(3) Zoning Board of Appeals

Town of Red Hook Zoning Board of Appeals Meeting Minutes September 12, 2012 CALL TO ORDER The meeting was called to order at 7:00 P.M. by Chairman Nick Annas. ROLL CALL Members Present: Nick Annas, Paul Marienthal, John Douglas, Ken Anderson, Chris Carney, Jim Hegstetter, Tim Ross Also Present: Victoria Polidoro, office of the Town Counsel, Trilby Sieverding, Jim Ross, Bob Fennell PRELIMINARY BUSINESS Minutes of August 8, 2012: Chairman Annas did not approve the minutes stating they are incomplete and will be revised and reissued. Trilby Sieverding also said there was something in the minutes attributed to her that she did not say. Attorney Polidoro had some comments and was asked by Chairman Annas to email them to us. Chairman Annas made a motion that the minutes be revised as necessary. The motion was seconded by John Douglas and all were in favor. Planning Board Minutes and Letters: There were no comments from the Board. Building Inspector/ZEO Permits and Memos: The Permits and memos were reviewed by the Board. PUBLIC HEARING 7:05 Appeal of 12-08, Mitchell Bodian application for an interpretation of Section 143-41 D(4)(a) of the Town Code regarding whether storage should be permitted on a farm. Mr. Bodian has been ordered to remedy the following violation of the Zoning Law by June 23, 2012: use of his property for the storage of party rental equipment and supplies and commercial dish washing. The applicant’s property is at 210-214 Oriole Mills Road, Tax Grid # 6371-00-397857, in the RD3 zoning district. Chairman Annas stated he was going to read through the twenty pertinent facts read from the CONFIDENTIAL ATTORNEY/CLIENT PRIVILEDGED DOCUMENT 7.31.12 that were read in the previous Public Hearing. Chairman Annas stated that this is all data that were compiled from the Public Hearing regarding the Jakob Cirell request. The applications are dependent from the same situation, the same data. So we’re going to go through these points. What I’m asking is if anybody would like to refute any of these points. If not, they will stand as fact. 1. The property is located in a residential district, the RD3. 2. Almost all commercial and light industrial uses are prohibited in the RD3. 3. The Town amended the Zoning Law in 2011 to create the Agricultural Business District, otherwise known as the ABD. 4. The parcel of land was not included in the ABD. 5. Farm industry is permitted in the RD3 subject to the standards of 143 Section 41(D). 6. Farm industry is defined in Section 143(4) as “unlimited business use conducted by the farm operator which is clearly incidental and secondary to the use of farm premises for agricultural purposes and does not alter the character, therefore, with the objective of expanding the income of the farm throughout all seasons by the employ of equipment and skills customary in the agricultural enterprise in which use shall be fully consistent with the use limitations set forth in paragraph 143-41(D) of the zoning law. 7. The list of permitted farm industries includes marine, recreation vehicle, historic automobile and related seasonal storage. 8. Such storage generally involves two trips per year per vehicle; one to bring the stored vehicle to the site for winter storage and the second to remove the vehicle from the site in the spring. 9. Storage for a party rental business involves a more intense use of the surrounding roadways and the site. 10. According to information provided to Zoning Enforcement Officer, Fennell, there are approximately two trucks per day entering and leaving the site. 11. The nature of a commercial party rental business involves deliveries to and from the site throughout the year. 12. Crops have not been grown on the property for several decades. Mitchell Bodian challenged #12 and the Board and Mr. Bodian went back and forth on this issue. 13. Christopher Lindner, a neighbor, asserts that crops have not been grown on the property since 1935, which is not contradicted by anything in the record. Mitchell Bodian disputed this. 2 Mitchell Bodian – I have no knowledge what happened prior to the last six (6) years. The last six (6) years I have not grown any crops. That’s an affirmative statement that I can make. What happened prior to that, I don’t know. 14. The property was used to board horses for two (2) years. During that time, there was an average of seven (7) horses boarded. Mitchell Bodian disputed this. He couldn’t say exactly how many horses were boarded. Mitchell Bodian asked how one started a farm. Tim Ross – You can’t get the AGS exemption. You can’t apply for it until you’ve proven that you’re actually a viable business. So you have to actually farm it and prove that you’re an active farmer before you can apply for an agricultural exemption. That’s the reason there is a delay in there. Attorney Polidoro – Under our code, a farm is a type of business, where as an agricultural operation can be anything that relates to agriculture any definition of agriculture. Chairman Annas continued… 15. The horse boarding operation has ceased. Susan Lindner – Excuse me. I live next door. I see the horses. I’m not going to argue with Mr. Bodian about his rent role but, the horses haven’t been there since April, 2012. Tim Ross – Let’s just change #14 to: The property was used to board horses intermittently from 2005 to 2012. During that time varying numbers of horses were boarded. Ken Anderson – You know another point that relates to the agricultural farm, is that you have to take into consideration there are soil maps that are on file in Dutchess County regarding your specific property like anyone else’s specific property. The soil maps really illustrate whether or not a crop can be grown and what type of crop would be successful on that particular land. Another factor is that you have to prove in the agricultural district that you have produced $10,000 worth of products consecutively for at least the last two (2) years. Mitchell Bodian – I would just respectfully disagree. The law specifically states for an agricultural exemption that if you lease land to a farmer who has at least $10,000 of agricultural revenue, you still get the agricultural assessment exemption. That’s a fact. I have other property that benefits from that. So, no, the property doesn’t have $10,000 of agricultural revenue. 3 Chairman Annas – Let’s go through a couple more steps. 16. 28.35 acres of the property is registered in the DEC Forestry Management Program and is committed until the year 2019. 17. The remaining 9.5 acres appear to have unsuitable soils for farming as they are very rocky. No tillable land is apparent. 18. There is no livestock on the property. 19. There are no visible crops of any kind on the property. 20. Several of the buildings on the property are in disrepair and do not appear to be used for agricultural purposes. Chairman Annas – Therefore be it resolved that the Zoning Board of Appeals determines as follows: 1. Equipment storage for a party-rental business does not constitute a farm operation. 2. A farm industry is not permitted to be conducted on the site as there is no principal farm operation. 3. Even if there were a principal farm operation, equipment storage for a party-rental business is not a permitted farm industry use because the use alters the character of the property, and does not involve equipment and skills customary to an agricultural enterprise. 4. The June 1, 2012 interpretation of Robert D. Fennel is affirmed. 5. A copy of this decision shall be filed with the Town Clerk, the Zoning Enforcement Officer, the Building Inspector, and the Secretary of the Planning Board within five days of adoption of this resolution. Chairman Annas – Are there any further comments before we close the hearing? If not, then these hearings are closed. Chairman Annas – I make a motion to accept this resolution as written. Tim Ross – I’ll second it with the comments modified to indicate what Mr. Bodian’s general records indicate a horse farm. All were in favor. Chairman Annas – So you are, at this moment, in violation of town code if you still have that dishwashing and party rental storage going on there. 4  (SEE “DETERMINATION REGARDING APPEAL BY MITCHELL BODIAN” AT THE END OF THESE MINUTES) PUBLIC HEARING 7:32 Continuation of Public Hearing for Appeal 12-07, Jakob Cirell application for an interpretation of Section 143-41 (D)(4) of the Town Code which lists allowable farm industries and businesses on farms in the RD3 zone. Mr. Cirell wishes to establish a small brewery at 214 Oriole Mills Road, Tax Grid # 6371-00-397857 in the RD3 zoning district. Chairman Annas – Our Public Hearing is still open. This is a continuation from the prior month. Do we have any comments? We’ll start with the applicant. First, is Jakob Cirell still interested in pursuing this? Mitchell Bodian – He is. Chairman Annas – We have a similar format here in our determination. There are just 20 steps. Some of them are the same. They may sound a little redundant, but, let me go through them. 1. The property is located in a residential district, the RD3. 2. The Town amended the zoning law in 2011 to create the Agricultural Business District (ABD). 3. A brewery is specifically identified as a permitted use in the ABD. 4. A brewery is not identified as a permitted use in the RD3. 5. Farm industry is permitted in the RD3 subject to the standards in 143-41(D). 6. The list of permitted farm industries includes “processing of locally produced agricultural products”. 7. Farm industry is defined in Section 143-4 as “a limited business use conducted by the farm operator, which is clearly incidental and secondary to the use of the farm premises for agricultural purposes and does not alter the character thereof, with the objective of expanding the income of the farm throughout all seasons by the employ of equipment and skills customary to the agricultural enterprise and which use shall be fully consistent with the use limitations set for in § 143-41D of the Zoning Law. 8. In 1999 the Board determined that a winery is a permitted farm industry to the Greig Farm, a 500+ acre working farm, in Appeal No. 4-99. 9. The applicant has stated that he will grow several hops plants on the property. 10. Hops constitutes a small percentage of the ingredients in beer, approximately 5%. 11. Grains for the beer will be sourced from farms within Red Hook and other farms within a 160 mile radius. 12. Crops have not been grown on the property in the last six (6) years. Mitchell Bodian – Again, we don’t know whether that’s true or not. Harvey Cohn – I’ve lived across the property for 40+ years. Neither of the previous owners – they did not grow any crops. They did not have any crops growing on the property. It was 5 approximately 1965 when I moved up here. Attorney Polidoro – So we are amending 12 to say crops have not been grown on the property for at least the last six (6) years. Susan Lindner – I’ve walked the property for thirty (30) years and I’ve been on the property and, I know there are no crops that have ever been grown there except Mr. Salerno who grew some tomatoes for himself. That’s it. There are aerial photographs also that will show you that no crops have ever been grown there. 13. Christopher Lindner, a neighbor, asserts that crops have not been grown on the property since 1935, which is not contradicted by anything in the record. 14. The property was used to board horses intermittently from 2005 – 2012. During that time a varying number of horses were boarded. 15. The horse boarding operation has ceased. 16. 28.35 acres of the property is registered with the DEC Forestry Management Program and is committed until 2019. 17. The remaining 9.5 acres appear to have unsuitable soils for farming as they are very rocky. No tillable land is apparent. 18. There is no livestock on the property. 19. There are no visible crops of any kind on the property. 20. Several of the buildings on the property are in disrepair and do not appear to be used for agricultural purposes. Mitchell Bodian – I would just modify that to say as of the date of the application, there was no livestock on the property. I don’t know if that’s a true statement as we sit here tonight. Chairman Annas – Are there any other comments? Be it resolved, the Zoning Board of Appeals determines as follows: 1. A stand alone brewery does not constitute a farm operation. 2. The property is not proposed to be used for a farm operation. Mitchell Bodian disputed this. Tim Ross – Let’s modify that to: At the time of the application, the property was not being used for a farm operation. Attorney Polidoro – On number one (1), I think it should be modified to say; A stand alone brewery which does not grow its own grains/hops does not constitute a farm operation. Mr. Bodian asked if that was accurate. Attorney Polidoro – We do have a definition of a brewery in the code but, the question is 6 whether a brewery on its own can be a farming operation. Here we have a brewery that’s not going to be growing its hops. Tim Ross – It would have to be secondary to a farm operation to come under that interpretation of the code. Mitchell Bodian asked if it could be secondary to a livestock operation. Tim Ross – The definition is: The limited business use connected by the farm which is clearly incidental, secondary to the use of the farm premises for agricultural purposes and, it has to be secondary, clearly secondary, and does not alter the character thereof, with the objectives of expanding the income of the farm, throughout all seasons, by the employ of equipment and skills customary to the agricultural enterprise. So, if you have the people that are working on the farm, are also running the brewery, which a lot of different ones have stills and breweries up in Columbia County and you see them but, I don’t think it has to be that you grow all the grain right there, so you’re using just your own products and, I haven’t researched it this time but, in ’99 it had to be locally produced and Agra markets defined locally as within New York State, at that time. With the Allison Winery, I recall that we just wanted them to move and they did try to put in grapes. There was discussion between the Board and Mr. Bodian. Susan Lindner – The brewery is only permitted in the ABD district, Agricultural Business District. This farm, this property, this, whatever it is, is not in the agricultural business district. Tim Ross – If this property were in the ABD, they would need nothing. They would just go for a building permit. They’re asking for an interpretation based on that section of the code which is within their rights; a farm industry. Susan Lindner – In order for the brewery to be established on the farm, you have to be a farm first. Then you can apply, if you’re in the agricultural business district, to have a brewery. But in order to have the brewery, your farm has to be able to produce 51% of the product used in the brewery. 3. Even if a brewery is considered a farm industry use, this Board finds that there is no principal farm operation on the property, and that therefore farm industry, as an accessory use to a farm operation, is not permitted. 4. The May 15, 2012 interpretation of Robert D. Fennell is affirmed. 5. A copy of this decision shall be filed with the Town clerk, the Zoning Enforcement Officer, the Building Inspector, and the Secretary of the Planning Board within ten days of adoption of this resolution. Attorney Polidoro – What this resolution doesn’t do is it doesn’t answer the question of whether or not a brewery is a farm industry. We don’t get to that question because the resolution finds it’s not a farm. 7 Tim Ross – I vote that we adopt this with the changes that were similar to the last one. Jim Hegstetter – I second that. Chairman Annas – Any discussion by the Board? All were in favor. Chairman Annas – No brewery at this time under these circumstances. (SEE “DETERMINATION REGARDING APPEAL BY JAKOB CIRELL” AT THE END OF THESE MINUTES) PUBLIC HEARING 7:55 Appeal 12-09, application of Peter Sweeney a variance from the District Schedule of Area and bulk Regulations and Section 143-18a(2) to: Reduce the side yard setback for an accessory building from 20 feet to 10 feet and to increase the building coverage from 7% to 14%. The applicant wishes to make alterations to an existing residence and construct a garage at 95 Country Club Road, Tax Grid # 6372-19-586106 in the RD3 zoning district. Chairman Annas – The Public Hearing is now open. Please come forward and state your name. My name is Philip Labeau and, I am the owner of the property. Chairman Annas – One of the things we asked Peter Sweeney to do because he wasn’t sure or clear on exactly the setbacks he wanted and, it’s crucial that we know exactly what they are as you will be help to that as a minimum. Generally you’ll probably want to go a hair under that to make sure that you are within bounds. Do you want to present those maps to the board? Chairman Annas – Side yard setback you want to reduce to 10 ft.? The application has 19 ft. 4 ½ in. What we are going to have to do is amend this application and have you sign it today. Bob Fennell – Physical buildings on this size lot are subject to this provision that allows for a small setback but, that’s only for the principal building. This is an accessory building that must meet the 20 ft. setback. Multiple discussions took place over the pictures on the map. 8 Chairman Annas – What we are doing is: there are two (2) issues, not three (3) and they affect the garage only and Philip Labeau is asking for a reduction in side yard setback from 20 ft. to 10 ft. Tim Ross – I move that we grant a variance allowing the 10 ft. side yard setback of proposed garage and total coverage to increase on the parcel to a total of 14% for the following reasons: 1. It would be a benefit to the applicant. 2. It won’t be a detriment to the neighborhood or the health or welfare of the public. 3. It’s consistent with several other parcels in the same neighborhood which have had the exact same situation. 4. It’s not self-created. It’s an existing lot of record that zoning came in after the parcel was created. Jim Hegstetter – I second that. Chairman Annas asked if there were any comments. There were none. All were in favor. ADJOURNMENT Jim Hegstetter made a motion to adjourn the meeting. The motion was seconded by Chris Carney and all were in favor. The meeting was adjourned at 8:10 P.M. Respectfully submitted, Jackie Fenaroli Secretary 9 FINDINGS AND DECISION/INTERPRETATION Appeal #12-07, application by Mitchell Bodian/Jakob Cirell to establish a small brewery in the new Agricultural Business District where wineries and breweries are permitted on a farm, but not in an RD3 zone. FINDINGS: 1. The property is located in the RD3 zoning District at 210-214 Oriole Mills Road, Red Hook. 2. Tax Map # 6371-00-397857 3. The zoning law requires that there has to be a principal farm operation on the property which includes the processing of locally produced agricultural products. 4. The applicant wishes to establish a small brewery on the 210-214 Oriole Mills Road property. 5. There were several oppositions from neighbors. 6. A variance would be of benefit to the applicant with detriment to the community. 7. There will be a negative change in the character of the neighborhood. 8. There will be little impact on the health, welfare or safety of the community. DECISION: Tim Ross made a motion - Interpretation Denied based upon the above findings. The motion was seconded by Jim Hegstetter and carried by a 7 to 0 roll call vote. Dated: September 24, 2012 10 FINDINGS AND DECISION/INTERPRETATION Appeal #12-08, Mitchell Bodian application for an interpretation of Section 143-41 D(4)(a) of the Town Code regarding whether storage should be permitted on a farm. Mr. Bodian has been ordered to remedy the following violation of the Zoning Law by June 23, 2012: use of his property for the storage of party rental equipment and supplies and commercial dish washing. FINDINGS: 1. The property is located in the RD3 Zoning District at 210-214 Oriole Mills Road, Red Hook. 2. Tax Map # 6371-00-397857. 3. The zoning law states that in the RD3 Zoning District it is essentially an agricultural and residential use zone where most business and commercial uses are not permitted by the District Schedule of Use Regulations (Sec. 143 Attachment 1) of the Town of Red Hook Zoning Law. The storage of party rental equipment and supplies is not listed as a permitted use in the District Schedule of Use Regulations nor is a commercial dish washing operation. 4. The applicant wishes to use his property for the storage of party rental equipment and supplies and commercial dish washing. 5. There were oppositions from some neighbors. 6. A variance would be of benefit to the applicant with detriment to the community. 7. There would be a negative change in the character of the neighborhood. 8. There will be little impact on the health, welfare or safety of the community. DECISION: Nick Annas made a motion – Interpretation Denied based upon the above findings. The motion was seconded by Tim Ross and carried by a 7 to 0 roll call vote. Dated: September 24, 2012 11 FINDINGS AND DECISION Appeal #12-09, Rachel Simon/Philippe LaBeau (Peter Sweeney, architect for Simon/LaBeau) application to reduce the side yard setback for an accessory building from 20 feet to 10 feet and to increase the building coverage from 7% to 14%. FINDINGS: 1. The property is located in the RD3 Zoning District, 95 Country Club Road, Red Hook. 2. Tax Map # 6372-19-586106. 3. The zoning law requires the District Schedule of Area and Bulk Regulations limits building coverage to 7%. Section 143-18 A(2) requires a setback of 20 feet from any lot line. 4. The applicant wishes to increase building coverage from 7% to 14%. 5. There were no objections from the audience. 6. A variance would be of benefit to the applicant with no detriment to the community. 7. There will be no change in the character of the neighborhood. 8. There will be no impact on the health, welfare or safety of the community. DECISION: Tim Ross made a motion to grant the variance based upon the above findings. The motion was seconded by Jim Hegstetter and carried by a 7 to 0 roll call vote. Dated: September 24, 2012 12 13