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HomeMy WebLinkAbout2011-08-02 - Zoning Board of Appeals Meeting Minutes VILLAGE OF RYE BROOK 938 King Street Zoning Board of Appeals August 2, 2011 Meeting at 8:00 p.m. AGENDA 1) #11-627 AVENTURA REALTY CORP. / STEVEN LINDER (Adjourned from June 7, 2011) 558 Westchester Avenue Legalize the existing commercial office use 2) #11-637 MR. & MRS. STEVEVN ERENFRYD 64 Rock Ridge Drive Legalize existing in-ground swimming pool and pool patio, and converted two-car garage to one-car garage with finished storage room in 2nd bay. 3) #11-633 RABI & BABITA BURATHOKI 29 Lincoln Avenue Construct a partial second-story addition; new front portico; rear one-story addition 4) Approval of May 3, 2011, June 7, 2011, and July 5, 2011 Zoning Board Summaries BOARD: Don Moscato, Chairman Steve Berger Michele Fredman Andrew Kaminsky Joel Simon STAFF: Michael Izzo, Building Inspector Jennifer Gray, Esq., Village Counsel Fred Seifert, Public Access Coordinator Paula Patafio, Meeting Secretary Zoning Board of Appeals August 2,2011 Page 1 Mr. Don Moscato, Chairman, welcomed everyone to the August 2, 2011 Zoning Board of Appeals meeting. He called the meeting to order and introduced Village Staff and Counsel. He noted that there was a full complement of the Board in attendance. Mr. Moscato asked that individuals speak at the podium, state their names, application, position, and nature of the variance. He called for the first matter on the agenda: 1) #11-627 AVENTURA REALTY CORP. / STEVEN LINDER (Adjourned from June 7, 2011) 558 Westchester Avenue Legalize the existing commercial office use Mr. Moscato noted that Mr. Linder and/or his representatives were not in attendance. He called for a consensus of the Board regarding this issue. This was the second "no show" for this applicant. The application was before the Board in June; he did not appear for the July meeting and again did not contact the Board or appear for this meeting. There were two avenues that could be taken. The application could be denied outright because of the lack of information to demonstrate compliance with the variance standard, despite the Board's request for such information. The second option would be to dismiss the application without prejudice. Jennifer Gray, Esq., Village Counsel, suggested that the matter could be adjourned to the end of the meeting in case the applicant was running late. She noted that the denial of the application has more finality. She also noted that violations have been issued, but no cease and desist order has been issued. Mr. Michael Izzo, Building Inspector, stated that if the matter is removed from the Zoning Board's agenda the Building Department can move forward with additional enforcement if necessary. The Village Code does not preclude a re-filing for either option, however, a new application would have to have some substantial difference. Attorney Gray clarified the difference between the options. She noted that a dismissal speaks more to procedure; for example a failure to appear. Whereas a denial speaks more to the merits of the application, for example all of the evidence has been weighed and the Board decided that the application does not meet the specifications in the Village Code. Ms. Michele Fredman noted that every meeting of the Zoning Board is a public hearing, and that the applicant had opportunities to present additional information. Residents were notified and were in attendance at all meetings. Mr. Linder addressed the Board in June but did not present any substantive information or respond to requests made by the Board for additional information. Zoning Board of Appeals August 2,2011 Page 2 After some discussion of taking the matter out of order to give the applicant extra time to appear, the Board proceeded when Attorney Gray noted that the Board of Trustees has final approval authority for the Special Use Permit. After a decision has been made by the Zoning Board, the matter would go back before the Board of Trustees for a decision on the Special Use Permit. Mr. Moscato noted that there were residents in attendance that wished to address this application. The matter was noticed in the newspaper. He called for anyone wishing to address the Board in favor or in opposition to the application. Sarah Marshal of 547 Westchester Avenue, the property across the street from the applicant's, addressed the Board along with Danielle Green, of 545 Westchester Avenue. Both women noted that the concern is the parking. Although the parking lot is behind the building, the clients do not use that lot. Their parking lot is insufficient. They also noted that the office is also open on the weekend. Ms. Marshal stated that overflow parking occurs on Westchester Avenue, and this is dangerous and on a very busy portion of the road. It was noted that no sign was posted informing residents of the meeting. Mr. Joel Simon stated that the information initially submitted by the applicant was insufficient to grant the variances and the applicant did not respond to the Zoning Board's request for additional information. Mr. Moscato reviewed the factors that need to be considered when approving use variances. There needs to be financial statements demonstrating an inability to realize a reasonable return on the investment if the property is put to a permitted use, and the applicant has not offered this information. The second factor has to do with impact to the applicant in the form of the hardship. This is a commercial area and clearly the hardship is self-created. No information regarding the environmental impact was submitted. Another factor deals with the character of the neighborhood. This application clearly affects the neighborhood because there are already quite a number of cars on this roadway. There is a parking issue here and if clients from the companies located in this building are going to park on the street, then there is a problem and effect. Mr. Moscato noted that the decision made by the Board is being based clearly on the items that need to be present in order to support a variance application. Attorney Gray pointed out that there were three variances being requested. There is a use, parking, and access variance requested for the application. Mr. Izzo noted that the newly installed non-conforming sign was going to be removed and a Zoning Board of Appeals August 2,2011 Page 3 conforming sign was going to be installed. The sign is definitely still there. He suggested taking each variance separately. The public portion of the hearing was closed and the Board began deliberation. The Board discussed the application, including the factors listed in New York State law and the Village Code. They considered all of the criteria. They discussed financial hardship, which is self-created; the amount of parking needed in order to meet the Village Code's requirement; the size of the variances, and the effect on the character of the neighborhood. It was noted that the applicant has proposed seven parking spaces, where twelve are required. The applicant has requested access via Division Street. It was noted that this property is unique in that the only possible way to access the parking area is through Division Street. If this variance was approved it would not apply to other properties in this area. This use of the parking area has been in existence for many years. Attorney Gray noted that the Board could waive the need for the sign notification. On a motion made by Ms. Fredman, and seconded by Mr. Berger, the sign notification requirement was waived. Mr. Moscato called the roll: Part 1: Steven Berger Voting Aye Michele Fredman Voting Aye Andrew Kaminsky Voting Aye Joel Simon Voting Aye Don Moscato, Chairman Voting Aye The sign notification requirement was waived, and the Board continued with its deliberation. After reviewing all of the conditions for each of the variances, Mr. Moscato read the following resolution: Zoning Board of Appeals August 2,2011 Page 4 RESOLUTION WHEREAS, application has been made to the Zoning Board by Aventura Realty Corporation/Steven Linder for a use variance to allow four (4) additional professional persons to occupy the premises, an off-street parking variance for five (5) off-street parking spaces, and a variance to permit the existing office use to provide access to parking from Division Street rather than from Bowman Avenue or Westchester Avenue as required, in connection with the proposed legalization of the existing commercial office use, on property located at 558 Westchester Avenue, in an R2F zoning district on the south side of Westchester Avenue, approximately 110 feet from the intersection of Division Street and Westchester Avenue. Said premises being known and designated on the tax map of the Village of Rye Brook as Parcel ID #135.83-1-44; and WHEREAS, the proposed action is a Type II action pursuant to the New York State Environmental Quality Review Act and, accordingly, no further environmental review is required; and WHEREAS a duly advertised public hearing was held on June 7, 2011 at which time all those wishing to be heard were given such opportunity, HOWEVER, THE Applicant's professional consultant was not available to represent the applicant and accordingly an adjournment to the July 5, 2011 meeting was requested; and WHEREAS, the Applicant did not appear for the July 5, 2011 meeting and did not request an adjournment; and WHEREAS, on July 5, 2011, the Board voted to adjourn the public hearing to August 2, 2011 at which time the public hearing was continued and all those wishing to be heard were given such opportunity, however, the applicant failed to appear for the August 2, 2011 meeting and did not request and adjournment; WHEREAS the Board, from the application, after reviewing the premises and neighborhood concerned and upon considering each of the factors set forth at Section 250-13(G)(b)[2][a]-[d] of the Rye Brook Code finds with respect to the requested use variance: 1) The Applicant has not presented sufficient competent financial evidence to adequately demonstrate it cannot realize a reasonable return or that any such lack of return is substantial; 2) The alleged hardship relating to the property is not unique to the property, rather it applies to a substantial portion of the district or neighborhood; 3) The requested variance has negatively effected the character of the neighborhood and will continue to do so if approved and; 4) The alleged hardship has been self-created; and WHEREAS the Board, from the application, after reviewing the premises and neighborhood concerned and upon considering each of the factors set forth at Zoning Board of Appeals August 2,2011 Page 5 Section 250-13(G)(b)[2][a]-[e] of the Rye Brook Code finds with respect to the requested parking variance: 1) The requested variance will have an adverse impact on the character of the neighborhood; 2) The benefit sought by the Applicant cannot be achieved by another method feasible for the Applicant to pursue, that does not require a variance; 3) The requested variance is substantial; 4) The requested variance will have an adverse impact on the physical or environmental conditions of the neighborhood; 5) The Applicant's difficulty is self created; and WHEREAS the Board, from the application, after reviewing the premises and neighborhood concerned and upon considering each of the factors set forth at Section 250-13(G)(b)[2][a]-[e] of the Rye Brook Code finds with respect to the access variance: 1) The requested variance will not have an adverse impact on the character of the neighborhood; 2) The benefit sought by the Applicant cannot be achieved by another method feasible for the Applicant to pursue, that does not require a variance; 3) The requested variance is not substantial; 4) The requested variance will have an adverse impact on the physical or environmental conditions of the neighborhood; 5) The Applicant's difficulty is self created; and NOW, THEREFORE, BE IT RESOLVED that the said application for a use variance is hereby denied; said application or a parking variance is hereby denied; and said application for an access variance is hereby granted. DATED: August 2, 2011 Don Moscato, Chairman Mr. Moscato called the roll: Part 1: Steven Berger Voting Nay Michele Fredman Voting Nay Andrew Kaminsky Voting Nay Joel Simon Voting Nay Don Moscato, Chairman Voting Nay Variance denied zero ayes, five nays. Zoning Board of Appeals August 2,2011 Page 6 Part 2: Steven Berger Voting Nay Michele Fredman Voting Nay Andrew Kaminsky Voting Nay Joel Simon Voting Nay Don Moscato, Chairman Voting Nay Variance denied zero ayes, five nays. The Board had difficulty with whether or not the parking was self-created or not. Part 3: Steven Berger Voting Aye Michele Fredman Voting Aye Andrew Kaminsky Voting Aye Joel Simon Voting Nay Don Moscato, Chairman Voting Aye Variance approved four ayes and one nay Zoning Board of Appeals August 2,2011 Page 7 Zoning Board of Appeals August 2,2011 Page 8 Zoning Board of Appeals August 2,2011 Page 9 Zoning Board of Appeals August 2,2011 Page 10 2) #11-637 MR. & MRS. STEVEN ERENFRYD 64 Rock Ridge Drive Legalize existing in-ground swimming pool and pool patio, and converted two-car garage to one-car garage with finished storage room in 2nd bay. Mr. Andrew Kaminsky noted that after the June, 2001 Zoning Board of Appeals meeting he realized he had a conflict of interest with the application and should have recused himself at that time. Therefore, he is now recusing himself from any rehearing of that application and from the Board's consideration of the Erenfryd's new application. Attorney Gray noted that a legal memo was submitted to the Board. The applicant was asked to return to the Zoning Board of Appeals for reconsideration of the variances granted at the June 2011 meeting. On a motion made by Steve Berger, and seconded by Michele Fredman, the matter was reopened for discussion. Mr. Moscato called the roll: Steven Berger Voting Aye Michele Fredman Voting Aye Andrew Kaminsky Recused Joel Simon Voting Aye Don Moscato, Chairman Voting Aye Mr. Erenfryd, the applicant, was in attendance and prepared to answer any questions. It was noted that in order to have the variances approved there must be at least three affirmative votes. Mr. Moscato stated that the Board would revisit the variances required. There is no new information with respect to the pool application. Everything from the previous meeting is included in the record for this evening's meeting. Mr. Moscato called for members of the public wishing to address the Board in support or opposition. There being no one, he turned to the Board for comments. The Board began deliberation. Zoning Board of Appeals August 2,2011 Page 11 Ms. Fredman stated she would support an affirmance of the variance granted at the June meeting, with the conditions that were applied. Attorney Gray summarized the resolution. Mr. Moscato read the following resolution in connection with the swimming pool and pool patio: RESOLUTION WHEREAS, application has been made to the Zoning Board of Appeals by Mr. & Mrs. Steven Erenfryd for 19 foot rear yard variance for a swimming pool and a 6 foot rear yard setback variance for a patio, in connection with the proposed legalization of an existing in-ground swimming pool and pool patio, on property located at 64 Rock Ridge Drive, in an R-10 zoning district on the east side of Rock Ridge Drive, approximately 280 feet from the intersection of Acker Drive and Rock Ridge Drive. Said premises being known and designated on the tax map of the Village of Rye Brook as Section: 135.36-1-17; and WHEREAS a duly advertised public hearing was held on June 7, 2011 at which time all those wishing to be heard were given such opportunity; and WHEREAS the proposed action is a Type II action pursuant to the New York State Environmental Quality Review Act and, accordingly, no further environmental review is required; and WHEREAS the Board, from the application, after reviewing the premises and neighborhood concerned and upon considering each of the factors set forth at Section 250-13(G)(b)[2][a]-[e] of the Rye Brook Code finds: 1) The requested variances will not have an adverse impact on the character of the neighborhood; 2) The benefit sought by the applicant cannot be achieved by another method, feasible for the applicant to pursue, that does not require a variance; 3) The requested variances are substantial; 4) The requested variances will not have an adverse impact on the physical or environmental conditions in the neighborhood; and 5) The applicant's difficulty is not self-created WHEREAS, on June 7, 2011 the Board granted the requested variances on the following conditions: 1) In the event the Applicant does not obtain a License Agreement from the Board of Trustees which permits portions of the pool patio and pool fence to encroach upon Village property, this variance shall be null and void; and 2) In the event the License Agreement is no longer in effect, the variances shall be null and void; and Zoning Board of Appeals August 2,2011 Page 12 WHEREAS, following the June 7, 2011 approval of the requested variances a member of the Board learned of a conflict of interest which would have required recusal; and WHEREAS, the Board member with a conflict of interest has recused himself from further consideration of this application; and WHEREAS, upon a motion by Steve Berger for a rehearing of the application, seconded by Michele Fredman, the Board unanimously agreed to rehear the application; and WHEREAS, a duly advertised public hearing was held on August 2, 2011, at which time all those wishing to be heard were given such opportunity; and WHEREAS the Board, from the application, after reviewing the premises and neighborhood concerned and upon considering each of the factors set forth at Section 250-13(G)(b)[2][a]-[e] of the Rye Brook Code finds: 1) The requested variances will not have an adverse impact on the character of the neighborhood; 2) The benefit sought by the applicant cannot be achieved by another method, feasible for the applicant to pursue, that does not require a variance; 3) The requested variances are substantial; 4) The requested variances will not have an adverse impact on the physical or environmental conditions in the neighborhood; and 5) The applicant's difficulty is not self-created NOW, THEREFORE, BE IT RESOLVED, that the June 7, 2011 approval of said application is hereby affirmed with the same conditions, namely; 1) In the event the Applicant does not obtain a License Agreement from the Board of Trustees which permits portions of the pool patio and pool fence to encroach upon Village property, this variance shall be null and void; and 2) In the event the License Agreement is no longer in effect, the variances shall be null and void; and DATED: August 2, 2011 Mr. Don Moscato, Chairman Mr. Moscato called the roll: Steve Berger Voting Aye Michele Fredman Voting Aye Andrew Kaminsky Recused Joel Simon Voting Aye Don Moscato Voting Aye The resolution was approved by a vote of four (4) ayes, and zero (0) nays, and one (1) abstention. Zoning Board of Appeals August 2,2011 Page 13 Zoning Board of Appeals August 2,2011 Page 14 Zoning Board of Appeals August 2,2011 Page 15 Zoning Board of Appeals August 2,2011 Page 16 Zoning Board of Appeals August 2,2011 Page 17 Mr. Moscato asked Mr. Erenfryd to address the Board. The applicant is applying for a variance to allow unenclosed parking within 25 feet of the front lot line. The appearance of the outside of the garage has not been changed, however, a wall was constructed behind the garage door and a storage area was created. Mr. Erenfryd noted that there is no heating or air conditioning in the garage. Mr. Moscato noted that all of the houses on Rock Ridge Drive have a relatively short driveway. Variances are granted in perpetuity on the property and this house is up for sale. The new owners will reap the benefit of the variance. If the new owner decides that they would prefer the garage parking, then it would undo the variance if made a condition of the approval. Mr. Erenfryd noted that there is no basement and there is no other storage area in this home. The way the garage has been converted there is now useable space. From the street it looks like a garage. There is plenty of room to park the additional car in the driveway. Mr. Moscato called for members of the public wishing to address the Board in support or opposition to this application. There being no one, he called for a motion to close the public portion of the hearing. On a motion made by Steve Berger, and seconded by Michele Fredman, the public portion of the hearing was closed and the Board began deliberation. Mr. Moscato called the roll: Steven Berger Voting Aye Michele Fredman Voting Aye Andrew Kaminsky Recused Joel Simon Voting Aye Don Moscato, Chairman Voting Aye Mr. Moscato read the following resolution in connection with the front yard setback: Zoning Board of Appeals August 2,2011 Page 18 RESOLUTION WHEREAS, application has been made to the Zoning Board of Appeals by Mr. & Mrs. Steven Erenfryd for 12 foot front yard setback variance for unenclosed off-street parking, in connection with the proposed legalization of a finished garage bay thus creating an unenclosed off-street parking space having a front yard setback of 13 feet, on property located at 64 Rock Ridge Drive, in an R-10 zoning district on the east side of Rock Ridge Drive, approximately 280 feet from the intersection of Acker Drive and Rock Ridge Drive. Said premises being known and designated on the tax map of the Village of Rye Brook as Section: 135.36-1-17; and WHEREAS a duly advertised public hearing was held on August 2, 2011 at which time all those wishing to be heard were given such opportunity; and WHEREAS the proposed action is a Type II action pursuant to the New York State Environmental Quality Review Act and, accordingly, no further environmental review is required; and WHEREAS the Board, from the application, after reviewing the premises and neighborhood concerned and upon considering each of the factors set forth at Section 250-13(G)(b)[2][a]-[e] of the Rye Brook Code finds: 1) The requested variances will not have an adverse impact on the character of the neighborhood; 2) The benefit sought by the applicant cannot be achieved by another method, feasible for the applicant to pursue, that does not require a variance; 3) The requested variance is substantial; 4) The requested variance will not have an adverse impact on the physical or environmental conditions in the neighborhood; and 5) The applicant's difficulty is not self-created NOW, THEREFORE, BE IT RESOLVED, that the application is hereby granted. DATED: August 2, 2011 Mr. Don Moscato, Chairman Mr. Moscato called the roll: Steve Berger Voting Aye Michele Fredman Voting Aye Andrew Kaminsky Recused Joel Simon Voting Aye Don Moscato Voting Aye The resolution was approved by a vote of four ayes and one abstention. Zoning Board of Appeals August 2,2011 Page 19 Zoning Board of Appeals August 2,2011 Page 20 Zoning Board of Appeals August 2,2011 Page 21 3) #11-633 RABI & BABITA BURATHOKI 29 Lincoln Avenue Construct a partial second-story addition; new front portico; rear one-story addition John Scarlato, architect, addressed the Board. It was noted that Lincoln Avenue is in the scenic overlay district and all four variances are needed due to the requirements of the scenic overlay district. Mr. Izzo, Building Inspector, stated that the local law creating the scenic roads overlay district went into effect in August of 2004 and that the applicants purchased the house prior to the adoption of the scenic overlay district. The house is cape and there is a second floor with two bedrooms and one bath. The dormer will be removed and three bedrooms and two baths will be created on the second floor, with an attic above. The house has an addition in the back. The portico will be constructed over the existing stoop. The greenhouse will be removed and that piece will be filled in. In regard to the front yard setback, it was noted that the portico needs a variance. This application will be heard by the Planning Board for site plan approval There is no change in footprint or lot coverage, and no trees will be removed. Attorney Gray suggested that the first and third variances are duplicative. The front line of the house is behind the portico. The line created by the portico becomes the setback. Mr. Izzo noted that variances are often granted with conditions. If the variance is granted outright for the portico that it would allow any future construction to creep forward if the other front yard setback is eliminated as duplicative. Mr. Moscato noted that the variance approval would be conditioned that the portico would be an unenclosed portico. The applicant declined to withdraw the potentially duplicative variances and the Board proceeded with review of all four (4) variances. Mr. Moscato called for members of the public wishing to address the Board in support or opposition. There being no one the public portion of the meeting was closed and the Board began deliberation. It was noted that this application will be reviewed by the Planning Board. There are no storm water mitigation issues because no impervious coverage is being created. Zoning Board of Appeals August 2,2011 Page 22 Mr. Moscato read the following resolution: RESOLUTION WHEREAS, application has been made to the Zoning Board of Appeals by Rabi and Babita Burathoki for a front yard setback variance of 11.7 feet and a vegetative buffer encroachment variance of 6 feet, in connection with the proposed construction of a partial 2nd story addition; new front portico; rear one-story addition, on property located at 29 Lincoln Avenue in an R-10 zoning district and in the Scenic Roads Overlay Zoning District on the east side of Lincoln Avenue, approximately 200 feet from the intersection of Jennifer Lane and Lincoln Avenue. Said premises being known and designated on the tax map of the Village of Rye Brook as Section: 135.65-1-44; and WHEREAS a duly advertised public hearing was held on August 2„ 2011 at which time all those wishing to be heard were given such opportunity; and WHEREAS the proposed action is a Type II action pursuant to the New York State Environmental Quality Review Act and, accordingly, no further environmental review is required; and WHEREAS the Board, from the application, after reviewing the premises and neighborhood concerned and upon considering each of the factors set forth at Section 250-13(G)(b)[2][a]-[e] of the Rye Brook Code finds with respect to the front yard setback variances: 1) The front yard setback variances will not create an adverse impact to the character of the neighborhood; 2) The benefit sought by the applicant cannot be achieved by another method, feasible for the applicant to pursue, that does not require a variance; 3) The variances are mathematically substantial, but will not adversely impact the neighborhood; 4) The variances will not have an adverse impact on the physical or environmental conditions in the neighborhood; and 5) The need for the variances is not self-created WHEREAS the Board, from the application, after reviewing the premises and neighborhood concerned and upon considering each of the factors set forth at Section 250-13(G)(b)[2][a]-[e] of the Rye Brook Code finds with respect to the vegetative buffer encroachment variances: 1) The variances will not create an adverse impact to the character of the neighborhood; 2) The benefit sought by the applicant cannot be achieved by another method, feasible for the applicant to pursue, that does not require a variance; Zoning Board of Appeals August 2,2011 Page 23 3) The variances are mathematically substantial but will not adversely impact the neighborhood; 4) The requested variances will not have an adverse impact on the physical or environmental conditions in the neighborhood; and 5) The need for the variances is not self-created NOW, THEREFORE, BE IT RESOLVED, that the said application for a front yard setback variance and for a vegetative buffer encroachment variance is hereby granted on the following conditions: 1) The proposed portico shall remain unenclosed; and 2) In the event that the applicant does not obtain site plan approval from the Planning Board, the variances shall be null and void. DATED: August 2, 2011 Mr. Don Moscato, Chairman Mr. Moscato called the roll: Steve Berger Voting Aye Michele Fredman Voting Aye Andrew Kaminsky Voting Aye Joel Simon Voting Aye Don Moscato Voting Aye The resolution was approved by a vote of five (5) ayes, and zero (0) nays. Zoning Board of Appeals August 2,2011 Page 24 Zoning Board of Appeals August 2,2011 Page 25 Zoning Board of Appeals August 2,2011 Page 26 4) Approval of May 3, 2011, June 7, 2011, and July 5, 2011 Zoning Board Summaries Mr. Moscato noted that the May and June Summaries would be adjourned for additional review. Mr. Moscato noted that changes have been submitted and he called for a motion to approve the July summary as amended. Mr. Moscato called the roll: Steven Berger Voting Aye Michele Fredman Voting Aye Andrew Kaminsky Voting Aye Joel Simon Voting Aye Don Moscato, Chairman Voting Aye There being no further business before the Board, Mr. Moscato called for a motion to adjourn. On a motion made by Mr. Berger, and seconded by Mr. Simon, the meeting was adjourned at 9:43 p.m. Mr. Moscato called the roll: Steven Berger Voting Aye Michele Fredman Voting Aye Andrew Kaminsky Voting Aye Joel Simon Voting Aye Don Moscato, Chairman Voting Aye Zoning Board of Appeals August 2,2011 Page 27