Zoning Board of Appeals

CITY OF MIDDLETOWN ZONING BOARD OF APPEALS AGENDA JULY 15, 2026 7:00 PM COMMON COUNCIL CHAMBERS Meeting called by: Jim Burtis, Chairman Clerk: Martina Tu Members: Wendy Rodrigues, Marc Woody, Tracy Racine, Jim Burtis, Keith Hallock CALL TO ORDER PLEDGE OF ALLEGIANCE ROLL CALL APPROVAL OF MINUTES Accept the Minutes of April 15, 2026 NEW BUSINESS Request of Shiya Leibovitz for area variances for a proposed single-family dwelling located at 92 Linden Avenue, Middletown ADJOURNMENT  CITY OF MIDDLETOWN ZONING BOARD OF APPEALS MINUTES April 15, 2026 A meeting of the Zoning Board of Appeals was held in the Common Council Chambers, Second Floor, City Hall, 16 James Street, Middletown, New York on April 15, 2026 at 7:00 P.M., Jim Burtis presiding. Members Present: Tracy Racine, Keith Hallock, Marc Woody, Jim Burtis Members Absent: Wendy Rodrigues, Richard J. Croughan The Pledge of Allegiance was said. Motion to approve the December 17, 2025 minutes. Roll Call Ayes: Tracy Racine, Keith Hallock, Marc Woody, Jim Burtis Motion passed. Orange Terrace Properties, LLC Orange Terrace 6-month extension for area variances for a proposed (4) four-lot subdivision (3rd extension) Mr. Burtis: We have representative from Orange Terrace here this evening that's going to give us a brief update. Mr. Johnson: Good evening. Ernie Johnson from Fusco Engineering. What we're asking for is a six-month extension on 2-7 Orange Terrace. We've been in front of the Common Council a couple times. Their latest one when we got turned down was they had a request to try to cut down on an 11-foot retaining wall we had in the back of two of the four lots. Took us numerous times to figure out a way to grade this down, but we did get it down to a 4-foot retaining wall. We've submitted new plans to Martina to hopefully be on the next agenda, so we're asking for the extension so we can keep going and try to finish this job off. 04/15/2026 Page 1 Mr. Burtis: Okay. Thank you for the update, Ernie. Do any of the members of our Zoning Board of Appeals have questions of the applicant? Mark? Mr. Woody: I have one question. With regard to the extension, is it primarily because of the retaining wall, or is there any other factors or weather-wise or is it -- Mr. Johnson: Basically, the retaining wall was the Common Council's main one. They wanted to know -- they didn't like the idea of an 11. They thought it would be -- what am I'm trying to say -- the aesthetics would be bad for the neighborhood. So we've, you know, like we say, we've cut it down to 4 and changed the grading in the back, so it'll work out. It did take a lot of time because the Common Council also didn't want us taking out a lot of fill across that part. So it took a while, unfortunately for us and, you know, the person trying to get this through. But it's ready and like Martina has the copies. What we're waiting for is your approval on that, and then we can go to -- hopefully get on the next agenda for Common Council. Mr. Woody: Now, that retaining wall is adjacent to the cemetery. It comes in the back, I guess, of the complex. Mr. Johnson: Yeah. The cemetery sits on this side of the -- Mr. Woody: Correct. Mr. Johnson: -- at the end of the property. Mr. Woody: Correct. Mr. Johnson: The retaining wall faces more towards Mountain Avenue. Mr. Woody: Correct. Okay. Thank you. Mr. Johnson: Mm-hmm. Mr. Burtis: All right. Just doing one last canvas of our board members. Does anyone need any further information from the applicant to make a decision on the request for a six-month extension? No? Okay. Thank you. I’d like to thank the applicant for coming up, and we're in a spot where I'd 04/15/2026 Page 2 ask from our board for a motion to approve a six-month extension for 2-7 Orange Terrace application for the Zoning Board of Appeals. Motion to approve six-month extension for 2-7 Orange Terrace by Mr. Woody, seconded by Mr. Hallock. Roll Call Ayes: Tracy Racine, Keith Hallock, Marc Woody, Jim Burtis Motion passed. Motion to adjourn at 7:15 p.m. by Mr. Hallock, seconded by Mr. Racine. Roll Call Ayes: Keith Hallock, Tracy Racine, Marc Woody, Jim Burtis Motion passed. Respectfully Submitted, Diane Genender, Transcriptionist 04/15/2026 Page 3  3/12/26 92 Linden Ave. Middletown NY 10940 16 8 8 OR-2 X 92 Linden LLC 199 Lee Avenue, Suite 538 Brooklyn NY 11211 845-248-1760 Shiya Leibovitz 5 Kerestier Ct #402 Monroe New York 10950 845-248-1760 475-9(F)(1)(a) Front Yard 30' 11.4' 18.6' 475-9(E) Lot Area 5,000 s.f. 3,988 s.f. 1,088 s.f.  Shiya Leibovitz, Owner 3/12/26  N W E S N SA OH N SA UE OH EN SA N WV AV OH EN SA N LIN OH D N SA OH X N SA OH X X OH OH X SAN SAN X WV X SYMB DATE ISSUED FOR GRAPHIC SCALE 10 0 10 10 20 40 FUSCO ENGINEERING & LAND SURVEYING, D. P.C. ( IN FEET ) 1 inch = 10 ft. CONSULTING ENGINEERS 233 EAST MAIN ST. PHONE: (845) 344-5863 MIDDLETOWN, NY 10940 FAX (845) 956-5865 SITE PLAN FOR R 92 LINDEN AVENUE Know what's below. Callbefore you dig.  S S S S S S WATER AND SEWER SEPARATION DETAIL SEWER SERVICE LATERAL TYPICAL LOT LAYOUT CONCRETE SIDEWALK REPAIR DETAIL PIPE TRENCH DETAIL TRENCH RESTORATION FOR ROADWAY OPENING SYMB DATE ISSUED FOR FUSCO ENGINEERING & LAND SURVEYING, D. P.C. CONSULTING ENGINEERS 233 EAST MAIN ST. PHONE: (845) 344-5863 MIDDLETOWN, NY 10940 FAX (845) 956-5865 SITE PLAN FOR 92 LINDEN AVENUE R Know what's below. Callbefore you dig.  PERMANENT SEEDING MIXTURES: EROSION CONTROL MODERATE TO STEEP SLOPES & MAINTENANCE: LOW MAINTENANCE AREAS GENERAL RECREATION AREAS & LAWNS FLOW STABILIZED CONSTRUCTION ENTRANCE DETAIL FLOW FLOW Drain Hole Detail 3.5" 2" 6' 0'' 5" 6" 5' 5'' TRENCH DETAIL INSTALLATION WITHOUT TRENCHING 5' 0'' 5'' 4''Dia. Inlet 3'' 2' 11'' 2' 1'' 20'' Dia. Cover 5' 8'' Side View Top View SPECIFICATIONS PRECAST DRY WELLS SILT FENCE DETAILS Concrete Min. Strength: 4,000 psi at 28 days MODEL DW-3 (A)/ 370 GALLONS Reinforcement: #3 Rebar Air Entrainment: 5% Capacity = 370 gallons Weight = 1820 lbsWoodard's Concrete Products, Inc. Sidewall Area = 44 square feet 629 Lybolt Road, Bullville, NY 10915 (845) 361-3471 / Fax 361-1050 Load Rating: 300 psf (H20 available) Page 1D 5/20/02 www.woodardsconcrete.com SYMB DATE ISSUED FOR DRAIN AND SWALE DETAIL FUSCO ENGINEERING & LAND SURVEYING, D. P.C. CONSULTING ENGINEERS 233 EAST MAIN ST. PHONE: (845) 344-5863 MIDDLETOWN, NY 10940 FAX (845) 956-5865 SITE PLAN FOR 92 LINDEN AVENUE R Know what's below. Callbefore you dig. City of Middletown Zoning Board of Appeals 16 James Street Middletown, NY 10940 RE: Engineering Traffic Analysis Proposed Single-Family Dwelling Shiya Leibovitz 92 Linden Avenue City of Middletown Orange County, New York Section 16, Block 8, Lot 8 Our File #24-074B 1. Purpose This memorandum has been prepared to evaluate traffic and parking conditions associated with the proposed construction of a single-family dwelling at 92 Linden Avenue in the City of Middletown, Orange County, New York. This analysis is intended to supplement the application record and directly respond to concerns identified in the prior denial, specifically those related to neighborhood traffic conditions and on-street parking availability. As part of this evaluation, field traffic observations were conducted during typical weekday peak periods to document existing roadway conditions. Traffic counts were collected between 9:00 AM and 11:00 AM (morning period) and between 4:00 PM and 6:00 PM (afternoon period). During the morning peak period, a total of 83 vehicles were observed, including 18 commercial vehicles. During the afternoon peak period, a total of 143 vehicles were observed, including 16 commercial vehicles. Additionally, 12 vehicles were observed stopping within the block and parking during the afternoon peak period. The subject property is an existing lot (±3,988 square feet), and the proposal consists of a single-family detached residence with two off-street parking spaces located at the rear of the parcel. This report has been prepared in accordance with generally accepted traffic engineering practices and references data from the Institute of Transportation Engineers (ITE) Trip Generation Manual. 2. Existing and Proposed Land Use: The subject site is located within an established residential neighborhood characterized by a mix of single-family detached dwellings and two-family residences, small multi-family structures. This development pattern is typical of legacy neighborhoods within the City of Middletown and reflects a range of residential densities. The proposed project consists of one single-family dwelling, which represents the lowest intensity residential land use classification. A use that is less impactful than many permitted uses within residential zoning districts and that is fully consistent with the existing neighborhood character 233 East Main Street Middletown, NY 10940 (845)344-5863 importantly, the project does not include multiple dwelling units, mixed-use or commercial activity or any density increase beyond one household. 3. Site Access and Parking: The site plan depicts the proposed dwelling with two parking spaces in the rear portion of the property, providing on-site accommodation for resident vehicles. This is an important traffic and parking consideration because the project is designed to serve its parking demand internally rather than relying exclusively on curbside parking along Linden Avenue. Based on the plans provided, the parking supply is appropriate for a single-family residence. In practical terms, a single-family home typically generates demand associated with a limited number of household vehicles, and the provision of two off-street spaces is consistent with ordinary residential parking needs. Because the parking is located on the subject property, the proposal should not materially increase parking pressure on the public street system. 4. Existing Traffic Conditions (Field Observations) Traffic counts collected during peak periods indicate that Linden Avenue currently operates at relatively low traffic volumes consistent with a local residential street. • Morning Peak Hour: – 83 total vehicles observed – 18 commercial vehicles (approximately 22%) • Afternoon Peak Hour: – 143 total vehicles observed – 16 commercial vehicles (approximately 11%) – 12 vehicles observed stopping and parking within the block during the peak hour Engineering Interpretation: • The observed volumes are modest and well within the operational capacity of a local residential roadway. • The presence of commercial vehicles reflects normal service activity (e.g., deliveries, contractors) typical of residential neighborhoods. • The limited number of parking maneuvers observed (12 vehicles) indicates moderate but manageable on-street parking activity without evidence of abnormal congestion or circulation issues. 5. Traffic Effects From a traffic engineering standpoint, the proposed land use is among the lowest- intensity forms of residential development. A single-family dwelling generates only routine residential trip activity, generally limited to household members, guests, deliveries, and service vehicles. Unlike apartments, commercial uses, or multi-unit projects, the proposed development will not create concentrated peak-hour traffic volumes or frequent turnover of vehicles. The project narrative expressly notes that a single-family dwelling generates significantly less traffic and parking demand than many other permitted residential uses, and concludes that the project will not create parking impacts for the surrounding neighborhood. Given the scope of the proposal, the resulting traffic effect on Linden Avenue and adjacent local streets is expected to be de minimis. The additional vehicle trips associated with one dwelling would be minor in comparison with normal background traffic documented above. No off-site roadway improvements, 233 East Main Street Middletown, NY 10940 (845)344-5863 traffic control changes, or capacity enhancements appear warranted based on the scale of the proposed use. 6. Response to Denial-Letter Parking and Traffic Concerns The denial letter expressed concern that parking is already tight and that development of the lot could add hardship. In response, the following engineering points are relevant: 7. The proposal is for one single-family home only. The project does not introduce multiple dwelling units or any use that would create unusually high vehicle demand. 8. Two off-street parking spaces are provided on site. By locating parking at the rear of the property, the plan accommodates resident parking within the parcel and reduces reliance on public curb space. 9. Trip generation is inherently limited by the use itself. A single-family residence produces ordinary neighborhood traffic only and does not create operational issues typically associated with higher-density development. 10. Existing traffic data demonstrates available capacity. Observed peak-hour volumes (83 vehicles in the morning and 143 vehicles in the afternoon) confirm that the roadway is operating at low volumes relative to its capacity. 11. No unusual access or circulation condition is evident from the plan. The site plan presents a conventional residential arrangement with building, access, and parking organized to function as a standard detached dwelling. Based on these factors, the proposed project is not expected to create a significant adverse traffic or parking impact on the surrounding neighborhood. 7. Engineering Opinion It is my opinion, based on review of the submitted narrative, denial letter, site plan, and field traffic observations, that the proposed development at 92 Linden Avenue: • will generate only a minimal amount of new traffic consistent with normal single-family residential use; • provides adequate on-site parking through the two proposed rear parking spaces; should not materially worsen on-street parking conditions in the neighborhood; and does not warrant a detailed traffic impact study due to the very small scale and low-intensity nature of the project. 8. Zoning and Parking Considerations (Local Context) While specific zoning requirements are administered by the City of Middletown, it is typical for residential zoning districts to require: • Two (2) off-street parking spaces per single-family dwelling The proposed site plan provides: • Two (2) off-street parking spaces located on-site This configuration: • Meets typical zoning expectations • Aligns with standard residential parking demand • Reduces dependence on public curb space Engineering Interpretation Providing compliant on-site parking is a key mitigation measure in neighborhoods where on-street parking may already be utilized. The proposal is therefore responsive to local parking conditions rather than contributory to them. 233 East Main Street Middletown, NY 10940 (845)344-5863 9. Site Access and Circulation The site plan presents a conventional residential layout consisting of a single dwelling unit, rear-yard parking, standard access configuration There are no unusual access constraints, no atypical circulation patterns, no design features that would create conflict points or safety concerns All access movements are typical of a single-family residential use and are consistent with neighborhood conditions. 10. Traffic Generation Analysis ITE Trip Generation Data (Land Use Code 210 – Single-Family Detached Housing) Based on nationally accepted data: Average Daily Trips (ADT): ~9–10 trips per dwelling AM Peak Hour: ~0.7 trips PM Peak Hour: ~1.0 trip Projected Traffic for This Project Daily traffic generation: ~10 vehicle trips per day Peak hour traffic: approximately 1 trip (inbound or outbound) Engineering Significance: Traffic is distributed throughout the day, not concentrated • Peak activity equates to one vehicle movement during peak periods • This level of traffic is functionally negligible when compared to observed background volumes 11. Roadway Capacity and Operational Impact Linden Avenue functions as a local residential street, which typically serves low-speed, low-volume traffic, has capacity to accommodate hundreds to thousands of vehicles per day. The addition of approximately 10 trips per day. Represents: A negligible increase relative to observed peak-hour volumes (83–143 vehicles). A change that is not measurable in terms of level of service, delay, or safety. Conclusion on Traffic Operations The proposed development will not alter traffic flow, congestion levels, or roadway performance in any meaningful way. 12. Parking Demand and Utilization Typical Residential Parking Demand • 1.5–2.5 vehicles per household (industry standard range) • Stable, predictable usage with low turnover Project Parking Supply • Two (2) off-street spaces provided Impact Assessment • Resident parking demand will be fully accommodated on-site • On-street parking demand from the project will be minimal to negligible • Observed on-street parking activity (12 vehicles during the PM peak) reflects typical neighborhood conditions 233 East Main Street Middletown, NY 10940 (845)344-5863 Key Engineering Point Unlike higher-density housing or rental units, single-family dwellings: • Do not generate frequent parking turnover • Do not create cumulative parking demand spikes 13. Professional Engineering Opinion Based upon: • Review of the site plan and project narrative • Consideration of local roadway conditions and observed traffic volumes • Application of ITE Trip Generation data • Standard traffic engineering methodologies It is my professional opinion that the proposed development: • Will generate minimal traffic consistent with normal residential activity • Will not create a significant or measurable impact on traffic operations • Provides adequate on-site parking in accordance with typical zoning requirements • Will not materially exacerbate on-street parking conditions • Does not warrant preparation of a formal Traffic Impact Study (TIS) due to its limited scale Furthermore, from an engineering standpoint, there is no technical basis to conclude that the project would create a traffic or parking hardship within the neighborhood. 14. Conclusion The proposed project represents a minor and appropriate residential infill development within an established neighborhood in the City of Middletown. Key findings include: • Existing peak-hour traffic volumes are low (83 AM / 143 PM vehicles) • Observed parking activity is moderate and typical of residential conditions • Traffic generation from the project is extremely low (~10 trips/day) • Peak hour impact is negligible (~1 trip) • Two off-street parking spaces fully accommodate demand • No adverse impacts to traffic flow, safety, or parking are anticipated Accordingly, the proposed single-family dwelling at 92 Linden Avenue will not create a significant traffic, circulation, or parking impact on Linden Avenue or the surrounding area. Very Truly Yours, Alfred A. Fusco, Jr., P.E. Fusco Engineering & Land Surveying, DPC City of Middletown Zoning Board of Appeals 16 James Street Middletown, NY 10940 RE: Project Narrative Shiya Leibovitz 92 Linden Avenue City of Middletown Orange County, New York Section 16, Block 8, Lot 8 Our File #24-074B Dear Zoning Board of Appeals Members, The applicant, Shiya Leibovitz, is seeking area variances from the City of Middletown Zoning Ordinance to permit the construction of a single-family residence on the subject property located at 92 Linden Avenue. The property is located within the OR-2 Two Family Owner Occupied District and consists of a pre-existing lot that is approximately 3,988 square feet in area, where 5,000 square feet is required, and proposes a front yard setback of approximately 11.4 feet where 30 feet is required. Accordingly, the applicant is requesting the following area variances: • Lot Area Variance: Required 5,000 square feet, proposed 3,988 square feet (variance of 1,088 square feet). • Front Yard Setback Variance: Required 30 feet, proposed approximately 11.4 feet (variance of approximately 18.6 feet). Character of the Neighborhood The proposed single-family residence is consistent with and compatible with the surrounding neighborhood. The Linden Avenue area is developed with a mix of single-family and multi-family residential structures, and the proposed dwelling will be similar in scale, design, and residential use to the existing housing stock in the vicinity. The proposed development will therefore maintain the established residential character of the neighborhood and will not introduce any use or structure that is inconsistent with surrounding properties. Additionally, many of the existing homes along Linden Avenue and the surrounding streets were constructed on similar sized lots and with comparable setback conditions. The proposed setbacks reflected on the site plan prepared for this application are therefore consistent with the pattern of development already present in the area. As a result, the requested variances would not produce an undesirable change in the character of the neighborhood nor create any detriment to nearby properties. Pre-Existing Lot Conditions The subject parcel is a pre-existing nonconforming lot, created prior to the adoption of the current zoning requirements. Due to the historic subdivision pattern of the neighborhood, the lot does not meet the current minimum lot area or setback requirements of the zoning ordinance. These dimensional constraints are inherent to the property and are not the result of any action by the current applicant. 233 East Main Street Middletown, NY 10940 (845)344-5863 Because the parcel is already established as a separate tax lot and surrounded by existing development, there is no feasible way to enlarge the property or otherwise meet the zoning requirements without obtaining relief from the Zoning Board of Appeals. Title History and Ownership A review of the title report submitted as part of this application confirms the chain of title and ownership history of the subject property. The title report indicates that the property is located at 92 Linden Avenue, Middletown, New York, and that title to the property was vested in Elvis Mrkulic and Eldina Mrkulic by deed from 92-94 Linden Ave LLC dated July 31, 2023 and recorded in the Orange County Clerk’s Office. Importantly, the title documentation reflects that the current owner acquired the property independently and did not own the adjoining parcel that had previously been included in an earlier transaction involving a larger property. The subject lot therefore exists as a separate and distinct parcel, and its present configuration was not created by the current applicant. This information demonstrates that the lot’s dimensional limitations are not self-created by the current owner, but rather are the result of prior conveyances and historic lot configurations. The applicant simply purchased an existing lot of record and seeks the necessary variances in order to make reasonable residential use of the property. Response to Prior ZBA Findings The prior Zoning Board determination raised several concerns regarding the requested variances. The applicant respectfully provides the following clarification. Allegation of Self-Created Hardship The previous decision suggested that the hardship may have been self-created because the applicant purchased the lot with knowledge of its nonconforming condition. However, under New York land use law, the mere purchase of a substandard lot does not in itself constitute a self-created hardship that precludes the granting of an area variance. The applicant purchased a legally existing lot of record that has historically been recognized as a separate parcel. The applicant did not subdivide the property nor create the nonconforming condition. The dimensional constraints are therefore inherent to the property itself. Neighborhood Character The prior findings suggested that development of the lot would be out of character with the surrounding neighborhood. However, the surrounding block contains numerous residential structures on similarly sized parcels. The proposed single-family residence will be consistent with the residential nature of the neighborhood and will not introduce any incompatible use. In fact, developing the vacant lot with a well-designed residence will improve the appearance of the property and enhance the overall character of the block. 233 East Main Street Middletown, NY 10940 (845)344-5863 Size of Variance While the requested relief appears significant when expressed numerically, it must be evaluated within the context of the existing development pattern along Linden Avenue. The neighborhood was developed long before the adoption of modern zoning standards, and many homes were constructed with setbacks and lot areas similar to those proposed here. Accordingly, the requested variances represent the minimum relief necessary to allow the reasonable use of this existing parcel. Drainage and Environmental Impacts The development of a single-family residence on the property will not create any significant adverse environmental impact. Any grading, drainage, or stormwater management requirements will be addressed through the building permit and engineering review process. Standard construction practices will ensure that stormwater runoff is properly managed and that the development complies with all applicable municipal and state regulations. Parking Concerns The proposed residence will include off-street parking consistent with residential zoning requirements. A single-family dwelling generates significantly less traffic and parking demand than many other permitted uses within residential zoning districts. Therefore, the project will not create parking impacts for the surrounding neighborhood. Viability of the Proposed Project The denial findings issued previously acknowledged that the applicant intends to construct a single-family residence on the lot and that the surrounding area contains a mix of residential uses. The applicant has provided supporting documentation demonstrating that the proposed project is feasible and can be constructed in compliance with applicable building codes and engineering standards. The requested variances represent the minimum relief necessary to allow reasonable use of the property. The project has been designed to fit within the constraints of the lot while maintaining appropriate building placement, access, and drainage considerations. The proposed home will not create adverse environmental impacts, and any stormwater or grading concerns can be addressed through the building permit review process. Balancing Test Considerations When considering the statutory balancing test for area variances, the following factors support approval: 1. No Undesirable Change in Neighborhood Character The proposed single-family residence is consistent with surrounding residential uses and will maintain the existing character of the neighborhood. 2. No Feasible Alternative Due to the size and configuration of the lot, there is no reasonable way to develop the property without the requested variances. 233 East Main Street Middletown, NY 10940 (845)344-5863 3. Variance is Not Substantial in Context While the requested relief is numerical in nature, it is consistent with the development pattern of nearby properties that have similar lot sizes and setbacks. 4. No Adverse Environmental or Physical Impact The proposed development will be constructed in accordance with applicable engineering standards and will not create adverse drainage, traffic, or environmental impacts. 5. Hardship is Not Self-Created The lot is a pre-existing nonconforming parcel and its limitations were not created by the current owner. Conclusion The requested variances represent the minimum relief necessary to allow the reasonable development of a long- standing vacant lot within an established residential neighborhood. The proposed single-family home is consistent with the character of the surrounding area and will not create any adverse impacts to neighboring properties or the community. For the reasons outlined above, the applicant respectfully requests that the Zoning Board of Appeals grant the requested area variances to permit construction of the proposed single-family residence at 92 Linden Avenue. Very Truly Yours, Alfred A. Fusco, Jr., P.E. Fusco Engineering & Land Surveying, DPC