Zoning Board of Appeals

City of Mount Vernon Meeting Date Zoning Board of Appeals Agenda December 21, 2021 Zoning Board of Appeals Department of Planning & Community Development City Hall - Roosevelt Square Mount Vernon, New York 10550-2060 (914) 699-7230 Shawyn Patterson-Howard Elvira Castillo Mayor A cting Chair ZONING BOARD OF APPEALS MEETING MINUTES for December 21, 2021 A regular meeting of the Zoning Board of Appeals was held at 6:30 PM on December 21, 2021, via ZOOM. The Acting Chair, Elvira Castillo, introduced herself and read the notice for the Zoning Board of Appeals meeting for Tuesday, December 21, 2021. Item 1 - ROLL CALL The Chair called the roll: In addition to the Chair, attending were the following Commissioners: Ms. Darden and Mr. Cutler. Also attending were Marlon Molina, 2nd Deputy Commissioner, Maria Pace, ZBA Secretary, Nkechi Nwachukwu, Land Use Counsel and Bob Galvin, Planning Administrator. With a quorum present, the Chair opened the meeting at 6:30 pm. Item 2 - APPROVAL OF MINUTES The Chair asked if the Commissioners had an opportunity to review the draft minutes and if there were any questions or changes. There being none, the Chair asked for a motion to approve the minutes of the October 19, 2021, regular meeting. Commissioner Cutler made the motion, seconded by Commissioner Darden which carried by a vote of 3-0. New Public Hearings The Chair read the description for Item 3.1 Calendar # 1761-Z 41 Eastfield Road (Section 159.81, Block 2151, Lot 1) located in the R1-7 Zoning District. 1  City of Mount Vernon Meeting Date Zoning Board of Appeals Agenda December 21, 2021 The Chair indicated that the applicant is Mr. Eugene Kung, the owner of a single-family residence at 41 Eastfield Road in the R1-7 zoning district. The property is a corner parcel located on the southeast corner of Overhill Road and Eastfield Road. The Overhill Road frontage is selected as the primary front yard while the Eastfield Road frontage is the secondary front yard. Mr. Kung is requesting two area variances for a fence height of 5’ where 4’ is maximum allowed and setback of 0’ for the required 18’ secondary front yard setback. The fence encloses the vacant non-corner lot of a combined two lot corner in the R1-7 zone. Applicant indicates that the 5’ height and 0’ secondary yard setback is desired to provide added security and additional interior yard space for Applicant’s family, pets and children. The specific variances required are listed below: • §267-14 B.(1)(a) – fence height • §267-13 B (1) (b) – required front yard 18’ – secondary The Chair indicated that the proposed area variances are a Type II action under SEQRA. This is based on 6 NYCRR 617.5(c)(17) “granting of an area variance for a single-family, two-family or three-family residence”. The Chair asked Mr. Kung to review the criteria for the granting of the two area variances being requested. Land Use Counsel asked Mr. Kung if he is requesting two area variances. Mr. Kung indicated that he is requesting an area variance for the fence height of 5’ where 4’ is allowed and a setback for the secondary front yard which allows 18’ where as the fence aligns along the property line with no setback provided. Mr. Kung introduced himself and indicated his address of 41 Eastfield Road. Mr. Kung read out the five individual criteria for area variances. 1) Whether an undesirable change will be produced in the character of the neighborhood or a detriment to nearby properties will be created. Mr. Kung stated that the fence represents an improvement since it replaces a broken chain link and wire fence from 1986. The older fence was in poor condition and the new fence is a consistent look and is a traditional black open style more in keeping with the general character of the Tudor, Colonial and Mediterranean style homes in the neighborhood. The fence will not be intrusive and not block views into the property. The property opposite is an empty lot belonging to and attached to the property of the 2  City of Mount Vernon Meeting Date Zoning Board of Appeals Agenda December 21, 2021 Government of Tanzania which has shrubbery 6 feet and higher along the Eastfield Road frontage. 2) Whether the benefit sought by the applicant can be achieved by some other feasible method, other than through an area variance. Mr. Kung indicated that it was his understanding that the only current alternatives within the zoning rules are to either reduce the size of the enclosed yard substantially (by more than 2,000 sf ) by moving the fence back 18 feet or reduce the height of the fence and the security desired from the height (as well as making the fence height inconsistent along the entire length if only the portion in the secondary front yard is to be reduced). These options involve additional costs and loss of value from the current fence. Neither provides the benefit sought. There does not appear to be any option other than the requested area variances that would allow us to keep the 5-foot high fence within the secondary front yard zone. 3) Whether the requested area variance is substantial Mr. Kung stated that the request is to have a fence of 5 feet, 1 foot higher than allowed under the zoning rules for the secondary front yard region. The sections of the fence within this zone include 17 (seventeen) 6-foot sections directly along the road, a 10-foot double gate along the road, and six or seven (the north side is angled) 6-foot sections going away from the road. The total length of affected fence totals about 154 feet within the secondary front yard zone. Note that this part of the fence only affects about half of the lot’s frontage on Eastfield Road and that none of the fence within the secondary front yard is directly between the road and the house. 4) Whether the proposed variance will have an adverse effect or impact on the physical or environmental conditions in the neighborhood or district: Mr. Kung indicated that No trees were removed during the installation of the fence. No trees or landscaping would be differently affected by the use of a five-foot fence vs. a four - foot fence. Trees were removed a month or so prior to the installation of the fence. These would have been removed with or without a fence and the use of a 4 or 5 foot fence would not have altered the tree removal. While removal of the trees made installation of the fence easier, it would have been possible to install the fence with the trees as they were, though it would have caused fence damage and repair in the future as the trees’ trunks and roots grew. Two mulberry trees were removed along the road, both growing next to overhead wires, posing a risk both to the power and communication lines as well as to people and property. Neither tree grew straight. One leaned towards and over a neighbor’s driveway at 25 Eastfield Road, endangering their property and safety. The other leaned over the road, endangering passersby and cars. In 2020, a large tree near these trees fell into the lawn during a storm. Had it fallen the other way, significant property and bodily damage could have occurred. These trees were not intentionally planted by us but had grown unattended and unmaintained. Neither tree was particularly handsome and the possibility of future damage from storms were main reasons to remove them. While trees and shrubbery were removed along the fence line, all of this growth was overgrowth from a lack of attention. The intent is to replant with shrubs and flowers to enhance the landscape visually in the yard. New trees for aesthetics and shade are being considered, but 3 City of Mount Vernon Meeting Date Zoning Board of Appeals Agenda December 21, 2021 planted farther from the road so as not to grow underneath or near the power lines. No environmental effects are expected from use of a five-foot fence instead of a four-foot fence. The fence does not affect sightlines or visibility for traffic as the fence is in the middle of the block on a road that is usually low traffic. 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. Mr. Kung stated that the Building Department had approved the fence permit for the 5 foot height in the building application that included a plot survey showing the fence line through the front yard area. While it was noted in the permit that fences in a front yard should be 4 feet in height, it seemed in the granting of the permit that the scope of the proposed fence was fine. We had always thought of the empty lot (though now combined to be a single lot) as the “back yard” and did not understand the zoning definition of “front yard.” With the permit granted, everything checked out and we had our contractor order the materials. The permit had been submitted in early fall of 2020 hoping to begin work before the ground froze. The permit was granted in January 2021, which meant we had to wait until the ground thawed to schedule fence installation in the spring. After waiting many months, we thought everything was in order when the installation was scheduled and then completed in May 2021. 6) State any other information that you believe would be helpful to the ZBA in deciding the Application. Mr. Kung stated that he has spoken to his neighbors and, so far, has only received compliments about the fence. There is general agreement that the fence is a significant improvement over the previous state of fencing and the overgrowth that occurred around it. The fence height has not come up as an issue. Having the fence close to the road has allowed interactions with neighbors walking by, something that a fence removed 18 feet from the road would make less likely. I have been able to get to know many new neighbors and their dogs safely through the fence. We have a dog, sometimes more than one when family visits. Ensuring the safety of all pets within the yard is particularly important to us, especially securing them from getting into the road. The Chair asked the Commissioners if they had any questions. Commissioner Darden asked Mr. Kung to clarify if he is claiming the 18’ as part of your property. Mr. Kung indicated whether or not the variances are granted, this would still be part of his yard and would be his property. Land Use Counsel asked if any gates have been installed. Mr. Kung responded that there are 3 gates with only one gate in the area affected by the variance request. The gates are for pedestrians and the one gate was provided for vehicles that did landscaping in the yard and selected tree removals. The gate can be used for future access into the yard for landscaping purposes. 4 City of Mount Vernon Meeting Date Zoning Board of Appeals Agenda December 21, 2021 Commissioner Cutler indicated that he was looking at the property on google maps and the fence is on the property line. He has a concern that the City’s snowplows might damage his fence since there is no buffer between the road and the fence. Mr. Kung indicated that there are stones which line the road. He agreed with Commissioner Cutler that the road is narrow, he indicated that there have been no previous problems with snowplowing or other City work in the road. Mr. Galvin, the Planning Administrator, indicated that if the ZBA identified that as a concern, the applicant could indemnify the City from any damage resulting to his property. Land Use Counsel stated that indemnification is possible although it usually works to protect the applicant’s encroachment on the City’s right of way. Other conditions to be considered by the ZBA would relate to curb cuts which would require City Council approval and ARB approval for the fence and gates. The ZBA could provide a general condition that Applicant would need to obtain any other required City approvals. The Chair asked the Planning Administrator if proper notification was made for this application. The Planning Administrator indicated that applicant has provided the names for the mailing notice, and provided the affidavits for the mailing, sign posting and legal notice. We have received the consent/objection forms from Mr. Paul Sullivan and the applicant’s family in favor of the application. Commissioner Cutler stated that kudos go to the applicant for his presentation to the ZBA without legal representation. The Chair opened the public hearing and asked if there were any members of the public that wished to comment. Public Comment – John Denfeld, 81Brookfield Road – he is a neighborhood around the corner from the subject property. He asked if the application is for the existing fence or a new fence. The Chair indicated that it relates to the existing fence. Mr. Denfield had no objection and indicated that it is a nice-looking fence. Public Comment – Ms. Joan Geagan, 25 Eastfield Road – indicated she is the adjacent neighbor to Mr. Kung. She had no objection and liked the fence. She has lived in her residence for over 30 years and there has never been any incidents with the City’s garbage trucks or snowplows hitting the previous fence. The stones along the road are there to let the trucks know where the city right of way is located. Commissioner Cutler thanked Ms. Geagan saying her comments were extremely helpful. 5 City of Mount Vernon Meeting Date Zoning Board of Appeals Agenda December 21, 2021 There was no other public comment. Mr. Kung indicated that he received another consent letter form Ms. Dana Owen. The Land Use Counsel asked that Mr. Kung to provide the consent letter to the Planning Department for the record. The Chair asked for a motion to close the public hearing. Commissioner Cutler made the motion to close the public hearing, seconded by Commissioner Darden and carried by a vote of 3-0. The Chair asked for a motion to approve the area variances for the height and setback for the fence already existing on the property. The Land Use Counsel reminded the ZBA of ARB approval and City Council approval for curb cuts. The Chair indicated that she was comfortable with indemnification by the applicant. Commissioner Darden indicated that she did not see the need for indemnification. The neighbor had indicated for the record that there has been no problem with City trucks hitting the previous fence. Commissioner Darden also indicated that she would approve the application with no conditions. She felt that there should be no added bureaucratic obstacles attached to the ZBA approval. There was a general discussion among the ZBA Board members regarding the need to include conditions relating to the need for additional approvals. Commissioner Cutler made the motion to approve the two area variances for height and setbacks for the existing fence on the property at 41 Eastfield Road, seconded by Commissioner Darden and carried by a vote of 3-0. Item 4 - ADMINISTRATIVE ACTIONS Review and Approval of Proposed 2022 ZBA Meetings The Chair indicated that the ZBA is requested to approve the 2022 schedule for ZBA meeting. She asked if the Board had any questions or changes to the proposed 2022 schedule. The Chair indicated that the schedule shows the work session and the regular meeting on the same night. She asked if there was any issue with this. Commissioner Cutler thought that this was a more efficient use of the board’s time. 6 City of Mount Vernon Meeting Date Zoning Board of Appeals Agenda December 21, 2021 Commissioner Cutler made the motion to approve the 2022 meeting schedule for ZBA, seconded by Commissioner Darden and carried by a vote of 3-0. Revise ZBA application to incorporate the criteria for area and use variances in the form. The Chair indicated that the ZBA application has been revised to include the criteria for the area and use variances. Currently, the application requires a separate Statement of Principals to address the criteria for use and area variances. The Planning Department also recommended that the consent/objection form should eliminate the requirement for notarization for any submitted consent or objection response. There was a general discussion on the requirement for notarizing the consent/objection form. Commissioners agreed with the Planning Department that this requirement just provides an obstacle to public participation. The Land Use Counsel said that the notarization requirement allows the verification of the person submitting these forms. She would check to see if this is a requirement in the ZBA’s rules. The Chair asked the Planning Administrator if there had been any issues with this requirement. The Planning Administrator indicated that the experience has been that it has been confusing to members of the public. Some members of the public believed that they would need to send a response by certified mail at a cost to themselves. It is also difficult to get items notarized today. It was easier and more available in the past. Additionally, there are no other communities including the Cities of Yonkers, White Plains and New Rochelle that have this requirement. He indicated that if there was a requirement in the ZBA rules, the ZBA could revise the Board’s rules at a future meeting. The ZBA commissioners agreed with the elimination of the requirement for the form to be notarized. Commissioner Cutler made a motion to adopt the revised Application form and eliminate the notarization on the Consent/Objection form, seconded by Commissioner Darden and carried by a vote of 3-0. The Chair asked if there was any new business. There being none, she asked for a motion to adjourn. Commissioner Cutler made the motion, seconded by Commissioner Darden and carried by a vote of 3-0. The meeting was ended at 7:50 pm Maria Pace Land Use Board Secretary, Bob Galvin, AICP, Planning Administrator 7