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HomeMy WebLinkAbout2006-09-05 - Zoning Board of Appeals Meeting Minutes VILLAGE OF RYE BROOK 938 King Street ZONGING BOARD OF APPEALS Tuesday, September 5,2006 8:00 p.m. AGENDA 1) 906-449 Frank Drazka,Melissa Drazka, Henry Klein, Kip Konigsberg (Re-Appearance) 44 Lincoln Avenue Subdivide a 10' x 278.33', into three separate tax lots, as identified on the application as Lots "A," "B" and"C" 2) 906-425 Mr. &Mrs. Michael Ricci (Re-Appearance) Legalize a finished basement,rear deck and rear shed. Expand the existing driveway and construct new masonry steps at front. 3) 406-444 Ms. June Scharf (Re-Appearance) 8 Magnolia Drive Construct a rear, two-story addition and a second story addition over the existing garage. 4) Approval of August 1, 2006 Zoning Board Summary BOARD: Mark Harmon, Chairman Salvatore Crescenzi Joseph Pellino Ronald Rettner(arrived at 8:17 p.m.) Michael Siegel Trustee Joan Feinstein, Board of Trustee Liaison STAFF: Michael Izzo, Building Inspector Edward Beane, Esq., Village Attorney Paula Patafio, Meeting Secretary Zoning Board of Appeals September 5,2006 Page 1 Edward Beane, Esq., Village Attorney, noted that at the request of the Zoning Board members, he was in attendance in connection with the review of application 906-449. He stated that the matter should be briefly discussed during an Executive Session prior to the start of the meeting. After a brief discussion among the Board members in attendance, Mark Harmon, Chairman of the Zoning Board of Appeals, called for a motion for an Executive Session. On a motion made by Salvatore Crescenzi, and seconded by Joseph Pellino, the Board went into an Executive Session. Upon the Board's return, Mr. Harmon called the September 5, 2006 Zoning Board of Appeals meeting to order. He noted that there were three (3) items on the agenda. Mr. Michael Izzo, Building Inspector, pointed out that two (2) of the items on the agenda had requested adjournments. Mr. Harmon noted that Ms. June Scharf of 8 Magnolia Drive, Application #06-444, requested that a temporary hold be placed on the application and, with the consensus of the Board, this matter would be placed on the agenda for October 3, 2006 Zoning Board of Appeals meeting. He stated that when the application was ready to move forward, the applicant must re-install the sign so that any effected neighbor/homeowner would be on notice that the application would be heard by the Zoning Board of Appeals. Mr. Harmon noted that application 906-425 of Mr. and Mrs. Michael Ricci, of 500 Ellendale Avenue, had also requested an adjournment via a letter submitted by the architect, John Scarlatto. Mr. Harmon also placed this matter on the agenda for the October Zoning Board Of Appeals meeting. Mr. Harmon called for the remaining matter on the agenda: 1) 906-449 Frank Drazka,Melissa Drazka, Henry Klein,Kip Konigsberg (Re-Appearance) 44 Lincoln Avenue Subdivide a 10' x 278.33', into three separate tax lots, as identified on the application as Lots "A," "B" and"C" Demetrios Adamis, Esq., legal counsel for the applicants from the firm of Gioffre & Gioffre addressed the Board. He began his presentation by noting that this matter has been heard by the Planning Board, and a presentation was made at a previous Zoning Board of Appeals meeting. At the prior Zoning Board meeting, the Board had requested that the Village's legal counsel be available to answer questions from the Board during the next presentation. In response to this request Mr. Harmon noted that Edward Beane, Esq., of the firm of Keane& Beane,was in attendance. Mr. Adamis began his presentation by noting that the subject of this application was the 10' portion of the driveway that services the homes of the applicants, and other properties. Through a series of Deeds and apportions by the Tax Assessor, the 10' strip has been split into two lots and deeded into three portions; a 5' strip, and two (2) 2 '/2' Zoning Board of Appeals September 5,2006 Page 2 strips. This situation has created a cloud on the applicants' titles and much confusion. The matter was heard by the Planning Board, and its recommended resolution was a subdivision of the property. This resolution was supported by the Village's Attorney. However, the Village's Code prevents the creation of non-conforming lots in this Zoning District, which means that the applicant would require several variances. Mr. Adamis noted that this 10' strip of the driveway is covered by easement agreements, and this driveway has serviced these properties for approximately 50 years. This strip is part of the larger driveway, and cannot be further developed. The requested variances are required before the Planning Board can complete its process. Mr. Adamis felt that prudent planning would be to grant the variances. There is no effect or change to the neighborhood or the environment. The applicants were innocent purchasers and did not create this issue. Mr. Adamis noted that the Village's Attorney has taken the necessary steps to ensure that this does not create a precedent, and he noted that only four (4) homes are affected by this matter. The two (2) homes on Lincoln Avenue do not have ownership, but they do have easement rights. The driveway is 20' in width. Mr. Harmon questioned why the homeowners need a variance. Mr. Adamis responded that the Village's Code does not allow the creation of non-conforming lot. The negative impacts to the applicants are that their titles to their property are permanently clouded, and the deeds are affected and they would need to be amended. In addition there are insurance interests and mortgages interests that are involved, and problems could arise if and when the applicants chose to sell their homes. Mr. Harmon stated that these problems do not interfere with the easement rights. Mr. Adamis reiterated that the driveway has been made into non-conforming lots and in the R-12 District non-conforming lots are not permitted. He stressed that whether it is a 10' strip or if it is three (3) strips, the lots are still non-conforming. Mr. Adamis additionally stated that the applicants require variances in order to proceed. He pointed out that the Village's Planners and Counsel have determined that this is a plan that they are all comfortable with. There is no negative impact to the community or the environment, and there is a Planning Board referral to the Zoning Board of Appeals. Mr. Adamis respectfully requested that the Zoning Board grant the necessary area variances for the application to move forward. Mr. Ronald Rettner noted that the value of this strip of property is negligible when compared to the value of the properties it services. He suggested making the driveway a shared driveway. Mr. Adamis noted that might be possible, but it would mean that all five (5)homeowners would need to come in. There would need to be conveyances of the strip, as well as amendments to the deeds. It would also affect the titles of the properties. Mr. Salvatore Crescenzi noted that the referral from the Planning Board did not recommend or deny the application. Mr. Adamis disagreed, stating that in his opinion it Zoning Board of Appeals September 5,2006 Page 3 was inferred that the Planning Board and Village Attorney did not look upon this solution with any negativity. Mr. Harmon felt that nothing was being inferred. He stated that because of the change of procedure the Planning Board would be required to recommend approval or disapproval before the matter is referred to the Zoning Board. Mr. Beane responded that the Planning Board's position was that it was not going to issue a determination one way or another without a positive response from the Zoning Board of Appeals because without positive response from the Zoning Board, the Planning Board has no authority to do anything. The ultimate question is if next month the Planning Board submitted a resolution granting a sub-division subject to the Zoning Board of Appeals variance, what would the Zoning Board's reaction be? Mr. Beane stated that it was his opinion that it was not necessary to have the resolution from the Planning Board before the Zoning Board made its decision. He stated that at some point in the future the Zoning Board must make a decision as to whether or not it will grant a variance. The Planning Board can be asked to issue a resolution of approval or disapproval, but the truth of the matter is that the Planning Board's recommendations are conditioned upon what the Zoning Board decides. At the end of the day the buck stops before the Zoning Board of Appeals. Mr. Harmon questioned what would happen if the four (4) property owners got together and agreed on easements, and whether or not it would be necessary to deed the parcels. Mr. Adamis noted that this suggestion predisposes that all of the property owners could agree. The next issue would be the easement agreements which are already in place. Mr. Harmon noted that there were no property owners that would be putting up fences and preventing the use of the driveway and, in fact, there were easement agreements governing the use of the driveway. Mr. Adamis noted that the logic behind the deeds was to give access to Lincoln Avenue,which does have some value. Mr. Henry Klein, one of the applicants, noted that the driveway goes over Blind Brook. The Bridge is maintained by the owners of the 10' strip, and he noted that there is an agreement in place in order to be assured that the Bridge is maintained. The subject of access to the Blind Brook School District via ownership of this 10' strip was brought up. Mr. Harmon questioned how much the homeowners are taxed for the right to the Blind Brook School District. Mr. Adamis deferred to State Law to respond to this question. He noted that the taxes are collected by the Town of Harrison. If any of the children in these homes opted to attend Blind Brook Schools, the school district would be reimbursed by the Town of Harrison. Mr. Harmon called for additional questions from the Board. There being none, he turned to Mr. Beane, noting that when the matter was adjourned at a prior meeting it was for input from the Village's Attorney. Mr. Beane noted that what basically happened is that through a series of real estate deals as far back as 1986, three strips of land were created. There are no separate lots. Each of Zoning Board of Appeals September 5,2006 Page 4 these three (3) strips is an illegal sub-division or illegal lot because it does not satisfy the definition of a lot. When the Village became aware of this problem, which was approximately two (2) years ago, it made a determination that as far as the Village was concerned these were illegal lots. This was not a legal subdivision. To try and resolve this unique situation where the Village is faced with something that exists, the Village's Attorney's position was that the Planning Board should create a unique, never to be duplicated, sub-division. The Village will never change its position and declare these three legal lots. There are all sorts of issues created here, i.e.: insurance issues, and title issues. Although the Village had nothing to do with creating these issues, if there is a way to resolve them they should be resolved. The only way that the cloud can go away is if the Planning and Zoning Boards do something. As the Village Attorney he advocated doing something in order to make this cloud go away because this could become an expensive process for the Village. The Village should not be saddled with the obligation. The only way to avoid litigation would be to go through this process. Trustee Joan Feinstein noted that it is clear from the Village's Code that the Zoning Board of Appeals has the power to make a decision without a recommendation from the Planning Board. She also agreed that the Village's Tax Payers should not be saddled with the potential expense of litigation. Mr. Crescenzi noted that the Code also clearly deals with the referrals of matters to the Zoning Board of Appeals. He questioned whether or not the applicant could receive a denial and go before the Planning Board, and the go before the Zoning Board for variances. Mr. Beane responded that they could not. Mr. Rettner could not comprehend why it is the Village's problem to solve this matter. Mr. Beane noted that it is not the Village's problem, but that correcting it would make it very clear that it will not tolerate this type issue. The building permits were issued by the Town of Harrison, and the Town of Rye did an apportionate. At this point in time the Village is faced with a situation that is a done deal. The Village's Assessor said that there will be no more creation of any new lots until a certification has been received from the Village that in fact there has been an illegal subdivision. At this time the Village is faced with a problem that exists. The resolution currently before the Zoning Board is a creative resolution — the Zoning Board needs to grant the necessary variances to allow the Planning Board to decide whether or not it will cure the problem. Mr. Rettner noted that he recognized the hardship to the homeowners, but still expressed his opinion that it is not the Village's problem. Mr. Harmon felt that no one would be hurt if the Zoning Board decided to do nothing. No property rights are taken away, and the easements which grant access to their homes and Lincoln Avenue would not be lost. He noted that although he was sympathetic, he felt that it was not a matter for the Zoning Board. Zoning Board of Appeals September 5,2006 Page 5 Mr. Drazka noted that if the Board chooses to do nothing then the applicants are still faced with the problem. Doing nothing does not solve the problem. Mr. Adamis stressed that this was not a self-created hardship. There is some measure of reliance on what the Town of Rye's Tax Assessor did. Mr. Beane pointed out that the Town of Rye's Assessor is also the Village of Rye Brook's Assessor, and he reminded the members of the Zoning Board that the facts are what they are. The ultimate issue is leaving the matter the way it is will leave the cloud, or the Village could be creative and resolve this issue. This matter could serve as tge poster child to let everyone else on Lincoln Avenue know that there is no way that the Village would ever let something like this happen again. He stated that the Village was trying to create a solution that would work for everyone. Mr. Harmon called for final comments from the public, or members of the Board. There being no further comments, he noted that there were e-mails that were submitted on this matter. He asked whether counsel for the applicants was aware of these e-mails. Mr. Adamis responded that he had reviewed these e-mails shortly before the meeting. He noted that the e-mail included portions of the memo submitted by Mr. Beane to the Board of Trustees. He did, however, object that the e-mail was handed to him several minutes before the hearing which did not allow him ample time to review the text. He also noted that the applicants objected to Mr. Stanton's characterizations, and that there were several inaccuracies. Mr. Harmon noted that he did not yet have the opportunity to read the e- mail. The decision of the Board was that they would not consider written submissions that have not been reviewed by the Board. Trustee Feinstein noted that the Board of Trustees is clearly aware of this application as it has been going on for approximately two (2) years. It was her opinion that this is a very creative way to solve the situation. If the Zoning Board denies this application, the Village will be involved in litigation. This could be an expensive proposition on the part of the Village. Although she understood the Zoning Board of Appeal's dilemma, she noted that this could be very expensive to the residents of Rye Brook as the Village would be a party to this litigation. There being no further comments from members of the public or the Board, Mr. Harmon closed the public portion of the hearing, and the Board went into deliberation. Upon the Board's return, based on advice from Counsel, the decision of the Zoning Board of Appeals was deferred to the following meeting. It was noted that the public hearing was closed and the matter would appear on the Zoning Board's October 3, 2006 agenda. Zoning Board of Appeals September 5,2006 Page 6 Mr. Harmon called for the final item on the agenda: 1) Approval of August 1, 2006 Zoning Board Summary The minutes were unanimously approved as submitted on a motion made by Joseph Pellino, and seconded by Michael Siegel. There being no further business before the Board, the meeting was adjourned at 9:23 p.m. Zoning Board of Appeals September 5,2006 Page 7