Zoning Board Agendas and Minutes

MINUTES OF THE COHOES ZONING BOARD OF APPEALS HELD IN THE COMMON COUNCIL CHAMBERS OF COHOES CITY HALL ON WEDNESDAY, SEPTEMBER 28, 2016 MEMBERS PRESENT: Mr. Mark Cotch Mr. Justin Gregory Mr. Michael Briggs Mr. Gary Sawyer Ms. Theresa Thibodeau, Chairman ABSENT: Mrs. Joyce Baranski, Vice-Chairman ALSO PRESENT: Mrs. Melissa Cherubino, Director of Building and Planning CONSIDERATION OF THE MINUTES FROM AUGUST 24, 2016. Chairman Thibodeau called the meeting to order at 6:30 pm. The Chairman asked the recording secretary to take attendance. Member Cotch moved to approve the minutes of August 24, 2016. Member Gregory seconded the motion, roll call was taken and the motion passed unanimously. YES NO ABSTAIN Michael Briggs X Joyce Baranski ABSENT Mark Cotch X Gary Sawyer X Theresa Thibodeau X Justin Gregory X CONSIDERATION OF AN AREA VARIANCE FROM SETBACK REQUIREMENTS FOR A SHED AT 163 MASTEN AVENUE Kathryne Gutto requested an area variance from the rear setback to install a pre-made 8X14 shed 3’ from the rear property line. The Zoning Code requires a 10’ rear setback. The rear property line abuts a bermed paper alley overgrown with shrubbery. The paper alley is unbuildable yet creates a considerable setback from the next residential property. Ms. Gutto explained that installing the shed 10’ from the rear would place the shed in the center of the yard. A neighbor installed a shed the same distance from the rear property line in 2015. The proposal does not interfere with any property rights or access. Finally, since the shed meets the required side setbacks at 12’ each it does not affect the neighbors. As a result, Member Briggs moved to approve the area variance. Member Gregory seconded the motion which passed four to one with one abstention resulting from recusal. YES NO ABSTAIN Michael Briggs X Joyce Baranski ABSENT \\cohoes.local\CoC-Data\Users\mashline-heil\Boards, Commissions, & Agencies\ZBA\ZBA\minutes\ZBA Minutes 2016\ZBA Minutes 9.28.2016.doc Mark Cotch X Gary Sawyer X Theresa Thibodeau ABSTAIN Justin Gregory X CONSIDERATION OF AN AREA VARIANCE FROM SIDE SETBACKS FOR A SCREEN HOUSE AT 30 DEVLIN STREET Veronica Mero owns a single family home at 30 Devlin Street where she has had a vinyl screen house 1’ from the side property line for 20 years. The neighbors’ existing trees damaged the vinyl. Therefore the applicant would like to replace that screen house with a wood structure. Chairman Thibodeau commented that the structure is similar to other accessory buildings in the neighborhood. The yard is 50’ wide and a garage sits in the opposite corner. The screen house is 1.5’ larger than the previous screen house. Therefore the proposed structure would not meet setbacks unless it was moved next to the garage or to the center of the yard. As a result, Chairman Thibodeau moved to approve the area variance. Member Sawyer seconded the motion which passed unanimously. YES NO ABSTAIN Michael Briggs X Joyce Baranski ABSENT Mark Cotch X Gary Sawyer X Theresa Thibodeau X Justin Gregory X CONSIDERATION OF AN AREA VARIANCE FOR FENCING AT 43 DAVID DRIVE Attorney Eugene Grenz represented the Elinskis’ request to keep three 8x8 cedar fence panels installed 1’ from the side property line at 43 David Drive. The proposal was approved in 2014 which triggered a rehearing request that the ZBA denied. Subsequently an Article 78 was filed, resulting in a vacated variance based on a notice defect. The court ordered the ZBA to conduct a new consideration of the matter. Mr. Grenz seeks the area variance from fence height restrictions. The Cohoes Zoning Code §285-59D restricts fence height to 6’. Any fencing higher than the 6’ maximum must be set back that many feet from the property line and undergo planning board consideration for approval. Mr. Grenz reiterated the former approval which passed four to one abstention. He seeks permanent approval, pointing out that the installation was inspected and approved by code enforcement. He avers that the fence does not alter the neighborhood character or harm the health and safety. The fence was installed to assure privacy. \\cohoes.local\CoC-Data\Users\mashline-heil\Boards, Commissions, & Agencies\ZBA\ZBA\minutes\ZBA Minutes 2016\ZBA Minutes 9.28.2016.doc Attorneys Marina and Henry Glavin represented Laurie Kmiec. The Glavins object to the fencing since the request fails to meet the State standard for granting an area variance. In the original request, the applicants requested the variance for privacy because plants would not grow at that location. The Glavins referred to the installation as a “spite fence,” reading prior meeting minutes in which the Elinskis expressed a need for privacy from the neighbor. The fact that only three panels were installed illustrates the Elinski’s intent to block the Kmiec’s view. Moreover, Ms. Glavin points out that the Elinskis’ concern was self-created as the neighbors’ home and pool were constructed prior to when applicants purchased their home at 43 David Drive. In addition, the shrubs growing adjacent to the fence provide an alternative method of achieving privacy without the need for a variance. Ms. Glavin added that the Elinskis did not keep up the fence as discussed in the original variance request. In fact it was leaning until Siena Fence Company was hired to rectify it on September 26th 2016 as evidenced by a proposal submitted by the Elinskis. Mr. Kmiec confirmed that the fence was secured by Siena Fence about a week ago. However, since this is an enforcement issue, not a point of discussion for the ZBA to determine grant of a variance, the Board set aside the item. Next Ms. Glavin averred that the Board failed to adequately discuss the public health, safety or welfare regarding the fence. Furthermore, approving the fence would create a precedent that would bind the Board to approve other similarly situated fence requests. A neighboring couple in attendance expressed concern that they would not want a similar fence in their own backyard. Ms. Glavin added that the fence looks out of place like a billboard. She produced a letter from a realtor describing the fence as out of place with the one-story homes. The same realtor posited that the fence devalues the property for resale. Chairman Thibodeau rejected the realtor’s letter as opinion and inconclusive. Finally, Ms. Glavin claimed that the wood material is unusual for the neighborhood. She described vinyl and chain link fencing as the typical material used in the neighborhood. The Board rejected the argument as wood is a standard fencing material. Mrs. Elinski rebutted that the curve in the road creates a clear view into her backyard. Combined with the pool and deck the neighbor is able to watch the Elinskis’ every move in the backyard. She further claims that 6’ fencing would not block that view. Chairman Thibodeau rejected the argument as nearly every residential property with a backyard creates a viewshed into neighbors’ backyards. Mrs. Elinski then described that she and her husband followed the process for obtaining permission to install the fence. In fact, Code Enforcement inspected and passed the installation. In response the neighbor sent a slanderous letter to the neighbors regarding the Elinski’s fencing. Notably, the installation was made in reliance of the originally granted variance. However, since the court order nullified the original variance this constitutes a new application. \\cohoes.local\CoC-Data\Users\mashline-heil\Boards, Commissions, & Agencies\ZBA\ZBA\minutes\ZBA Minutes 2016\ZBA Minutes 9.28.2016.doc Mrs. Elinski countered the Glavins by pointing out that the fence does not impair public safety or pose a health hazard. The fence is not an anomaly in the neighborhood. And although some plants grew the two smaller plants were replacements as the location does not support growth. Board members asked if the Glavins’ client would consider a compromise. However, since Ms. Kmiec and her attorneys offered several compromises at the time, they are no longer willing to negotiate. In fact, a survey shows that the fence is partially installed on Ms. Kmiec’s property for which the attorneys intended to enforce removal as well. Board members concurred that the fence adversely impacts the neighborhood. Although the realtor’s opinion is discounted, the height is normally reserved for creating a buffer between incongruent uses or unusual physical terrain. Instead this appeared to be a self-created circumstance as the neighboring home, deck and pool were constructed prior to the applicants’ purchase of 43 David Drive. Board members found that the bushes had grown over 6’ tall and could become another means of achieving privacy. Therefore, the Board did not want to set a precedent of settling neighbor disputes by approving what is commonly referred to as a “spite fence.” As a result, Chairman Thibodeau moved to deny the application for an area variance from the fence height restriction. Member Sawyer seconded the motion which passed unanimously. Member Briggs moved to impose a 60 day timeframe for removal of the fence. Chairman Thibodeau seconded the motion which passed unanimously. YES NO ABSTAIN Michael Briggs X Joyce Baranski ABSENT Mark Cotch X Gary Sawyer X Theresa Thibodeau X Justin Gregory X Chairwoman Thibodeau moved to adjourn at 7:36 PM seconded by Member Cotch. The motion passed unanimously. \\cohoes.local\CoC-Data\Users\mashline-heil\Boards, Commissions, & Agencies\ZBA\ZBA\minutes\ZBA Minutes 2016\ZBA Minutes 9.28.2016.doc