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HomeMy WebLinkAbout2016-09-06 - Zoning Board of Appeals Meeting Minutes APPROVED VILLAGE OF RYE BROOK DATE—4/(A 938 King Street Zoning Board of Appeals [EC I E V�p IE D Tuesday,September 6,2016 Meeting at 8:00 p.m. NOV -3 2016 VILLAGE OF RYE BROOK BUILDING DEPARTMENT AGENDA 1. #16-021 Joseph Kucera and Rose Kucera 3 Berkley Lane Construct new portico,landing and stair&new ramp and stair 2. #16-022 Christopher Broderick&Patricia Broderick Kenneth Flornes&Nicole Parise-Flornes Louis Augone,Vanessa Augone&Josephine Barber Robert Delaney&Joanna Topping 699 Westchester Avenue Applicant seeks to reverse the Building Inspector's determination to grant two temporary tent permits (Adjourned from 8/2/2016 at Applicant's Request) 3. Approval of April 5,2016 Zoning Board Summary 4. Approval of August 2,2016 Zoning Board Summary BOARD: Steven Berger Glenn Brettschneider Joel Simon Jamie Schutzer Donald Moscato,Chairman STAFF: Michael Izzo,Building&Fire Inspector Eric Gordon,Esq.,Village Counsel Fred Seifert,Public Access Coordinator/IT Paula Patafio,Meeting Secretary BOARD LIASON: Trustee David Heiser -1- Donald Moscato, Chairman,welcomed everyone to the Zoning Board meeting of Tuesday, September 6, 2016. He introduced Village counsel, staff, and Board of Trustee Liaison David Heiser. He asked that anyone addressing the Board please come to the podium,use the microphone, and state their names and the nature of the application. In anticipation of members of the public wishing to address the Board for item #2 on the agenda, a sign-in sheets was handed out. Chairman Moscato asked that anyone who wishes to speak on the matter write their names on the sheet, which will be used to call people to the podium in an organized manner. He then called for item#I on the agenda. 1. #16-021 Joseph Kucera and Rose Kucera 3 Berkley Lane Construct new portico,landing and stair&new ramp and stair Mr.Viktor K.Solarik,architect for the applicants,addressed the Zoning Board. He noted that the applicants were seeking to construct a new portico,landing and stairs to the front of the home. They intend to replace the existing front stairs and construct a retaining wall,which will follow the front stairs. There will be six(6)stairs up to the landing,and then six(6)steps up to the portico. The retaining wall will be constructed of stone.The minimum required front yard setback is 40 feet. The applicants'existing setback,which is non-conforming, is 32.375 feet. The new front landing will result in a front yard setback of 30.75. A 9.25 foot front yard setback variance is required. Mr.Solarik also noted that the applicants'property is located on a hill. The side entrance of this home has a steep walkway made of concrete pavers. In the winter months it is difficult to navigate, and it is dangerous when it is raining. The applicants plan to construct a masonry staircase to a landing leading to a concrete paved walkway. The Village Code requires that a minimum required total of two side yards setback is 40 feet. The existing non-conforming total of two side yards setback is 34.17 feet. The proposed new construction will align with this existing non-conformity, and will require a total of two side yards setback variance of 5.83 feet. Chairman Moscato asked if this was the smallest variance that could be requested to complete the construction and meet the applicants' needs. The Chairman stated that he felt that a 9.25 foot variance was substantial. Mr. Solarik noted that having reviewed other possible scenarios,this was the application that would result in the smallest number and amount of variances and was the minimum possible to achieve the benefits requested. He also noted that the existing stairs are approximately 40 years old and in need of replacement. Mr. Solarik noted that no substantial change will result from the proposed variances. -2- Mr. Steven Berger asked if water travels down the ramp. Mr. Stolarik noted that stormwater is captured because the ramp is made of concrete pavers. The stormwater runoff will not be any different than what is currently existing and the front steps will be more proportional. Chairman Moscato called for members of the public in favor or opposition to the application. There being no one,he called for a motion to close the public hearing. On a motion made by Mr. Steve Berger, and seconded by Mr. Joel Simon, the public hearing was closed and the Board began deliberation. Chairman Moscato reviewed the five factors used by the Zoning Board in its review. Upon the Board's return to the record,Chairman Moscato read the following resolution: RESOLUTION WHEREAS, an application has been made to the Zoning Board of Appeals by Joseph Kucera and Rose Kucera (the "Applicant") for: (1) a 9.25 foot front yard setback variance where a 40 foot setback is required pursuant to Zoning Ordinance§250- 20.G(1), for the construction of a proposed front landing,and 2)a 5.83 foot variance for the total two side yard setback where a 40 foot total two side yard setback is required pursuant to Zoning Ordinance §250-20.G(2)(b) for a proposed new staircase and ramp, on property located at 3 Berkley Lane in an R-15 zoning district approximately 100 feet from the intersection of Berkley Drive and Berkley Lane; designated and identified on the tax map of the Tow of Rye as Parcel ID# 135.43-1-14;and WHEREAS, a duly advertised public hearing on the application was opened on September 6, 2016, at which time all those wishing to be heard were given such opportunity;and WHEREAS,said public hearing on the application was then closed on September 6,2016;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 viewing the premises and neighborhood concerned, and upon considering each of the factors set forth at §250- l3(G)(2)(b)[2][a]-[e] of the Rye Brook Code,finds with respect to the front yard setback variance: -3- 1. The variances will not create an adverse impact to the character of the neighborhood; 2. The benefit the applicant seeks cannot be achieved through another method, feasible for the applicant to pursue,that does not require a variance; 3. Variance#1 is substantial;and Variance#2 is substantial; 4. The variances will not create any adverse impacts to the physical or environmental conditions of the neighborhood;and 5. The need for the variance is self-created;and NOW, THEREFORE, BE IT RESOLVED, that the said application is hereby granted subject to the following conditions: 1. No permit or certificate of occupancy shall be issued until the Applicant has paid in full all application and consultant fees incurred by the Village in connection with the review of this application; 2. The front yard landing shall remain unenclosed; 3. The front yard setback variance shall apply solely to the front yard landing and shall not apply to any other portion of the front elevation of the house. Dated:September 6,2016 Don Moscato,Chairman The roll was called: Glen Brettschneider Voting Aye James S.Schutzer Voting Aye Joel Simon Voting Aye Steven Berger Voting Aye Don Moscato,Chairman Voting Aye The resolution was adopted by a vote of 5 Ayes,0 Nays. 2. #16-022 Christopher Broderick&Patricia Broderick Kenneth Flornes&Nicole Parise-Flomes -4- Louis Augone,Vanessa Augone&Josephine Barber Robert Delaney&Joanna Topping 699 Westchester Avenue Applicant seeks to reverse the Building Inspector's determination to grant two temporary tent permits. Chairman Moscato reviewed the protocol for review of this appeal. He stated that the Board of Trustees is the elected legislative body of the Village.It is the Board of Trustees that determines zoning laws and regulations. The Planning Board is in charge of site plan review. It is the Planning Board that makes recommendations to the Board of Trustees. The Zoning Board of Appeals has two functions.The first is to hear the requests made by the residents for variances,and the second is that it has a responsibility to the residents to make interpretations of the Village Zoning Code. He stated that at this time an application by the applicants is before the Planning Board with respect to the planning issues relating to the tents. The charge of the Zoning Board at this meeting is to focus on the interpretation of the Village Zoning Code. The Building Inspector has made a determination that the 26 foot high,8,217 square foot"temporary tent"erected in the rear parking area of the Hilton property is zoning compliant. Chairman Moscato noted that this is an emotional topic, and the Zoning Board will focus on the interpretation according to the understanding of the zoning laws. Joanna Topping, Esq., a resident of Beacon Lane, an applicant, and member of the firm of Wilson Elser, addressed the Board on behalf of the applicants. She stated that this appeal concerns the temporary permits that were issued for a 500 plus banquet facility that the Hilton calls a "tent." She stated that typically, a tent is only put up for a particular event.The Planning Board is reviewing the application to have the same"tent" remain in place for seasonal use in future years. The applicants' position is that this "tent" is a "Building" under the definition of the Village Zoning Code and must be subject to setback,parking and other requirements applicable to Buildings in the Village Zoning Code.Therefore,the applicants'position is that the determination of the Building Inspector that the"tent"is not a Building should be reversed. Attorney Topping stated that two temporary permits have been issued to the Hilton to erect a tent. She stated that the tent is 82' x 98', accommodates 514 persons, and has been used for various events. The first tent was in place since June, with construction beginning on May 20th. The second permit runs from July to September. She noted that the tent was never actually taken down when the original permit expired but that some additional construction work had been performed to modify the tent. She referenced an e- mail explaining the work that had taken place at that time. Attorney Topping noted that the tent sits on a wooden platform base that is 84 feet x 100 feet. The metal frame and steel support columns are erected on this platform and the frame is draped in fabric. The "tent" as referred to by Attorney Topping, has multiple 5- sets of double hung interior doors and wooden steps, wall-to-wall carpeting, an ADA compliant ramp, light fixtures, air conditioning and is powered by generators. It is 26 feet high and has a square footage of 8,217 square feet. She noted that the tent is extremely large and required a crane to construct. The Hilton refers to this as a temporary tent. This is a very unique structure, and it is very different from other temporary tents erected by the Hilton previously or tents erected elsewhere in the Village. Attorney Topping noted that this tent will remain in place for six months at a time, and that Hilton intends to rent it out to the public. Therefore,this tent is an extension of the Hilton banquet facilities. She then noted that the Hilton currently is not subject to setback regulations or parking requirements associated with the addition to the banquet facilities because this facility is considered a"tent."Attorney Topping stated that if the "tent" is considered a"Building",Hilton would not have sufficient parking spaces since the tent actually takes away parking spaces. She noted that the tent had undergone reconstruction at some point and asserted that this reconstruction work is more akin to maintenance that would be required for a building. Attorney Topping noted that the residents are opposed to the tent as it is effecting their quality of life.They are asking that the tent permits be revoked,and that tent be removed. Attorney Topping also addressed the claim that the application was untimely. She stated that the first time that she and the neighboring residents found out a permit had been issued for the"tent"was on May 20,2016,when the"tent"in question first began to be constructed, and the appeal of the Building Inspector's determination was to be filed within sixty(60)days. Chairman Moscato noted that a letter has been submitted to the Zoning Board by Attorney Topping dated September 6, 2016. He stated that the Zoning Board had just received the letter and had not reviewed it before the meeting. Therefore, he asked whether there was anything in the letter that had not been discussed during her presentation that she wanted to raise.Attorney Topping stated that there was not. Steven Wrabel,Esq.,from the firm of McCullough,Goldberger,and Staudt addressed the Board as legal counsel for the Hilton.He stated that he had not received the September 6, 2016 letter, so he was asking the Board if he could have an opportunity to respond in writing. He stated that Hilton supported the Building Inspector's interpretation that tents are not "Buildings" and that this was a tent. The Hilton applied for and received a temporary tent permit on April 18, 2016. Construction began on May 20, 2016. Attorney Wrabel stated that the applicants have not put forth evidence that Mr. Izzo's interpretation of the Zoning Code should be overturned. Attorney Wrabel stated that where any ambiguity exits in a Zoning Code, it must be interpreted in favor of the property owner against whom it is being construed. He stated -6- that the Zoning Code is ambiguous as to what constitutes a wall, columns or a roof and that these terms must be construed in favor of the property owner.He also noted that the Board can look to the definition of a tent contained in the New York State Fire Code when making its interpretation. Attorney Wrabel agreed that a tent was a"Structure"under the Zoning Code,but that the definition of a "Building"was not dependent on the size or duration of the structure or whether the structure had a wooden floor, stairs or doors. None of these bear on the definition of a"Building". Rather he noted that the definition of a"Building"was"Any structure having a roof supported by columns or by walls and intended for the shelter, housing or enclosure of persons,animals or chattel." Attorney Wrabel was asked what would happen to the tent between September 16 and April of next year.He confirmed that the tent would be taken down. The Board members asked questions about and discussed the length of time required to construct the tent,its size,the material covering the frame,and how the lighting is affixed to the tent. Attorney Wrabel stated that the aluminum frames which support the tent fabric are not"columns" and that the walls are canvas and cannot support a roof. The Board asked if there was a common definition of column. Attorney Wrabel stated there was nothing in the Zoning Code and that the common definition of column would not include tent posts. Chairman Moscato then provided a review of the history of the Village's Zoning Code The Chairman confirmed that the Building Inspector is responsible for interpretation of the Zoning Code and that the Board reviews the Building Inspector's interpretation. He also acknowledged that where an ambiguity in the Zoning Code exists, it must be interpreted in favor of the property owner. Mr. Michael Izzo, Building Inspector,then clarified his interpretation for the Board and members of the public. He stated that the term"tent"is undefined in the Village Zoning Code. Therefore, he looked to other code sections, including the New York State Fire Code, which does define the term"tent"and that this was clearly a tent under the New York State Fire Code. The Building Inspector also stated that if this tent is considered a "Building" then he would need to look at all other tents erected in the Village to determine if those tents were also"Buildings".He stated that this does not make sense and would likely result in all other tent having to comply with zoning regulations for the Zoning District in which they were being constructed.He noted that the construction of the tent in this case is not unique,but was pretty typical. Other tents use similar frames and often have doors, light figures,etc. -7- The Chairman asked why the Building Inspector had looked to the definition of tent in the New York State Fire Code. The Building Inspector replied that since there was no definition of a tent in the Village Zoning Code, he wanted to see how other authorities defined the term tent. In this case, the tent in question meets the definition of"tent" included in the New York State Fire Code. The Chairman asked the Village counsel if other municipal codes included a definition of the term"tent". Village counsel stated he was not aware of other municipal codes which included the definition of a tent.Attorney Topping stated that a court case from the Town of Clarkstown recognized that a tent was considered a `Building" under the Town of Clarkstown Zoning Code, which contained the same definition of "Building" as the Village Zoning Code. However, it was confirmed that the case in question did not directly address whether a tent was a"Building"because the applicant in that case did not challenge whether the tent in question was a"Building". Attorney Topping stated that this tent is too large to be considered a tent and should be considered a Building. There was a discussion about how long it took to construct the tent, how it was constructed and whether because the tent is more substantial than other tents that it should be considered a "Building". Chairman Moscato asked when does a tent pole become a column and noted that aluminum tent poles are not columns. The Chairman did acknowledge that the tent might be annoying to the neighboring property owners,but that this does not have anything to the definition of`Building". Rather,that is a quality of life issues and it is not the Zoning Board's purview to consider size and location of the tent when making its determination. The Board questioned whether the fact that the tent could be taken down and put back up differentiated it from a"Building".Attorney Topping responded that this did not matter because you can take down a Building made of wood and plaster. There was then a discussion regarding whether any excavation was required to put up the tent. Attorney Topping said she saw excavation taking place and concrete being poured. The Building Inspector said that no excavation permits were issued, that there was no foundation for the tent and no poured concrete. There was a discussion about alternative locations for the tent. Attorney Wrabel stated that the Hilton did look at alternative locations, but this was the best location possible. He also confirmed a tent this size was needed to accommodate certain business that had previously been at the hotel. He noted that since May the tent was only used for six weeks. The rest of the time it was vacant. Attorney Wrabel noted that Hilton wanted to use the tent more and that is why they were seeking Planning Board approval.It was also pointed out that the Hilton has utilized tents for over twenty years for public assembly and that they were similar types of tents. _8- The Board counsel asked if the Board wanted to allow the Hilton or anyone else to submit written comments after the public hearing was closed.Attorney Wrabel responded that the Hilton was not requesting time to submit written comments or a response to the applicants' September 6,2016 letter. On a motion made by Mr. Joel Simon, and seconded by Mr. Steve Berger, the public hearing was closed and the Board began its deliberations. Chairman Moscato stated that the key issues were definitional and that there had been extensive discussion regarding whether a tent is a`Building"as defined in the Village Zoning Code.With respect to the parking issue,the Chairman acknowledged that there is an overflow facility and shuttle service and that in his own view this would address any concerns about parking. The Chairman next stated that he was not persuaded by the timeliness argument raised by the Hilton and the other Board members agreed and stated that matter should be heard on the merits. The Board acknowledged that the Village Zoning Code is ambiguous because the word "tent"is not defined.The Chairman then stated that where there is ambiguity in the Village Zoning Code,it must be construed in favor of the property owner.It was noted that there is nothing in the Village Zoning Code regarding size or duration of this type of structure. There was a discussion about whether the Village Board should take legislative action and provide a definition of"tent"in the Village Zoning Code. Mr. Steven Berger stated that he was concerned about the broader implications of stating that this structure is a"Building"and how it would impact other tents in the Village. There was a discussion about whether the duration of the tent should impact whether a tent is a `Building". The Building Inspector noted that under the New York State Fire Code,a temporary tent could only remain up for one hundred and eighty(180)days in a twelve(12) year period. The Building Inspector confirmed that a tent was meant to be taken up and put down. Mr. Joel Simon stated that because the aluminum poles used to support the tent were similar to those used in smaller tents,that he did not believe they should be considered columns. Attorney Wrabel confirmed that the tent in question would not remain up for more than 180 days in a twelve month period and would likely remain up for less than that amount of time. -9- Chairman Moscato called for a straw poll from the members of the Zoning Board. After additional deliberation and review,the consensus of the Zoning Board was to uphold the Building Inspector's determination. Village Counsel was asked to prepare a resolution for the Zoning Board to consider at the October 4,2016 meeting. Chairman Moscato called for items three and four on the agenda. 3. Approval of April 5,2016 Zoning Board Summary 4. Approval of August 2,2016 Zoning Board Summary On a motion made by Mr. Simon, and seconded by Mr. Berger, the summaries were approved as amended. There being no further business before the Board,the meeting was adjourned at 9:49 p.m. -10-