty feet wide. He said moving it in would obstruct the driveway.

Chair Douglas Purcell asked if there was anything else he wanted to add.

Daniel Sweet said they had one before and it fell apart. He said this one was built by the Amish and is movable.

Chair Douglas Purcell asked if there were any members of the audience who wanted to speak.

Jean Moller said she lives next to the applicant and the fence is between the two properties. She said she had no objections other than possible snow damage to the fence and wanted the Sweets to be responsible for any snow damage to the fence.

Daniel Sweet said he understood the snow damage issue and agreed.

Jean Moller asked if the variance was granted, would a replacement building in the same footprint need a new variance.

Chair Douglas Purcell said it would not.

Jeff McGillis said the applicants are making the property look nice.

Clerk James McMartin Long said there was no correspondence.

Chair Douglas Purcell closed the public portion at 7:10pm.

Chair Douglas Purcell asked Kenneth Coirin if he had any comments.

Kenneth Coirin asked if the applicant would be amenable to moving slightly away from the fence.

Jean Moller said she was comfortable with the structure where it is.

Jeff McGillis said he’s worried about snow moving between the structure and the fence if it is moved.

The applicant and neighbors discussed snow issues.

Chair Douglas Purcell called on Frank Malagisi.

Frank Malagisi asked if there was a building permit.

The answer was no.

Frank Malagisi asked if there was a building permit for the one that was replaced.

The answer was no.

Frank Malagisi asked about the front porch.

Daniel Sweet said the front porch is eight foot by eight foot.

Frank Malagisi suggested putting a shade on that porch. He said his concern was about future owners.

Irene Sweet said if the gazebo has to be gone, so will we.

Frank Malagisi said he had no further questions.

Kathleen Ellerby said there was a porch, open deck, and a covered porch. She asked which was in the front.

Irene Sweet said there was a porch off the front door.

Daniel Sweet said there’s just a flat deck off the front of the house.

Kathleen Ellerby asked if the deck could be covered.

Daniel Sweet said the roof would have to be opened up to have the pitch for the snow.

Irene Sweet said she would have loved to have had that.

Kathleen Ellerby said she was asking because the applicants were so far over the area coverage for the property.

John Byrnes is OK with the gazebo because the neighbors are OK with it.

Chair Douglas Purcell said all that has been submitted is a drawing. He asked when was it last surveyed.

Irene Sweet said she did not survey it when she bought it.

Jean Moller said when the fence was installed, perhaps fourteen years ago, it was re-surveyed, with a six inches towards Jean Moller’s property.

Chair Douglas Purcell is: was the measurement 18 inches from the property line or 18 inches from the fence. He said his second question, in the worksheet it says you have an uncovered deck in the front, but a deck that is covered in the back.

Irene Sweet says she wants to see people.

Chair Douglas Purcell said that the applicants had said the justification was to keep out of the sun.

Chair Douglas Purcell noted that the coverage would go from 12.8% to 14.4%, but all the coverage is on the front end of the property, which makes it very congested. He asked why wasn’t there any thought given to putting the gazebo in the back yard. He said it could be stick built.

Irene Sweet said she didn’t think of that.

Chair Douglas Purcell asked if she had been leaving the prior structure up year-around.

Irene Sweet said she had until recent years, at which time she took the top off.

Irene Sweet said when she goes around Caroga Lake she sees smaller properties with big sheds.

Chair Douglas Purcell said those may have existed prior to zoning going into effect. He reiterated that the coverage is going from 12.8 percent to 14.4 percent. He said the existing nonconforming lot would have a relief of one-third on the side yard setback. He said the next step is the SEQR determination. He said this is a type-2 action, so the ZBA does not need to go further with the SEQR determination. He then went to the criteria for an area variance:

“1. 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;”

Kenneth Coirin said no.

Frank Malagisi said yes there is an adverse change to the property next door.

Kathleen Ellerby said snow going over the fence and collapsing the fence.

John Byrnes said no.

Chair Douglas Purcell agrees with Kathleen Ellerby and Frank Malagisi that the potential exists for a detriment to the neighbors fence, particularly since both the applicant and the neighbor have indicated that there is some mutual agreement between them that if there is damage to the fence that the applicant would be responsible. He said that as Frank Malagisi pointed out, it could present problems down the road if either party sells their property.

“2. Whether the benefit sought by the applicant can be achieved by some method, feasible for the applicant to pursue, other than an area variance;”

Kenneth Coirin said there seems to be room to move the gazebo to back yard.

Chair Douglas Purcell said there’s still the area coverage variance, but that would eliminate one of the items needing a variance.

Frank Malagisi asked where the septic was.

Irene Sweet said the rear.

Frank Malagisi there’s something they could do with the decking on the front porch.

Chair Douglas Purcell said that if the applicants did that, they wouldn’t need a variance either way.

Kathleen Ellerby said if a roof was out of the question for the front porch, she wondered about a retractable awning that they could remove in the winter time.

Chair Douglas Purcell confirmed that Kathleen Ellerby was saying there are other ways they could achieve this.

Kathleen Ellerby said yes.

John Byrnes no, he didn’t see other ways to achieve this.

Chair Douglas Purcell said he was in agreement with Kathleen Ellerby and Frank Malagisi that there was something the applicant could do with the uncovered porch in the front.

“3. Whether the requested area variance is substantial;”

Kenneth Coirin said it was very substantial.

Frank Malagisi said yes, substantial.

Kathleen Ellerby said yes.

John Byrnes said no, he didn’t think two percentage points was substantial.

Chair Douglas Purcell said he agreed that the two percentage points wasn’t that substantial but the side yard setback is very substantial.

“4. Whether the proposed variance will have an adverse effect or impact on the physical or environmental conditions in the neighborhood or district;”

Kenneth Coirin said yes, snow load. He said there’s agreement between the current neighbor, but that’s not to say that would happen with a future neighbor.

Frank Malagisi agreed with Kenneth Coirin.

Kathleen Ellerby also agreed.

John Byrnes said no.

Chair Douglas agreed.

“5. 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.”

Kenneth Coirin said yes.

Frank Malagisi said yes.

Kathleen Ellerby said yes.

John Byrnes said yes.

Chair Douglas Purcell said it was self created because they did all this and didn’t apply for a permit.

Chair Douglas Purcell read from the Zoning Ordinance: “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.”

Motion: John Byrnes moved to grant the application. Kenneth Coirin seconded the motion.

Roll call vote:

Chair Douglas Purcell: No, side yard setback is way too close and there were other options available..

Kenneth Coirin: No, same reasons side yard setback and there are other avenues they can explore.

Frank Malagisi: no.

Kathleen Ellerby: no

John Byrnes: yes

Chair Douglas Purcell said the variance has been denied.

Chair Douglas Purcell said there is another area variance. He set Thursday September 3, 2020 at 7:00 PM.

Kenneth Coirin, Frank Malagisi, John Byrnes all want packets mailed.

Motion: Kenneth Coirin moved to adjourn. Kathy Ellerby seconded the motion.

The meeting adjourned at 7:37 pm.

Respectfully submitted
James McMartin Long
Town of Caroga Town Board Member,
Zoning Board of Appeals Clerk/Secretary

Copyright © James McMartin Long 2017-2021