Zoning Board of Appeals

ZONING BOARD OF APPEALS MINUTES MONDAY, JUNE 4, 2012 7:00 P.M. CITY COUNCIL ROOM CALL TO ORDER: Bill Moore, Chairman called the meeting to order at 7:06 P.M. SALUTE TO THE FLAG PRESENT: Bill Moore, Chairman; Keith Kaplan, Vice Chairman; Adam McNeill, Secretary; Gary Hasbrouck; Skip Carlson; Shirley Poppel STAFF: Joe Scala, City Attorney, City of Saratoga Springs Susan Barden, Senior Planner, City of Saratoga Springs 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. ADJOURNED ITEMS 5. #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. 6. #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. 7. #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. 8. #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. 9. #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. #2660 CHODOS RESIDENCE, 768 North Broadway, area variance to construct an addition to an existing single family residence; seeking relief from the minimum front yard setback (Fourth Street) and from the maximum lot coverage for the principal building requirement in the Urban Residential-1 District. SEQRA: This appears to be a Type II action, and therefore exempt from further SEQRA review. HISTORY: The Design Review Commission, Historic Review approval for a new porch and rear addition, February 10, 2003. AREA VARIANCE CONSIDERATIONS: REQUIRED EXISTING PROPOSED TOTAL RELIEF REQUESTED Minimum front yard setback 30 feet 14.9 feet 14.9 feet 15.1 feet (50%) Maximum building coverage principal building 20% 21.85% 2.04% Agent: Michael Toohey, Attorney; Olsen Architects Applicant: Laura Chodos Mr. Toohey stated he is representing applicant Laura Chodos. Ms. Chodos is requesting a master bedroom suite addition and an additional garage on the property to accommodate her family who will be moving in with her. The use under the code is acceptable. The applicant will be requesting two variances. The additions to the property will only become visible from the southerly direction. A review of the five tests for an area variance were presented by Mr. Toohey. There is no additional impact on the neighborhood, it is minimal and non intrusive. There is no undesirable change in neighborhood character, and no adverse physical or environmental effect on the neighborhood; and it is self created. Mr. Toohey stated there is correspondence from the neighbors who are the most impacted by this addition. The Willard's the neighbors across 4th Street, submitted correspondence and are agreeable with the addition, and in favor of the application. The Lewis', via an email to Laura Chodos discussed they are in favor of this application. Peter Martin, a neighbor, submitted a letter in support of the application. PUBLIC HEARING Bill Moore, Chairman opened the public hearing at 7:32 P.M. Bill Moore, Chairman asked if anyone in the audience wished to comment on this application. None heard. Adam McNeill, Secretary read correspondence received by the Zoning Board of Appeals. William Willard, 832 North Broadway, Saratoga Springs, New York in favor of the application. Tom and Jill Lewis email to Laura Chodos stating they are in favor of the application, June 4, 2012 Peter Martin, 101 Bryan Street, Saratoga Springs, New York in favor of the application, May 25, 2012 The public hearing will remain open. The Board did not request any additional information from the applicant. Bill Moore, Chairman stated the Board will render its decision at the next Board meeting on June 25, 2012. 2. #2661 HAYNES RESIDENCE, 152 Grand Avenue, area variance to construct an addition to an existing single-family residence and to construct a detached garage with habitable space on the second-floor; seeking relief from the minimum front and side yard setback requirements and to exceed the defined use of a garage in the Urban Residential-3 District. City of Saratoga Springs Zoning Board Minutes – Monday, June 6, 2012 - Page 2 of 10 Applicant: Jonathan Haynes AREA VARIANCE CONSIDERATIONS: REQUIRED EXISTING PROPOSED TOTAL RELIEF REQUESTED Minimum front yard setback 10 feet 0 feet 0 feet 10 feet (100%) Minimum side yard setback 4 feet 0 feet 0 feet 4 feet (100%) Mr. Haynes stated he is proposing to construct an addition to the single family residence. He is proposing to extend the plate height of the second floor, as well as an addition on the backside toward the rear of the property of the existing two story portion of the house. He will not be furthering the existing non conforming status of the structure. The addition is all conforming within zoning ordinances. The garage will be a photo and architecture studio and furniture workshop. A gas fireplace will be installed. There is a bathroom on the first floor of the garage. PUBLIC HEARING Bill Moore, Chairman opened the public hearing at 7:40 P.M. Bill Moore, Chairman asked if anyone in the audience wished to comment on this application. Andrew Bogdan, Beekman Street, stated he and his wife are support of the project. This will provide privacy for the them. Bill Moore, Chairman stated this is a fairly straight forward application. There were no requests for additional information from the Board. Bill Moore, Chairman, stated there will be a decision rendered at the next Board meeting on June 25, 2012. OLD BUSINESS: 3. #2659 AMIN ADDITION, 31 Myrtle Street, area variance to construct an addition to an existing office building; seeking relief from the minimum front yard setback requirement in the Office Medical Hospital Business District. SEQRA: Action appears to be a Type II action, and therefore exempt from further SEQRA review. A Use and Area Variance for an addition was previously approved on October 15, 2012. AREA VARIANCE CONSIDERATIONS: REQUIRED EXISTING PROPOSED TOTAL RELIEF REQUESTED Minimum front yard setback 40 feet 30 feet 10 feet 20 feet (67%) Minimum percent to remain permeable 30% 20% 18% 12% (40%) PUBLIC HEARING: Bill Moore, Chairman asked if anyone wished to comment on this application. None heard. City of Saratoga Springs Zoning Board Minutes – Monday, June 6, 2012 - Page 3 of 10 Bill Moore, Chairman closed the public hearing at 7:43 P.M. Adam McNeill presented the following resolution. IN THE MATTER OF THE APPEAL OF #2659 AMIN ADDITION 31 MYRTLE STREET SARATOGA SPRINGS, NY 12866 from the determination of the Building Inspector involving the premises at 31 Myrtle Street, in the City of Saratoga Springs, New York being Tax Parcel Section 165.41 Block 2 Lot 39 in the Office Medical Hospital Business District (OMHBD) of the City of Saratoga Springs. Whereas, the appellant having applied for an area variance under the Zoning Ordinance for minimum front yard setback minimum percent to remain permeable in the OMHBD with public notice having been given of a hearing on said application held on the 21st of May, and 4th of June, 2012. In consideration of the balance between benefit to the applicant with detriment to the health, safety and welfare of the community, I move that the following area variances for the following amounts of relief or lesser dimensions, as described in the application and submitted plans, be APPROVED: TYPE REQUIRED EXISTING PROPOSED RELIEF REQUESTED Minimum front yard 30 feet 30 feet 10 feet 20 feet (67%) setback Minimum % to 30% 20% 18% 12% remain permeable 1. The applicant has demonstrated this benefit cannot be achieved by other means feasible. The applicant did initially consider placing the addition on the side of the building, however, placing the addition in the front of the building is the most efficient in allowing visitors to park in both parking lots and access the building. 2. The applicant has demonstrated that granting this variance will not create an undesirable change in neighborhood character or detriment to nearby properties as the proposed addition, while encroaching into the front yard setback, may, architecturally improve the appearance of existing office building. 3. The relief requested may be considered substantial; however, the existing site is preexisting, nonconforming. With regard to the percent to remain permeable (18%), the proposed addition would reduce the site permeability by 2% more than what currently exists. 4. The variance will not represent a significant adverse physical or environmental effect on the neighborhood or district as the access to this lot and to existing parking would remain the same. 5. The alleged difficulty may be considered self-created in that the applicants desire to place the proposed addition in an area that would not meet the setback requirements. Seconded by Gary Hasbrouck Bill Moore, Chairman asked if there was any further discussion. City of Saratoga Springs Zoning Board Minutes – Monday, June 6, 2012 - Page 4 of 10 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. #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. Bill Moore, Chairman provided some background information regarding this application. This application was heard at the February 13, 2012 meeting, the public hearing was opened and the item was adjourned to March 5, 2012. The board asked the applicant to provide additional information with regard to the lack of reasonable return on the property including documentation from the realtor of how and when the property was listed for sale. The applicant provided additional information on April 6, 2012. The application was heard on April 16, 2012 and adjourned to April 23, 2012. Additional information was requested; including an original signed affidavit from Mrs. Braim and the previous contract of sale with Mr. and Mrs. Hollowood. Information was provided by applicant's counsel on April 19, 2012. The application was heard on April 23, 2012 and adjourned to May 7, 2012. The board requested documentation from the trustees indicating that they have reviewed the contract of sale and are in agreement with its terms or a portion of the trust document that authorizes the former owner to enter into a purchase contract and/or transfer the property. The information was provided on May 4, 2012. At the May 7, 2012 meeting the public hearing was closed and a motion to deny the application was made and failed to pass 3-3. The board adjourned the application to June 4, 2012. SEQRA Action appears to be a Type II action, and therefore exempt from further SEQRA review. DISCLOSURE Keith Kaplan, Vice Chairman stated on May 7, 2012 he was in attendance at a public function and did encounter several involved parties from this application. No communication regarding this application was discussed, therefore there is no need for recusal. Applicant: Rachael and Thomas Uccellini PUBLIC HEARING: Bill Moore, Chairman stated the public hearing is closed. Gary Hasbrouck 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 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; City of Saratoga Springs Zoning Board Minutes – Monday, June 6, 2012 - Page 5 of 10 WHEREAS, the Zoning Ordinance requires that area variances which shall affect a change in 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]; shall be applied for and considered as a Use Variance and decided under the criteria for the same. 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 findings of fact that the requested Variance be approved because it meets all four of the required criteria for the granting of such relief: 1. The applicant has demonstrated that the property cannot realize a reasonable return. As the applicant has noted, the property was purchased by the former owner, Mrs. Braim, in 1980, 10 years before the change to the zoning code requiring, in section 240-14.4(A)(1)(6), a use variance for any request for an area variance affecting a change in density including requests for dimensional relief from requirement of total lot size allowing additional permitted units. Mrs. Braim purchased the subject property in 1980 for $8,000 and transferred ownership to The Alice Braim Family Trust in 2004, while retaining a life estate in the property and therefore her intentions and the conditions in place as of the 1980 purchase are relevant both for determining reasonable return as well as for self-created hardship, discussed below. Mrs. Braim’s life estate status was documented in a statement dated May 7, 2012, signed by Trustee Timothy Braim. Mrs. Braim, in a sworn affidavit dated April 17th, 2012 said, “Since the time 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, without the necessity of having to apply for and be approved for a use variance…” The applicant cites numerous attempts to sell the property for single family residence development, in 2002, two in 2010, and the one currently being pursued by Mr. and Mrs. Uccellini. These offers were valued at $70,000, $69,000, $67,000 and the current one for $45,000. The first offer was not consummated and a use variance not pursued, after the Board issued an interpretation affirming the applicability of section 240-14.4(A)(1)(6), filed April 20, 2004. Purchase offers have been documented for the latter three offers. There have been no documented offers on the property without a variance requirement. The applicant has noted that the taxes and lawn care costs totaled $7,665 over the period from 2004-2011 according to the former owner’s affidavit. This total does not include taxes paid by the former owner (Mrs. Braim) for the 24 year period from 1980-2003 as per narrative of the applicant. Tax receipts have been provided to the Board. Lawn maintenance receipts are not available; however a signed statement dated 3/15/12 notes that mowing has taken place twice per month. 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. The lot could be used as it historically has been used, as a backyard, but also could be improved with accessory structures. However, while all three have indicated that they have expressed interest in purchasing the property, the Board notes that none have provided evidence of a documented purchase offer. The Board does note that the neighbors that own the abutting main parcel (north of the subject parcel), 296 Caroline, provided statements 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 declined to sell the subject parcel. They also stated that they were approached by the former owner (Mrs. Braim) and City of Saratoga Springs Zoning Board Minutes – Monday, June 6, 2012 - Page 6 of 10  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. While this does not mean that the offer did not occur or was void, it does mean that this offer lacks the standing as evidence that a written offer would have. One additional point on the financial return on the lot, the neighbors have provided statements 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 statements 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. The subject parcel has a distinct 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 are 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.). Since the subject lot was under common ownership with an adjoining parcel before 1961, the exemption available under this section of the Zoning Ordinance does not apply in this case. 3. The applicant has demonstrated that the requested use variance, if granted, would not adversely impact the essential character of the neighborhood. The applicant’s desire is to construct a single-family residence on the lot. The applicant notes that the single-family home contemplated would be similar in size to the homes in the neighborhood, and the exterior characteristics will blend and maintain the integrity of surrounding homes in the neighborhood. The Board notes 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. However, the Board also notes that the neighboring property at 296 Caroline St. in the UR-3 district, includes a single-family home on an exact same sized and shaped lot, under an allowed pre-existing non-conforming condition. Neighborhood impact has been discussed extensively in public hearings in which a number of neighbors have indicated opposition to the project, as well as through written statements received from neighbors in favor of the project. In consideration of the size of the lot and the disparity between the proposal and the district requirements, as well as in terms of setting precedent, it remains the Board’s priority to avoid where possible creating substandard lots inconsistent with the surrounding neighborhood. In this case, the Board notes the proximity to the UR-3 district and the identical lot size and shape of the neighboring property as the determining factor in concluding no adverse impact. 4) The alleged hardship is not self-created. As noted above, the applicant states that while the former property owner had the knowledge that the lot required an area variance at the time of purchase (1980), a use variance would not City of Saratoga Springs Zoning Board Minutes – Monday, June 6, 2012 - Page 7 of 10  have been required to build a single-family residence. That standard was not enacted until 1990, ten years after Mrs. Braim’s purchase. In 2004, the Board’s opinion on the applicability of that standard was issued pursuant to a request by a prospective buyer. The Board was not asked to rule on a use variance at that time, and no ruling for or against a variance has ever been made by this board on the subject property. The Board notes that a variance was applied for in 2004 and later withdrawn. The Board also notes that Mrs. Braim listed the subject property and the adjacent property at 296 Caroline St. for sale individually. Mrs. Braim 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. However, 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, refers to the “add’l lot which is included” that, when factored with the home gives “about 334’ frontage on Granger.” The Board notes that Mrs. Braim in her capacity of possessing a life estate in the property made a decision to no longer include the subject parcel in the sale of 296 Caroline and reverted to the previous position of marketing the property as a separate, available, and potentially buildable lot for a single-family residence. While the sale of the two lots together would have taken the issue of what to do with the subject property off the table, it was not guaranteed that the combined properties would eventually sell. The decision to not take the opportunity to market the properties together perpetuated but did not create the hardship on the subject property, a hardship that, for use variance purposes started once the use variance requirement was added to the City Zoning Code in 1990. Mrs. Braim purchased a property in 1980 that did not conform with district requirements at that time, and would have required an area variance. However, the Board finds that to be a separate matter, to be weighed as one of five considerations in an area variance, not fatal to an area variance when viewed on its own. As noted above, there were further statements 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 296 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 statements made 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 statements 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 Timothy, who is a Trustee in the Trust that currently owns the property. The Board notes that those offers from neighbors for permitted uses were indeed not documented as written purchase offers, and that it cannot be formally established that the property could have been put to permitted use but for the actions of the owner. Based on that, the Board finds that self-creation did not occur. The Board concludes that all of the four required tests for a Variance have been met and, therefore, the Board approves the application for a Variance. Note: The board notes that an area variance will be needed based on the dimensions of the property, with details of the variance request to be known upon the submission of plans and the determination of those details by the Building Inspector. Seconded by Adam McNeill City of Saratoga Springs Zoning Board Minutes – Monday, June 6, 2012 - Page 8 of 10 Discussion ensued among the Board regarding the resolution presented. VOTE: Bill Moore, Chairman, opposed; Keith Kaplan, Vice Chairman, opposed; Adam McNeill, Secretary, in favor; Gary Hasbrouck, in favor; Skip Carlson, in favor; Shirley Poppel, opposed MOTION FAILED 3-3 The Board recessed at 9:05 P.M. The Board reconvened at 9:20 P.M. Bill Moore, Chairman stated the Board has conferred with counsel, the attorney for the applicant only need to make a request for an extension. We can grant an extension without it being in writing. There are no meetings in August at all. Discussion ensued among the Board members. Bill Moore stated we are willing to grant the extension until September 24, 2012, this is approximately 70 days. This is a mutual agreement between the Board and the applicants. There is no limitation to the number of extensions permitted. Adam McNeill made a motion to grant an extension to application #2648 Uccellini Residence, with a deadline of September 24, 2012. Seconded by Skip Carlson VOTE: Bill Moore, Chairman, in favor; Keith Kaplan, Vice Chairman, in favor; Adam McNeill, in favor; Gary Hasbrouck, in favor; Skip Carlson, in favor; Shirley Poppel, in favor MOTION PASSES: 6-0 APPROVAL OF MINUTES: Adam McNeill made a motion to approve the minutes of April 16, 2012 meeting as printed. Seconded by Gary Hasbrouck VOTE: Bill Moore, Chairman, Keith Kaplan, Vice Chairman, in favor; Adam McNeill, Secretary, in favor; Gary Hasbrouck, in favor; Skip Carlson, in favor; Shirley Poppel, abstained. MOTION PASSES: 5-0-1 Keith Kaplan, Vice Chairman made a motion to approve the minutes of the April 23, 2012 meeting as submitted. Seconded by Adam McNeill, Secretary VOTE: Bill Moore, Chairman, Keith Kaplan, Vice Chairman, in favor; Adam McNeill, Secretary, in favor; Gary Hasbrouck, in favor; Skip Carlson, in favor; Shirley Poppel, in favor City of Saratoga Springs Zoning Board Minutes – Monday, June 6, 2012 - Page 9 of 10  MOTION PASSES: 6-0 Adam McNeill, Secretary, made a motion to accept the minutes of the April 23, 2012 Joint Land Use Board Meeting minutes as submitted. Seconded by Gary Hasbrouck VOTE: Bill Moore, Chairman, 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 MOTION TO ADJOURN: Keith Kaplan made a motion to adjourn Seconded by Gary Hasbrouck 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 Bill Moore, Chairman adjourned the meeting at 9:25 P.M. Respectfully submitted, Diane M. Buzanowski Recording Secretary Approved 7/16/12 City of Saratoga Springs Zoning Board Minutes – Monday, June 6, 2012 - Page 10 of 10