Zoning Board of Appeals

ZONING BOARD OF APPEALS MINUTES MONDAY, MAY 7, 2012 7:00 P.M. CITY COUNCIL ROOM PRESENT: Bill Moore, Chairman; Keith Kaplan, Vice Chairman; Adam McNeill, Secretary; Gary Hasbrouck; George “Skip” Carlson; Shirley Poppel STAFF: Susan Barden, Senior Planner, City of Saratoga Springs Joe Scala, City Attorney, City of Saratoga Springs CALL TO ORDER: Bill Moore, Chairman called the meeting to order at 7: 09 P.M. SALUTE TO THE FLAG ANNOUNCEMENT OF RECORDING OF PROCEEDING: The proceedings of this meeting are being taped for the benefit of the secretary. Because the minutes are not a verbatim record of the proceedings, the minutes are not a word-for-word transcript of the recording. ANNOUNCEMENT OF ADJOURNED PROJECTS: ADJOURNED ITEMS 6. #2653 CASE GARAGE ADDITION, 53 Walton Street, area variance to construct second story to an existing detached garage for living space, seeking relief to exceed the defined use of a garage in the Urban Residential 3 District. 7. #2628 5 EAST BROADWAY SUBDIVISION, 5 East Broadway, area variance for a proposed three lot subdivision; seeking relief from the minimum mean lot width requirement for each of the three lots in the Urban Residential-2 District. 8. #2526 SUNOCO SIGN, 154 South Broadway, use variance to re-brand existing gas station signs and canopies in a Transect-5 Neighborhood Center District; seeking relief from the maximum number of signs per parcel. 9. #2507 SIRO'S RESTAURANT, 168 Lincoln Avenue, interpretation and use variance to operate restaurant year round in an Institutional Horse Track Related District seeking relief to exceed the 90 day restriction on the operation of the eating and drinking establishment. 11. #2355 CELLCO PARTNERSHIP AND VERIZON WIRELESS, 252 Washington Street, use variance for construction of a telecommunication facility in a Transect-5 District. NEW BUSINESS: 1. #2658 SARATOGA HOSPITAL, 59 Myrtle Street, area variance to erect two freestanding signs; seeking relief from the maximum size requirement for such signs in the Saratoga Hospital Planned Unit Development District. SEQRA: Action appears to be a Type II action and therefore exempt from further SEQRA review. AREA VARIANCE CONSIDERATIONS: MAXIMUM AREA FOR SIGN REQUIRED PROPOSED TOTAL RELIEF REQUESTED Sign Type ID.5 4 sq ft 21.75 sq ft 17.75 sq. ft (82%) Sign Type ID.1 9 sq ft 14 sq ft 5 sq ft (56%) Applicant: Saratoga Hospital, Kevin Ronayne, Saratoga Hospital; Tom Wheeler, AJ Signs Agent: Stephanie Ferradino, Attorney-Jones Ferradino Attorneys at Law Stephanie Ferradino representing Saratoga Hospital stated the Hospital is seeking two variances for signage for property located on the west side of Myrtle Street. This application concerns the property where the Rubin Dialysis Center is located. We have a brand new building that is in the process of being occupied. The location for the two signs which are the subject of tonight's variances are to replace an existing sign and another to direct people to the practices. The City became concerned that this side of the campus was confusing for 911. They both shared the address of Myrtle Street. The City required us to change the name of the road. This street is now known as Myrtle Street Park. Because we had to modify that the City asked us to make a change in the existing sign. The signage is governed under the PUDD legislation, which was modified several years ago, so some of the provisions will appear different from what you are familiar with. The new signs which are being proposed conform to the style of the remainder of the campus. Due to a contractual agreement executed many years ago all physicians are to be listed on the signage. A visual presentation was provided to the Board. Skip Carlson requested a copy of the contract which noted the requirement to list all physician’s names on the signage. PUBLIC HEARING: Bill Moore, Chairman opened the public hearing at 7:25 P.M. Bill Moore, Chairman asked if anyone in the audience wished to comment on this application. None heard. The public hearing will remain open. Bill Moore, Chairman stated Saratoga County Planning Board referral is required. Bill Moore, Chairman stated the Board will meet again on Monday, May 21, 2012 and at that time will present a resolution. The Board recessed at 7:25 P.M. The Board reconvened at 7:30 P.M. OLD BUSINESS: 2. #2616.1 SIRO'S RESTAURANT, 168 Lincoln Avenue, modification to a previously approved area variance for construction of a 14.5 feet high acoustical fence in an Institutional-Horse Track Related District. City of Saratoga Springs Zoning Board Minutes – Monday, May 7, 2012 - Page 2 of 15 This application was heard on January 9, 2012, and adjourned to April 16, 2012 and further adjourned to April 23, 2012. The Board requested that the applicant paint the structural members of the fence. The public hearing was opened on January 9, 2012 and remains open. At the April 23, 2012 meeting the Board discussed extending the time period that the support structures could remain in place. A specific time period was discussed that would allow the erection of the structural members two weeks prior to the first Saturday in May (Kentucky Derby Day) to remain in place through the racing season with removal taking place no later than two weeks after Labor Day (first Monday in September). Keith Kaplan presented the following resolution: IN THE MATTER OF THE APPLICATION OF Racing Restaurants of America 168 Lincoln Avenue Saratoga Springs, NY 12866 Involving the premises at 168 Lincoln Avenue, in the City of Saratoga Springs, New York being tax parcel number 166.77-4-4 in the inside district on the Assessment Map of said City. The appellant having applied for modification of an area variance under the Zoning Ordinance of said City, approved by the Zoning Board of Appeals on June 29, 2011 and filed on July 1, 2011, to permit the installation of a 6.5’ acoustical wall to be installed upon and attached to an existing 8’ high fence, and public notice having been given of a hearing on said request held on various dates including April 23, 2012. Whereas the Board had imposed a condition within that variance specifying the applicant to disassemble the acoustical wall within 14 days of the conclusion of the annual period allowed for outdoor entertainment under the terms of the property’s renewable Special Use Permit, and whereas the applicant’s representative from the firm of Frost Hurff Architects has stated, in the request for modification sent as a letter to the Board on November 28, 2011 that adherence to the condition, due to the fence’s acoustical and structural requirements, combined with the height from the ground, has been found to involve “a major effort to disassemble/remove and to assemble/erect. It is assumed that this annual process will adversely affect the integrity and life of the acoustical material, the structural members and various fastening devices used to assemble the screening structure.” The Board notes the challenges inherent in conforming to the conditions imposed by that motion are significant, and that the condition specifying the takedown and reassembly of the acoustical fence was worded in such a fashion that it could result in the need to take down and reassemble the fence multiple times per year. If that was to occur, it would, in the Board’s view, create an imbalance between benefit enjoyed by the applicant and impact on the character of the neighborhood, as well as physical and environmental impacts on the neighborhood. The Board finds that it would be equitable to all parties to allow the fence to stay in place for the approximately 4.5 to 5 month period annually spanning the time immediately before the running of the Kentucky Derby in early May, and the time following the conclusion of the Saratoga Race Course season on Labor Day. In the Board’s view, having a specified set of dates for installation and takedown of the fence provides certainty and predictability to both the owners and the public. Setting the time specifications does not appear to the Board to unduly impact neighborhood character, nor does it appear to create significant physical or environmental impact. Therefore, I move that this Board modify, as requested by the applicant, the language in the conditions requiring the disassemble of the fence upon the conclusion of the dates noted by the Special Use Permit as referred to in the July 1, 2011 area variance, specifically mentioned in part 2 of that variance resolution, as well as in the first two conditions listed in that resolution, to instead prohibit the fence to be erected until the third Saturday in April, and to require the disassembly of the fence before the third Monday in September on an annual basis. City of Saratoga Springs Zoning Board Minutes – Monday, May 7, 2012 - Page 3 of 15 It should be noted that this modification does not affect the other conditions or requirements set forth in that resolution, including the requirements for the applicant to ensure an annual inspection be performed by the City Engineer or designee, to perform proper maintenance on the screening and support structures to ensure the desired acoustical mitigation is achieved, and for a maintenance plan to be on file with the Building Inspector. Seconded by Gary Hasbrouck. Bill Moore, Chairman asked if there was any further discussion. None heard. VOTE: Bill Moore, Chairman, in favor; Keith Kaplan, Vice Chairman, in favor; Adam McNeill, Secretary, in favor; Gary Hasbrouck, in favor; Skip Carlson, abstain; Shirley Poppel, in favor MOTION PASSES: 5-0-1 3. #2656 WEIBEL AVENUE APARTMENTS, 60 Weibel Avenue, use and area variance to erect wall and freestanding signs; seeking relief for placement above the first floor level of the building for wall and (tenant) signs on the west, east, north and south elevations of the building, relief to permit two wall (tenant) signs on the north façade of the building (an elevation without street frontage), and relief to permit a second freestanding sign where only one is permitted per parcel in the Transect-4 District. SEQRA: Action appears to be a Type II action, and therefore exempt from further SEQRA review. Applicant: Weibel Avenue Apartments, LLC Agent: Sean Corp, Balzer and Tuck Architecture; Brett Balzer, Balzer and Tuck Architecture A brief overview of the project was provided to the Board. The applicant has appeared before the DRC for the requested Advisory Opinion. The DRC has provided a positive advisory opinion. PUBLIC HEARING: Bill Moore, Chairman asked if anyone in the audience wished to comment on this application. Bill Moore, Chairman closed the public hearing at 7:40 P.M. Adam McNeill presented the following resolution for Skip Carlson: IN THE MATTER OF THE APPEAL OF Weibel Avenue Apartments, LLC 18 Division Street, Suite 401 Saratoga Springs, New York 12866 From the determination of the Building Inspector involving the premises at 60 Weibel Avenue, in the City of Saratoga Springs, being tax parcel 166.0-2-3.2 in the outside district of the Assessment Map of said City. City of Saratoga Springs Zoning Board Minutes – Monday, May 7, 2012 - Page 4 of 15  The appellant having applied for a use and an area variance under the Zoning Ordinance of said City, as amended to erect wall and freestanding signs; seeking relief for placement above the first floor level of the building for wall (tenant) signs on the west, east, north and south elevations of the building, relief to permit two wall (tenant) signs on the north façade of the building (an elevation without street frontage) and relief to permit a second freestanding sign where only one is permitted per parcel in the Transect-4 District and public notice having been duly given of hearings on said application held on April 16 and May 7, 2012. As per the submitted plans BE APPROVED for the following reasons: Use Variance Considerations: Two freestanding signs where one is permitted per parcel Two wall (tenant) signs to be placed on a façade without street frontage 1. The applicant has demonstrated that a reasonable financial return on initial investment could not be attained without the additional signage. The Special Use Permit that was issued by the Planning Board in 2009 was for up to 116,000 sq. ft. (in 8 buildings) of residential and commercial uses. As the applicant states, “There are 178 apartments and 24,000 sq. ft. of commercial space”. Only one freestanding sign is permitted on any one parcel regardless of size of lot. The subject property is approximately 12 acres. As the application states, “We feel that one 24 sq. ft. freestanding sign is not sufficient to identify the apartments and potentially 14 commercial tenants on this site”. 2. The applicant has demonstrated that the hardship relating the property is unique and does not apply to a substantial portion of the neighborhood. The application indicates that neighboring properties are not mixed uses; therefore, if these properties have freestanding signs it would only need to identify one or two tenants. In contrast, as the application states, “This parcel has 178 apartments and the potential for 14 commercial tenants”. 3. The applicant has demonstrated that the essential character of the neighborhood would not be altered. The two freestanding signs will be on two different roads and on opposite sides of a three-story building, and as the applicant states, “Rarely will they be visible at the same time”. 4. The alleged hardship is not self-created. The T-4 District encourages a mix of uses. As the application states, “Given the size of the parcel, we were required to provide a substantial amount of commercial space in addition to the apartments”. Area Variance Considerations: Placement of wall sign on the building: Required: Proposed: Total relief requested: Not extend above Above first floor level (“but To allow placement of sign above the first floor level the first floor level remains below the second of the building for a total of 17 tenant signs: of the building floor windows”) 6 on the Weibel Ave. façade (west elevation), 5 on the “Road A” façade (east elevation), 4 on the PBA Rd. façade (south elevation) and 2 on the north elevation. 1. The benefits sought by the applicant cannot be achieved by other means feasible. As the applicant states, “We explored keeping the top of the sign band below the second floor, but that limited the height of any signage to 12”, which we felt was small on a road with a speed limit of 40 mph”. City of Saratoga Springs Zoning Board Minutes – Monday, May 7, 2012 - Page 5 of 15 2. The applicant has demonstrated that granting this variance will not create an undesirable change in the neighborhood character or detriment to nearby properties. This board requested an advisory opinion from the DRC with regard to the variances requested. In response, the DRC issued a favorable advisory opinion stating, “The proposed sign band, while situated partially above the first floor level is architecturally appropriate”, “the addition of all signage on the parking lot elevation is considered appropriate”, and, “the additional freestanding sign is appropriate considering the scale of the site and the current internal street network”. 3. The applicant has demonstrated that the variance will not have a significant adverse physical or environmental effect on the neighborhood or the district. The advisory opinion from the DRC states, “The proposed gooseneck lighting shall be maintained to keep consistency across the building”. 4. The requested relief may be considered substantial at 44% along with signage above the first floor. 5. The applicant’s desire to locate the signs in an area that is not permitted on the building may be considered self- created but this is not necessarily fatal to the application. Seconded by Keith Kaplan. Bill Moore, Chairman asked if there was any further discussion. None heard. VOTE: Bill Moore, Chairman, in favor; Keith Kaplan, Vice Chairman, in favor; Adam McNeill, Secretary, in favor; Gary Hasbrouck, in favor; Skip Carlson, in favor; Shirley Poppel, in favor MOTION PASSES: 6-0 4. #2654 RICHARDS CARRIAGE HOUSE, 73 Union Avenue, area variance to maintain, as converted, the existing detached carriage house (accessory building) as a second principal building on one lot; seeking relief from the minimum front and side yard setbacks for the carriage house, relief from the maximum lot coverage for both principal buildings combined, and from the minimum front and side yard setbacks to required parking spaces in the Urban-Residential-4 District. Applicant: Aime and Thomas Richards Agent: John Hayko, Attorney SEQRA: Action appears to be a Type II action and therefore exempt from further SEQRA review. ADDITIONAL CORRESPONDENCE RECEIVED BY THE BOARD: Hand delivered correspondence from Aime and Thomas Richards, dated May 2, 2012. Correspondence from Ralph and Gail Willner-Giwerc, 29 George Street, dated May 3, 2012. Correspondence from Julie Rogers, 15 George Street, dated May 1, 2012. Correspondence from Linda Wittle, 19 George Street, dated May 1, 2012. PUBLIC HEARING: City of Saratoga Springs Zoning Board Minutes – Monday, May 7, 2012 - Page 6 of 15  Bill Moore, Chairman stated the public hearing remains open. Bill Moore, Chairman asked if anyone in the audience wished to comment on this application. Beverly Lazar Davis, 28 George Street read into the record a petition signed by four families who are concerned regarding the potential adverse impacts from the area variance requested. Nick Gangi, 25 George Street, requested limiting the property to two single family residences. Russ Pittinger, 19 George Street, requested limiting the property to two single family residences. Beth Johansson, 37 George Street, questioned if the conditions go with the ownership or the property. Bill Moore, Chairman stated the conditions do go with the property. Linda Wittle, 19 George Street. The lot is a huge lot. I am actually very happy with the thought of the property being used a two single family dwellings. I am in support of the project. Bill Moore, Chairman closed the public hearing at 7:55 P.M. Gary Hasbrouck presented the following resolution: IN THE MATTER OF THE APPEAL OF Aime and E. Thomas Richards 73 Union Ave Saratoga Springs, New York 12866 from the Building Inspector’s determination for the premises at 73 Union Ave., identified as Tax Parcel Section, 166.69-1- 32 Inside District of said city. WHEREAS, the appellant has applied for multiple AREA VARIANCES for relief from the current City Zoning Ordinance for an existing approved accessory structure to be approved as to a second principal building on one lot in an Urban Residential – 4 zoning district; and public notice having been duly given of a hearing on said application held on April 16th and 23rd and on May 7, 2012. WHEREAS, in consideration of the balance between benefit to the applicant with detriment to the health, safety and welfare of the community, the Board makes the following resolution that the requested AREA VARIANCES for the following relief or lesser dimensions, as described in the submitted application, be APPROVED: Required Existing Proposed Relief Requested Maximum lot coverage-principal 25% 27% 27% 2% or (8% required) buildings Minimum front yard setback: building 25 feet 12.2 feet 12.2 feet 12.8 feet (51%) one (George Street) Minimum side yard setback: building 20 feet 6.2 feet 6.2 feet 13.8 feet (69%) one (north side) City of Saratoga Springs Zoning Board Minutes – Monday, May 7, 2012 - Page 7 of 15 Minimum front yard setback to 25 feet 20 feet 20 feet 5 feet (20%) parking (George Street) Minimum side yard setback to 20 feet 5 feet 5 feet 15 feet (75%) parking (east side) 1) The applicant has demonstrated this benefit cannot be achieved by other means feasible to the applicant. The applicant has elected to apply the UR-4 designation to the entire property under section 240-2.3 of the City’s Zoning Ordinance as confirmed in City Attorney’s letter dated December 22, 2011. The Board acknowledges the accessory structure was in compliance with UR-3 regulations at the time it was built in 2001. Since the structure is pre-existing, the applicant states that “physical re-location of the structure is impractical and cost prohibitive.” Another option explored was to connect the two buildings thereby making one principal building. The applicant received Design Review Commission approval for that option on October 15, 2008. The applicant states that “because of the substantial conditions placed upon the approval, it was later learned that the cost of the connection was, for all practical purposes, prohibitive.” In addressing the side yard setback to parking and the minimum front yard setback to parking, elimination of a parking space was considered by the Board and the applicant. The applicant testified they would be willing to eliminate a parking space in order to reduce the amount of relief requested for the side yard setback variance. The applicant also testified as to certain significant common area improvements which would prevent the repositioning of that parking space or other parking spaces. These improvements included a large fountain and surrounding landscaping which would need to be eliminated or substantially altered in order to accommodate the reduction in variances due to parking. The benefit of having the extra parking is preferred rather than eliminating green space. 2) The applicant has demonstrated that granting this variance will not create an undesirable change in neighborhood character or detriment to nearby properties. UR-4 regulations allow for two principal buildings on one lot. The surrounding neighborhood is characterized by multi-family units and single family homes with accessory structures in close proximity to George Street. Each lot contains frontage on Union Ave with access to the rear of each property from George Street. The applicant has provided the required number of parking spaces which are accessible from George Street. No curb cut is being considered from Union Avenue which is consistent with the conditions of the surrounding properties. The board acknowledges that a proper certificate of occupancy was not obtained by the applicant for the current use of the carriage house. However, since the UR- 4 regulations allow for that usage and considering the intent of the UR-4 zone in the City Zoning Regulations, it would appear that having two principal buildings on this lot, as presented in the plans provided by the applicant, would not impose a detriment to the neighborhood. 3) The relief requested is substantial. Specifically, the minimum side yard setback for the building on the north side is substantial given the % of relief being requested. However, as noted earlier, the building is pre-existing and per the application,” the location of the building in relation to the western boundary line and street line, are nearly identical to other residential structures and out-buildings lying to the east and west of the carriage house.” 4) The applicant has demonstrated this variance will not have an adverse physical or environmental effect on the neighborhood. Per the plans submitted by the applicant, it does not appear any further work involving the covering of any permeable surfaces will be performed. 5) The difficulty may be considered self created. This, however, is not necessarily fatal to the application. City of Saratoga Springs Zoning Board Minutes – Monday, May 7, 2012 - Page 8 of 15 Conditions: The two principal structures shall remain single-family residences to be maintained on one lot with no future subdivision of land. Seconded by Skip Carlson. Bill Moore, Chairman asked if there was any further discussion. Bill Moore, Chairman stated he has a couple of problems. When we have a variance that is essentially the same variance that was requested a number of years ago, we have to address the reason why we feel at this point this variance is applicable and that variance is not. We are basically overturning a prior Zoning Board decision. We haven't addressed that at all and I cannot see why we would overturn a prior Zoning Board Decision or the reason for that. The previous request was to make living space in the carriage house. We are not making this carriage house legal. We are basically saying there can be two principal structures on this lot. Keith Kaplan, Vice Chairman stated in the previous motion the way it was worded before to convert the accessory detached garage building into a second single family residence principal building in a UR-3 and UR-4 District. They at the time were not considering the lot to be one or the other. They were considering the lot to be as it appears on the map to be a split lot. A UR-3 cannot have two principal residences, and we have now under subsequent ruling or decision of the City have determined this lot is 100% UR-4 which does allow for two principal structures, so I believe that is a pretty strong difference. Bill Moore, Chairman stated my other problem is that we have had many carriage houses come before the Board. We have been exceptionally stringent on what we allow for living space, etc. We certainly have not allowed any kind of overnight accommodations. The applicant had ample time and it was his due diligence to discover that this was not a legal living unit or any finish space in it being legal. We are not here to correct a mistake of lack of due diligence. I have a problem in that regard. I am sorry a mistake was made, by the same token we are not here to fix people's mistakes. People buy property, it is up to them to make sure everything is legal. While they may not like the cost or the connection of the two buildings, it is a feasible alternative and our charge here is to approve the least amount of variance possible. I really cannot be in favor of this considering all those things against it and as stringent as we have been against living areas in carriage houses to wipe all that aside because of lack of due diligence. Keith Kaplan, Vice Chairman stated the points that you bring up are solid points. Two things that come to mind upon hearing that is I don't recall other UR-4 applications in my tenure. A lot of UR-3's and UR-2's as well. We do not deal a lot with UR-4. That is one thing that may differentiate it. Union Avenue is critical in terms of aesthetics in this City in terms of approach and what you see there. Having a historic Victorian home with a breezeway jutting out to get to another building will have a visual impact on the neighborhood. Bill Moore, Chairman stated he does not feel this has risen to the level that all the other things can be thrown out to approve this variance. Given the lack of due diligence, given that it was never supposed to be finished in the first place, there is an alternative. I just cannot see going ahead and approving this. I will not put my stamp of approval on this stating just do what you want and then come in and ask for forgiveness and we will okay this and you will be fine. Gary Hasbrouck stated this is now being treated as UR-4. You no longer need the connection between the two buildings because the intent of the UR-4 is to allow and have two principal buildings with single family residences on it. Bill Moore, Chairman asked if there was any further discussion. City of Saratoga Springs Zoning Board Minutes – Monday, May 7, 2012 - Page 9 of 15 None heard. VOTE: Bill Moore, Chairman, opposed; Keith Kaplan, Vice Chairman, in favor; Adam McNeill, Secretary, in favor; Gary Hasbrouck, in favor; Skip Carlson, in favor; Shirley Poppel, opposed MOTION PASSES: 4 -2 5. #2648 UCCELLINI RESIDENCE, 45 Granger Avenue, use variance for construction of a single family residence; seeking relief from the minimum lot area requirement in the Urban Residential-1 District. Applicant: Tom and Rachael Uccellini Agent: Kynan Nigro, Attorney SEQRA: Action appears to be a Type II action, and therefore exempt from further SEQRA review. Adam McNeill, Secretary stated a copy of the executed trust verification from Alice Braim was received. PUBLIC HEARING: Bill Moore, Chairman stated the public hearing remains open. Bill Moore, Chairman asked if anyone would like to speak regarding this application. None heard. ADDITIONAL CORRESPONDENCE RECEIVED BY THE BOARD: Correspondence hand delivered received 04/26/2012 signed with eight signatures Correspondence received from Attorney Michael Englert, dated April 23, 2012. Bill Moore, Chairman closed the public hearing at 8:30 P.M. Keith Kaplan presented the following resolution: IN THE MATTER OF THE APPEAL OF Thomas and Rachel Uccellini 72 Union Ave Apt 15 Saratoga Springs, NY 12866 from the Building Inspector’s determination for the premises at 45 Granger Avenue, alternatively identified as 00 Granger Avenue, and as Tax Parcel Section 166.13, Block 2, Lot 9, Inside District of the City of Saratoga Springs, New York. WHEREAS, the applicant has applied for a Use Variance to create a building lot for future construction of a single-family residence requiring relief from the minimum lot area requirement of the Urban Residential – 1 District; WHEREAS, the Zoning Ordinance requires that area variances which shall affect a change in density shall be applied for and considered as a Use Variance and decided under the criteria for the same, including, “Requests for dimensional City of Saratoga Springs Zoning Board Minutes – Monday, May 7, 2012 - Page 10 of 15  relief from requirements of total lot size which would allow additional permitted units and/or permitted uses” (240-14.4 A.(1)(b)[6][a]; WHEREAS, public notice having been duly given of a hearing on said application held on February 13, 2012 and continued open until the public hearing was closed on May 7, 2012; WHEREAS, the Board makes the following resolution and finding of fact that the requested Use Variance be denied because it fails to meet all four of the required criteria for the granting of such relief: 1. The applicant has not demonstrated that the property cannot realize a reasonable return. The former property owner (Mrs. Braim) purchased the subject property in 1980 for $8,000. The property has a current assessed value of $30,200 with a full market value according to the tax rolls of $36,829. The applicant has provided documentation of taxes paid ($250 to $270 annually from 2008 to present) and estimated maintenance costs ($700 annually since 2008) for the property. The neighbors that own the abutting main parcel (north of the subject parcel), 296 Caroline, provided testimony that they desired to purchase the subject parcel at the time that they purchased the house lot (2009) to maintain the use of the lot as a backyard to the house lot. According to those neighbors, the former owner (Mrs. Braim) then refused to sell the subject parcel. They also stated that they were approached by the former owner (Mrs. Braim) and after that by one of the trustees of the Alice Braim Family Trust in the summer of 2011 to reopen the discussion of purchasing the land. As the neighbor stated to the Board, those negotiations with a member of the trust progressed into a verbal offer to purchase the property for $25,000. According to that neighbor, soon after that discussion took place with Mrs. Braim, the subject parcel was listed for sale. Applicant’s counsel has pointed out that the verbal offer never progressed to a written offer. The applicant has taken the position that even assuming the offer for $25,000 had been accepted, the rate of return would have been 3.76%, which is lower than stock market benchmark return rates. The Board notes that the 3.76% rate may indeed be lower than selected investment benchmarks, but that does not preclude it from being considered “reasonable.” It should be kept in mind that the lot in question is smaller than the minimum size required in the district, and this shortfall reasonably reduces the potential profitability of the lot as an investment. The Board notes that a non-conforming lot, a lot that required an area variance to be buildable even as of the 1980 purchase date by the former owner Mrs. Braim, should not be benchmarked against an investment in readily tradable and marketable securities, or the ownership of a buildable piece of real estate. The Board notes that the $25,000 offer referred to above was verbal, thereby non-enforceable. It does not mean that the offer did not occur or was void, it simply means that this offer lacks the standing as evidence that a written offer would have. The Board will therefore not ignore this offer, but will not base its judgment solely on upon it. The Board must also look upon the potential for return based on what the lot can be used for, if no variance is granted. The lot’s value is in its proximity to three other properties (290 Caroline, 296 Caroline, and 65 Fifth Avenue), and in what it could enable those three property owners to do if they were to purchase the property. In all three cases, the purchase of this lot would greatly enhance the properties to which it would be added, either through larger contiguous yards or, in the case of 290 Caroline, access to Granger Ave. As all three have indicated that they have expressed interest in purchasing the property, the Board finds the owner has the ability to pursue a reasonable return under currently permitted use. It is presumed that the former property owner desired to maximize the profitability of the lot and realized the interest in the vacant lot for residential construction. The former property owner was approached in 2002 to purchase the property for residential development. Documentation was provided that the former owner had purchase contracts in 2010 for $69,000 and 2011 for $77,000, each contingent on the purchaser obtaining the necessary variances for construction of a single-family residence. City of Saratoga Springs Zoning Board Minutes – Monday, May 7, 2012 - Page 11 of 15  While the applicants argue that their purchase contract is $45,000 and the offer to purchase the property by the owners of 296 Caroline was only $25,000, the standard of proof is not “highest and best” use nor is it most profitable use. The board considers a reasonable return could be attained by selling the lot to a neighboring property owner. The lot could be used as it historically has been used, as a backyard, but also could be improved with accessory structures. One additional point on the financial return on the lot, the neighbors have provided testimony that the former owner (Mrs. Braim) utilized the subject parcel for the parking of cars during the thoroughbred racing season and received revenue from that activity. This has not been taken into account in the calculations referred to above received from the applicant; the Board notes this information is difficult if not impossible to document, beyond stated and submitted testimony on the record by neighbors. 2. The applicant has demonstrated that the alleged hardship is unique and does not apply to a substantial portion of the neighborhood. That two different lots improved with houses (65 Fifth and 296 Caroline) used to enjoy the subject parcel as a backyard at separate times of ownership, but was never formally merged with either lot, could be considered unique. 3. The subject parcel has a discrete tax parcel identification number; however, it does not appear that it was ever owned nor used as a separate lot apart from an abutting improved property. Situations where two distinct lots are owned, maintained and used in conjunction is not unique. The Zoning Ordinance states, “The minimum mean width or minimum lot size shall not apply to any lot or lots with an area and/or width of less than that prescribed herein provided that such lot or lots were under different ownership from that of any adjoining land on or before July 6, 1961” (240-2.4 D.). 4. The applicant has not demonstrated that the requested use variance, if granted, would not alter the essential character of the neighborhood. The applicant’s desire is to construct a single-family residence on the lot. Single-family residences are permitted on lots that meet the lot width and area requirements of the district. However, the subject lot is substantially smaller than the district requirements within UR-1: the lot is 5,025 sq. ft., while 12,500 is required for a single-family residence. The applicant argues that the abutting lot (296 Caroline) is of the same dimensions and is improved with a single-family residence, but the latter lot is located in the UR-3 district which permits single-family residences on lots that are a minimum of 6,600 sq. ft. In addition, the house was built around 1878 and therefore is considered a lawful pre-existing non-conforming structure with regard to the current district requirements. A portion of a tax map was provided by the applicant identifying estimated lot areas in the surrounding neighborhood (Exhibit H, Nigro, 4/6/2012). The only lot that is as deficient in area as the subject parcel is the house lot (296 Caroline, again not in the same district despite being proximate). Almost all of the other lots are in the 8,000 sq. ft. range. In contrast to acknowledging a pre-existing non-conforming lot, the approval of this relief would introduce and allow a severely substandard residential lot to be improved that would be inconsistent with the surrounding neighborhood. Introducing additional density into a neighborhood zoned for 12,500 square foot lots, by creating a small building lot between two other small lots, is found by this Board to be adversely impactful on the character of the neighborhood. 5. The alleged hardship is self-created. The applicant states that while the former property owner had the knowledge that the lot was not buildable at the time of purchase (1980), an Area Variance, not a Use Variance, would have been required to build a single-family residence. The Use Variance standard, used for Area Variances that affect density including, “Requests for dimensional relief from requirements of total lot size which would allow additional permitted units and/or permitted uses” (240-14.4 A.(1)(b)[6][a]), was not enacted until 1990. However, the zoning district (UR-1 was R- 1) has not changed nor has the district requirements of UR-1 (formerly R-1) changed since the date of purchase. Area variances then and now would be substantial from the minimum lot area requirement to build on the lot as well as subsequent area variances that would be required to site a principal structure on the lot. Regardless, unless otherwise City of Saratoga Springs Zoning Board Minutes – Monday, May 7, 2012 - Page 12 of 15 authorized, applicants must meet the requirements of the current Zoning Ordinance. In 2003, an application for an interpretation was filed appealing the Building Inspector’s formal determination that a Use Variance would be required to construct a single-family residence on the lot. “According to Section 240-2.4, the minimum lot area (12,500 sq. ft.) applies to this lot, which according to the survey contains only 6,289.62 sq. ft. of land. Since prior to 1961 and up until 1980, this lot was owned in common with the premises at 65 Fifth Avenue, which has a lot area of 8,000 sq. ft. The combined total area of land prior to 1980 was only sufficient (slightly larger than minimum) for one single-family residence”. The appeal was denied, confirming that a Use Variance would be required. A Use Variance was applied for in 2004 and later withdrawn. The Board considers the hardship self-created in that it was the choice of the former property owner (Mrs. Braim) to list the two properties for sale individually. The former property owner has stated in her affidavit dated April 17th, 2012 that she “wanted to include this lot in the sale” of the property at 296 Caroline St. This is contradicted by the fact that the lot was marketed separately, as per the MLS listing from January 2009, which only listed the lot that 296 Caroline is situated on, and referred to the subject lot as “available for purchase.” The previous listing, from July 2008, does indeed refer to the “add’l lot which is included” that, when factored with the home gives “about 334’ frontage on Granger.” The Board finds that the owner made a conscious decision to no longer include the subject parcel in the sale of 296 Caroline, creating the hardship that now exists. Additionally, the Board notes, as stated in the affidavit, from the years 2002 through 2011, that the former owner had made “several attempts to sell the property over the years” as well as her statement earlier in the affidavit that “Since the time that I purchased the property, it was always my understanding that the subject lot at 45 Granger Avenue could be improved with a single-family residence…” If the lot was intended by Mrs. Braim to be a back yard to the 296 Caroline St. house, it would have been consistently marketed as such, and not marketed as a separate, available, and potentially buildable lot for a single-family residence. There was further testimony from other neighbors that they had inquired or discussed with the Trustees or the former owner as to purchasing this land to add to their own proximate holdings, including 65 Fifth Avenue and 290 Caroline. The Board points out the difficulty in this case establishing a common set of facts from the materials submitted by the applicant and the testimony by the neighbors, in that the April 17th, 2012 affidavit by the former owner Mrs. Braim states no offer was made by the current residents of 296 Caroline St., the Brimhalls, to her. She also stated that no formal offers have been made on the property beyond four documented offers that she discloses in her affidavit, an accounting that appears to be at odds with the testimony of the other neighbors named above. However, the Board also notes that Mrs. Brimhall and other neighbors have stated that offers have been made to Mrs. Braim’s son Thomas, who is a Trustee in the Trust that currently owns the property. The Board’s responsibility in granting a variance, whether it is a use variance or an area variance, is as stated in section 240-14.4(B), to grant the minimum variance that will enable reasonable use while avoiding injury to the neighborhood. In the case of a use variance, per section 240-14.4A (2)(b) the Board must “determine whether unnecessary hardship has been shown by the applicant, if the strict application of the Zoning Ordinance is not varied.” The Board notes that if the property owner was to sell the parcel to an adjacent homeowner to expand their land and bring their property size closer to conformity with district requirements, that would be preferable to the creation of a substandard lot. The key concept is avoiding “unnecessary hardship.” In this case, the Board finds that unnecessary hardship was not avoided, but rather self-created, by the owners by the removal of the subject lot from the listing for 296 Caroline. The self created hardship was exacerbated by the purported refusal to consider offers by the neighbors, however the Board finds that these refusals, since the offers were not documented, should be looked upon as reinforcing an already-existing self-created hardship. City of Saratoga Springs Zoning Board Minutes – Monday, May 7, 2012 - Page 13 of 15 The Board concludes that not all of the four required tests for a Use Variance have been met and, therefore, the Board denies the application for a Use Variance. The Board further notes that if the application was to be considered as an area variance, its considerations of the application would be weighed as follows: 1) If the board were to consider the application as an area variance, the benefit sought by the applicant could be achieved by feasible means other than a variance. The owner’s desire to sell the property is apparent. If the property were conveyed to an adjoining property owner to be used as a yard, no relief would be required. If the property were to be sold to an adjoining property owner for construction of accessory structures, it is presumed that the relief required would be less as setbacks corresponding to accessory structures are less than those associated with principal structures. 2) If considered as an area variance, the Board finds the applicant’s proposal, if granted, would produce an undesirable change in the character of the neighborhood, and a detriment to nearby properties due to:  the complete encroachment over setback lines;  lot size variances required both of which would create an injurious degree of proximity to the neighboring properties at 290 Caroline St, 296 Caroline St, and 65 Fifth Ave. The Board also notes the increase in density noted above as being detrimental to neighborhood character; noting as the applicant pointed out, that the neighboring house at 296 Caroline St. in the UR-3 district has the same size lot as the subject lot, and to approve a residence on another lot of the same size would be an avoidable departure from the dimensional goals for the district. A distinction needs to be made between an improvement to an existing non-conforming house on a smaller-than-required lot, and a case like this, where non- conformity can, and in the Board’s opinion, should be avoided. 3)The request for relief would be considered substantial. The minimum lot size in UR-1 is 12,500 sq. ft., while the subject lot is 5,025 sq. ft.; therefore, the relief required would be 7,475 sq. ft. or 60%. As noted above, the dimensions of the lot are 167.5 feet wide and 30 feet deep. The required setbacks to build a principal structure on the lot include minimum front and rear yard setbacks, 30 feet respectively, and the lot is 30 feet total in depth. Therefore, any subsequent area variances required to build would require 100% relief for the front and rear setbacks. 4)The area variance would be considered to have an adverse effect on physical and environmental conditions in the neighborhood and district, in that the current open space called for in the UR-1 district, with a 28% lot coverage for both house and accessory structures, means that approximately 9,000 square feet of open space is called for on district residences. This yard’s size falls so far short of the district requirements, that any open space that would remain, even if the house was of minimal size with no accessory structure, would still result in an unacceptable shortfall in open space required. 5)The Board finds this to be a self-created hardship in that the current owner in 2004, and even the former owner in 1980, purchased this property with a district requirement of 12,500 square foot lot size. This lot required a variance of the same degree at the time of purchase. The board concludes that if the evaluation criteria were that of an area variance, on balance between benefit to the applicant and detriment to the neighborhood and district, the request for relief would also be problematic to attain. Seconded by Shirley Poppel. Bill Moore, Chairman asked if there was any further discussion. Discussion ensued among the Board members concerning the resolution. City of Saratoga Springs Zoning Board Minutes – Monday, May 7, 2012 - Page 14 of 15 VOTE: Bill Moore, Chairman, in favor; Keith Kaplan, Vice Chairman, in favor; Adam McNeill, Secretary, opposed; Gary Hasbrouck, opposed; Skip Carlson, opposed; Shirley Poppel, in favor; MOTION DOES NOT PASS: 3-3 Bill Moore, Chairman discussed procedural requirements concerning the vote. Bill Moore, Chairman stated the Board will amend the resolution and it will be presented at the June 4, 2012 meeting. MOTION TO ADJOURN: There being no further business to discuss, Bill Moore, Chairman adjourned the meeting at 9:30 P.M. Respectfully submitted, Diane M. Buzanowski Recording Secretary Approved: 7/16/12 City of Saratoga Springs Zoning Board Minutes – Monday, May 7, 2012 - Page 15 of 15