Zoning Board of Appeals December 17, 2009 Minutes

Chairman Pete Welker opened the meeting at 7:00pm. Members of the Zoning Board of Appeals in attendance by role call were:

Chairman – Pete Welker - present

Vice Chairman – Ken Coirin - present

Frank Malagisi – present

Doug Purcell – present

Robert Kane – absent

Alternate Member - Janice Corr – present

Others in attendance: Richard Fink, Mike Hill Attorney for Richard & Kathy Fink, Tim Mitchell – Mr. Finks Engineer, and Mike Manning.

Mr. Welker asked if there are any additions or corrections of the previous hearing minutes. Hearing none. Mr. Welker asked for a motion to accept the minutes as written. Ken Coirin made the motion and Doug Purcell 2^nd the motion. All Zoning Board members agreed.

Mr. Walker noted that this application has been resubmitted to the Caroga Zoning Board with revisions due to the Adirondack Park Agency reversal determination of Z2009-05 dated July 21, 2009.

Before the public session of the meeting was opened Chairman Welker announced that he was going to step aside and turn the meeting over the Vice Chairman Ken Coirin. Janice Corr the alternate was then seated on the board for the hearing.

Mr. Coirin advised that the Town of Caroga Board of Appeals was meeting to hear a zoning variance application. The hearings are done in parts. The first part is a public session to hear from the applicant. Secondly the board will hear from anyone else who wishes to speak about the application, and then in the third part of the meeting the board will hear any correspondence received. The next part is a session when the board discusses the application

Vice Chairman Coirin opened the public session of the Zoning Board of Appeals meeting to hear application Number Z2009-11 Owner: Richard & Kathy Fink of 3030 Pecan Grove Lane Prosper TX 75078 of the property located at: 382 South Shore Trail Caroga Lake N Y 12032

and identified as parcel # 52.18-1-29.11 for a variance to the Town of Caroga Zoning Ordinance which is in violation of Article 4 Section 4.050 of said code [LF 2.5] which sets side yard setback at 20’. Front yard setback is set at 25’. Rear yard setback is set at 20’. Maximum lot coverage at 10%. and Article 7 Section 7.021 (2) which reads; The minimum setback of all principal buildings and accessory structures in excess of 100 square feet, other than docks and boathouses, from the mean high-water mark shall be 75 feet in Lakefront Residential 2.5 areas.

Shoreline and side yard setbacks are at issue. Owner Desires to: construct a Single Family Dwelling.

Mr. Coirin asked if there was anyone to speak on the application. Mr. Fink asked if everyone received a copy of the application from the town clerk. He asked that this be so stated in the minutes. The board responded that they had. He assumed that everyone has read it and is familiar with it. (At this point those in attendance were asked to identify themselves)

Mr. Fink stated that back in June it was discussed whether or not the side lot variance was required. It was determined at that time that the side lot variance was not an issue. “We were not in violation of the side lot variance. Tim had that discussion with Mike Heberer and Mike agreed at that time that the side lot issue was not a point of the meeting.”

Mr. Fink stated that we are here for the area variance. He thanked the board for hearing the case this evening. “As you know this application was approved by you in June, overturned by the APA in July. They stated that I did not provide a sufficient enough record of the case in order for the variance to be upheld. Specifically I did not document why the variance was the minimum necessary. What practical difficulties I faced on the site, and what impacts to neighboring properties and the environment would result if the variance was rejected. Tonight I hope to provide you with an expanded and well documented application so that you can affirm the variance you granted in June and that the APA will uphold the decision.” “As a matter of public record in 2009 the APA had 99 variances referred to them for review from around the park. Forty of those involved variances within the lakefront set back area such as the case you are hearing tonight. Of those forty cases only six have been overturned. Please note that we are reducing the size of the proposed structure from our original application and moving the structure further from the lake shoreline. We are reducing the size of the variance requested and minimizing any impact to the surrounding properties and the environment.”

The practical difficulties he faces involve the area under the existing structure, which has been excavated to a slope – just below grade, about 1200 sq ft. This would create an unsightly void from the property for all to see from the lake. Erosion issues would arise if the area were attempted to be filled. Mr. Fink stated that the area couldn’t support new tree growth due to the twelve-inch depth of the fill area. His proposal is to overlay the new structure over the exposed bedrock and make it level. If the variance were not granted he would be required to build the new structure 75 ft from the lake. A significant number of trees would need to be removed – about 24 from the lakefront lot in order to build the new structure. “This would devastate this lot visually and create an eyesore compared to properties around me. Granting the variance as proposed would require the removal of only two mature trees. This would allow the project to fit in aesthetically with others in the area.

Minimum Variance: Mr. Fink states that the existing house is 17 ft from the lake in June the ZBA granted him a variance to rebuild the structure at that location. After the APA rejection he discussed whether it would be possible to move the new structure further from the lake. He believes he can move the new structure back to 28 ft from the lake and still avoid the exposed bedrock environmental issue. This would avoid significant tree removal, and lot devastation crated by moving the structure further back. “We discussed whether it would be possible to reduce the footprint of the proposed structure and still provide the needed space for our extended family. We believe we can reduce the footprint by 122 sq ft and still meet our goals.” The new structure will be smaller in size than the project approved in 2008 to Mr. Fiedler (to the east) and smaller than the Egan property to the west.

Discussion Criteria: Mr. Fink states; “In order to grant the variance the ZBA must consider various criteria such as impact to the neighboring properties and the environment. “ We have attempted to mitigate or eliminate any impacts that may result from this project. By contrast if the variance is denied a significant impacts will be created.”

At this time Mr. Fink asked the board for their support of the application.

Mr. Coirin then asked for any comments from the public. Mr. Hill spoke on behalf of Rick & Kathy. He believes Rick had all the essential points and he thanked the board for reviewing the application again. “We think it is unfortunate that the APA reversed the first approval that was granted. As Rick said we’ve modified the project so that now it is a better project and there is less of a variance that is needed. So it’s improved in that respect hopefully it will be easier for you to approve the second time around. Rick called our firm after he got the reversal from the APA.” The firm is based out of Glens Falls and he states that he works for 12 different municipalities – Towns and Villages. He represents those towns Zoning Boards and Planning Boards. They have had quite a bit of interaction with the Adirondack Park Agency (APA). In another meeting he attended this week he asked the secretary how many ZBA shoreline setback variance had been referred to the APA (from that town) in 2009 and how many had been overturned. She responded 10 applications 0 reversed. “The ZBA there and the applicants did a good job in providing the APA with what they wanted to see.” They hoped to do the same thing.

There were a couple of minor procedural things that Mr. Hill wanted to offer suggestions on for the boards consideration. They have a pretty good idea of what the APA looks for in terms of the board’s actions/ procedure in regards to criteria. There is town code criteria and the APA has a criteria, which is very similar but slightly different. “The APA always likes to see a local ZBA – after they’ve reviewed an application under their own town code, they like to see some evidence in the record that the ZBA gave a little bit of consideration to the APA’s own criteria.”

Mr. Fink laid out all the criteria beginning on page 11 of his application. He asked that the board put on the record this type of discussion. He is happy to answer any questions the board may have on the application or on the procedure.

Mr. Fink noted that in his application he enclosed a cover letter to Mr. Welker. He wanted to make sure the other board members received this information. They did receive the information.

Mr. Hill asked the Chairman if when the board discusses the criteria he would be happy to hit the highpoints of why they believe the application meets all the criteria. Mr. Coirin thanked him but indicated that is a part of the meeting that is “closed.” [meaning silent from those in attendance]

Mr. Coirin asked if there was any correspondence. The Clerk of the board did place a letter dated December 15, 2009 from Mr. Egan on the table. In the letter it states that as neighbors of Richard and Kathy Fink, that Egan Canada Lake Sales, LP and Egan Family Partnership have no objections to (the) variance being granted.

With no other comments Mr. Coirin closed the public session of the hearing and went into open session for discussion.

Mr. Coirin had a few questions. In the letter it says that the APA’s reaction is that the proposal would be difficult to reverse. Who stated that? Mr. Hill responded Brian Grisi. He “is not the type of guy who’s going to say we guarantee that if this comes up again that its not going to get reversed. He would not go out on a limb like that.” The best he can say is “if you get this up here a second time to us it’s going to be difficult for us to reverse.” This was said based on a review by several staff members up there including people on the legal staff.

This is based on the revised application with the additional information – Mr. Purcell stated.

Mrs. Corr wanted to get the sideline setback clarified. At the earlier meeting it was decided that it was no longer an issue. She is confused by the fact that the code enforcement officer denial notice still lists one of the basis for the denial is that the 20 ft side yard setback is not being met. If you look at the plans it looks like it is 17ft.

Mr. Mitchell responded that the lot was a preexisting nonconforming and there was an adjustment made by the code officer based on a percentage of the size of the lot, which would alleviate the side yard setback issue. She still questioned why Mr. Heberer did not correct the paperwork.

Mr. Malagisi remembered the conversation with the Code Officer on this issue. Mrs. Corr was not at the previous meeting. The board was all in agreement at that meeting that the side lot line was not an issue. Mrs. Corr just wanted a clarification because it should not have been on the new application.

Mr. Malagisi noted there was no correspondence against any of the sideline issues. Mrs. Corr noted that the side yard setback on the Egan side was being met.

Mr. Malagisi made a motion to accept the sidelines as presented. Vice Chairman Coirin stated that could be put in the motion for the entire application.

Mrs. Corr would be concerned if it truly was an issue with new construction – what reason there was for not being able to meet a side yard setback. Given that Mike Heberer said it was not an issue – and he is not here to defend it….

Mr. Malagisi noted, “We are going from 17 ft we are going to come back to 28 ft.” Mr. Coirin noted that the square footage is being reduced as well. Mrs. Corr stated the exposed rock ledge is only underneath the existing building? Mr. Coirin noted it would also be covered by the new building.

Mr. Malagisi stated that when he went on site he thought the bedrock was the best spot to rebuild. He noted the application was fairly environmentally friendly toward this project.

Mrs. Corr asked if the board were to approve this proposal there would be commitment to cut down only the two trees and to plant the other trees as stated in the application that he would do.

That would be considered conditions of the application.

Mr. Coirin then stated to the board members that they would review the five criteria for application Z2009-11 that are from the Town of Caroga Zoning Ordinance

Mr. Coirin advised that the Zoning Board Appeals in granting the minimum variance that 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.

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 this variance.

All Board members replied no.

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

Mr. Coirin and all board members did not believe so.

3. Whether the requested area variance is substantial.

Mr. Purcell replied that they have taken steps to reduce it from the original application. He did not think it was substantial. Mr. Coirin and Mr. Malagisi voiced agreement.

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

Mr. Coirin responded, “I don’t believe so.” Mr. Malagisi & Mr. Purcell agreed

5. Whether the alleged difficulty was self-created, which consideration shall be relevant to the decision of the board of appeals, but shall not necessarily preclude the granting of the area variance.

All board members agreed no. Vice Chairman Coirin noted it was “an existing…situation that the original building was there, and dealt with at that time.”

Mr. Coirin asked for a motion to vote. Mr. Purcell made a motion to grant the variance request application Z2009-11 as submitted and Mr. Malagisi 2nd the motion.

Mr. Hill – “Before you vote thank you for going through your criteria. If I could just suggest that perhaps you look at page 11 of our application as there are a couple of other considerations. One being whether it is the minimum variance necessary. And the other, whether it’s going to impose any conditions over and above the conditions that we have already stated in our application.”

Vice Chairman Coirin then asked the board if this was “the minimum variance necessary to achieve the benefit. Is this the minimum variance we can grant to allow the construction?”

Mr. Purcell responded that he felt they provided sufficient documentation. That the additional distance they have taken the structure back to the 28 ft is the bare minimum they can do and accomplish what they are looking to… as well as reducing the footprint too.

Vice Chairman Coirin asked if there were any conditions to be imposed on granting this variance. Mr. Purcell stated that the concerns of Mrs. Corr be on record – the landscaping, and the discussion on the side yard setback issue being resolved at the previous meeting, deal with all of the conditions we would want to cover. On that basis he wishes to continue the motion to approve.

Mr. Coirin stated that the Zoning Board of Appeals would now vote. A yes vote would approve the application and a no vote would deny the application.

A roll call vote was conducted:

Mr. Malagisi – yes

Mr. Purcell - yes

Janice Corr – yes

Mr. Coirin - yes

Vice Chairman Coirin stated that application Z2009-11 for a variance was approved by the Town of Caroga Zoning Board of Appeals. It goes to the APA for their review and final decision. The APA has thirty (30) days upon receipt of the application paperwork to respond with their decision for approval or denial. The applicants were advised to contact the Code Enforcement Officer for the APA’s decision.

Mr. Coirin asked for a motion to adjourn at 7:40PM. Mr. Malagisi made the motion and Mr. Purcell 2^nd the motion.

Respectfully Submitted

Linda M. Gilbert

Town of Caroga Zoning Board of Appeals Clerk

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