ZBA January 14, 2004
                                                                DRAFT FILED: 1/28/04
                                                        FINAL APPROVAL: 2/11/04

VILLAGE OF CROTON-ON-HUDSON, NEW YORK ZONING BOARD OF APPLEALS MEETING MINUTES OF JANUARY 14, 2004


Members Present:      Donald Sapir, Chairman
                        Rhoda Stephens
                        Ruth Waitkins
                        Paul Rolnick
                                   Witt Barlow 


Also Present:      Joseph Sperber, Code Enforcement Officer



Meeting came to order at 8:00 P.M.


Donald  Sapir, Chairman of the Board announced the location of fire exits.



HEARINGS:  

Joann Jackson, Morningside Drive.  Section 79.09 block 6 Lot 32.  Located in a RA-9 District.  Request for the following variances:  Area, Lot width, Side yard, total side yard and off-street parking (230-51D) variances with respect to a proposed dwelling. (Adj. on 12/10/03)

Maria  Modica Snow  Attorney for Joann Jackson  To avoid repeating of what has already been said at the last meeting, I will keep it brief.   At the last meeting the Board adjourned the hearing to revisit the site.  Mr. Wegner, the architect is also here to answer any questions you may have.  The benefit to the applicant; if these variances are not granted the property becomes worthless.   In terms of detriment to the neighbors or undesirable change to the character of the neighborhood; I presented and Mr. Wegner presented drawings to show it does go with the character of the neighborhood and there are other houses in the neighborhood that are substandard.  This property meets all of the requirements of an existing small lot.  It was not until the property changed title that this was discovered.  We need variances only because the lot lost the status of “existing small lot”.   I had an informal conversation with the Village Attorney and he stated that the lot line was not obliterated, she just lost the small lot status. If you look at Mr. Tullys letter that refers to Section 230-8C of the Village Code, which basically is talking about subdivisions, not lots already in existence.  It always had separate tax lot numbers and
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separated by a separate line.  Is the variance substantial?  In light of the neighborhood it is not.  There is case law which states that you should not look only at the percentage of variance, but you need to look at all the facts and circumstances, look at the neighborhood and use common sense.  When this house is built, someone can drive-by and never be able to tell there was a variance granted, it will fit in with the neighborhood.  We are asking for variances to conform to the prevailing substandard character of the neighborhood.  She is seeking variances to conform to the substandard character of other lots in the neighborhood.  It will not be  a  physical detriment to the character of the neighborhood.  The alleged difficulty was not self-created

Sapir  You say that the hardship was not self-created.  Wasnt the attorney granting the hardship her agent at the time of the closing?  I am not saying this was on purpose, if it was done inadvertently.

Snow  Yes. By the attorney putting it in her name she lost the “existing small lot” status.  That is why we are here seeking a variance.

Sapir  If it remained a small lot status you would not need to be here, that is your argument?

Snow Yes, if someone purchases a lot intending to keep it separate.  In the alternative, if someone has a small lot and it does not meet the requirements and they purchase it now it is not an existing small lot.

Sapir  So you think this is different because of the expectation the applicant had?

Sapir Someone else may have had the same type of lot owned together, why should your client be given different consideration?

Snow Because the intent was always to keep it separate.  The attorney believed that by keeping the lots in two separate deeds he was keeping them separate.  No one is coming up with any money to purchase it, so she is already losing money on it.  It is now almost four years after the sale of her house.

Sapir  Does your client have any recourse from the attorney?

Snow  If anything, I think the statute of limitations is up.  The most she could do is offer it to the neighbors.  The contract vendees have spent  $12,000.00 and they have spent nine months before the Planning Board.  So, there is more money sunk into it over and above the sale price.

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Rolnick  There were neighbors interested in purchasing it?

Snow  No.  I spoke with Mr. Sheer, but my client would like to recoup their costs and the purchasers would like to recoup their cost.  So far no one is interested.  We have seen no offers.

Rolnick  When did the transfer of title take place?

Snow  1991.  I think it is three years for the statute of limitations.

Sapir - Anyone else like to be heard?

Joann Schilk  42 Morningside Drive.  At the last meeting we talked about parking and I felt I did not make myself clear.  I think it is important.  

Sapir  Before you continue; has everyone interested seen the photos that Cronin Engineering submitted?

Everyone interested stated yes.

Photos were made part of the record.

Schilk  The home on the other side of the proposed building is a multi- family dwelling that has six or possibly eight families.  Through the years, parking has been provided for the tenants. They have eight cars and they have extended their parking on to a lot that they created off the street.   This house is on Morningside Drive on the right hand side coming up the hill and it is on the curve too. The proposed home is allowing for three cars.  We park two cars at our home.  The point I am making is esthetically, it begins to look like a mini parking lot in the middle of a beautiful block where you are looking at thirteen cars within 150 ft  That is a lot of cars there.  It is hazardous.  You are blocking my house and my view.  I already have to go half way out into the street to see.   Children live across the street and their mother is here tonight.  She is also concerned.  There are eight parking spots across the street and now we are looking at more.  I do not know how that fits into the scope of a private neighborhood.

Rolnick  To the Schilks - Is there any kind of a structure you and your husband would be comfortable in having there?




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Warren Schilk  42 Morningside Drive  There is fifteen feet between the edge of my house.  This house will be looking into all the windows of my house.  It will impact my privacy everyday.  It will affect the value of my property when I go to sell.

Barlow  But, is there any kind of a structure you will accept?

                                                                        
Schilk - No it will impact me no matter what it is.

Rolnick  What if it was positioned more to the back of the property?

Schilk - Then it would affect her ( referring to an unidentified neighbor attending the meeting).

Penny Sickenius  41 Morningside - I am in the house directly across from the lot in question.  Parking as Joann Schilk mentioned is an issue.  The apartment has many cars and they park in front of my house and Mrs. Schilk has difficulty coming out of the driveway and I do too.   There are teenagers and there is no room for more parking and my children play there and if more cars are added it will make the blind spot worse.  This proposed house is adding no value to the neighborhood   It does nothing for us it just adds money in her pocket.

Sapir  To Joseph Sperber, Code Enforcement Officer, is this a legal multi family dwelling?

Sperber  I do not know.  I would need to check our files.

Sapir  Requested Mr. Sperber, Code Enforcement Officer, to check the village files and report  back to the Board.

The hearing continued.

Patricia Barua  64 Morningside Drive  I already submitted a letter, I will not take the time to repeat what is in it.  The Jacksons needs are against the needs of the community.   
I am against the application.

Bill Freeman - 23 Morningside Drive    I cant understand that she is claiming that the land was purchased for future building.  We cannot tell what was in the minds of the person who built the house.  The fact is the property was unbuildable then.   The application should not be judged on what may or may not have been in their minds when
                                                                
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they are purchasing.  It was held separately for a particular marriage arrangement.  If they knew that the property was unbuildable then I wonder why both properties were not sold at the same time to one person, unless they felt they could make more money by selling it separate. It does not look kosher to me.   Why werent the neighbors offered the sale of the property?  Why wasnt the person who purchased the other house offered the sale of that property too?

Norman Sheer  Attorney, 399 Knollwood Road, White Plains, N.Y.  Atty  I know there are some neighbors who have not spoken, who are here in opposition of the variances. I would like to ask everyone who is here tonight against the application to raise their hands.  Please let the record reflect that nine neighbors including all who have spoken raised their hands.

Sheer  The property was offered to my clients for $100,000.00.  Is there a detriment to nearby properties?  Tthe next-door neighbor has stated that it will be as close as it is from me to you.  ( Note from the ZBA Secretary to the minutes:  Mr. Sheer was referring to the distance between the location where the chairman was sitting and where Mr. Sheer was standing, which was approximately 10ft.) That certainly affects their everyday life.     Can the benefit sought be achieved by some other method?  They cant.   It shouldnt be built on.    Is the variance substantial?  This is where Ms. Jackson runs into trouble. The lot is too narrow and requires a side yard variance on both sides. To permit the disturbance of twenty five percent is more than six times what is allowed by the Steep Slopes Law.   Detriment to neighbors;  Yes and there will be overcrowding with the parking. Is it self-created; yes, that goes directly back to Ms. Jackson.  All of these reasons are good reasons my clients and I think you should deny this variance.  This is a bad lot.

Maria  Modica Snow. -  Nine people speaking out against the application; this is not really a popularity contest and I take offence to that.   We believe the house on the other side is 20 ft. away.   We have the Planning Board to look at the steep slopes issue.   That cannot be a reason to not grant this variance.  The other Boards need to look at those issues.    If the neighbors have cars parking off-street, that should not be a reason to penalize Ms. Jackson.  If someone owns a multi-family house they need adequate parking.  According to the submitted plans my client will have two spots for cars, so we are not impacting parking in any way. It is a balancing of the benefits to the applicant and detriment to the neighbors.  I do not agree this is a self-created hardship.  It is not a bad lot. Most of the houses on this street would not be built, if that were the case.  I understand this is a difficult decision and the opposition of the neighbors should be taken into consideration, but the opposition of the neighbors is not a reason not to grant the variance.  
                                                                

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The Schilks requested that a survey they submitted be part of the record.

Sapir  Have you had any real estate person say what the detriment and loss in property value would be to you if this was built?

Schilk  No.

Pat Burea  I would just like to refer the Board to Section 230-8-C of the Village Code.

Wegner  Cronin Engineering -2 John Walsh Blvd - We will be providing off street parking. with a depth of twenty feet.  It will not cause any obstruction to the view on the side of the street.

Sapir  I would like to move on with the other items on the agenda until Mr. Sperber gets back with his findings regarding the multi-family residence.
 
This hearing is not closed.


Hearing temporarily adjourned.



John Nikic, Farrington Road, Section 78.08 Block 4 Lot 42.  Located in a RA-5 District .  Request for a total side yard variance with respect to the construction of a new chimney.

John Nikic-  We are currently building a new house on 66 Farrington Rd.  We are constructing a fireplace that extends two feet beyond what is required.  We did not see this as an issue it was brought to our attention by the village engineer.  Construction has already taken place.

Sapir  If the variance is not granted you would have to remove the chimney?

Nikic - Yes we would have to remove it.

Rolnick  Why cant you relocate it?


                                                                
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Nikic - Because that is the family room and we would have to remove a rear egress and then we would have no egress to the back yard.

Barlow  Does the chimney have to be external.?

Nikic - Something that has already been built would have to be removed.

Barlow Is it a brick chimney?

Nikic - Wood frame

Sapir  What is the total side yard that is required?

Nikic - Total side yard required is twenty feet and we will have eighteen, so we would need a two-foot variance.  It was my interpretation of the plans that we did not exceed what was required.

Barlow  What was the variance given for the bay windows?

Nikic - We received that at the last meeting.

Sapir  So we are now talking about a total side yard variance.

Barlow  You will have a total side yard of nineteen feet instead of twenty feet?

Sapir  How much of a total side yard are you requesting?

Nikic  Three feet because I have eleven feet on one side and six on the other with the fireplace.  Without the fireplace I have eight.

Sapir  Any other questions from the Board or the public?

There was no reply.


Hearing Closed.

Waitkins  Made Motion to grant the application as submitted
Barlow  Second the Motion
Vote:  5-0  In favor  Waitkins, Barlow, Sapir, Stephens, Rolnick

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Hollis & Mark Anzani, 12 Park Trail, Section 68.17 Block 1 Lot 18.  Request for a lot width, lot area, side yard, total side yard, and front yard variances with respect to a previous variance that was granted on 6/12/02, for a proposed deck and addition, which expired on 6/12/03.

Julia Horowitz - I work for Adam West., 60 Brook Street, who is the contractor for the Anzanis.

John Lentini, Architect, 124 Allen Street, Cortlandt Manor, N.Y. - I am the Architect for the Anzanis.  When the Anzanis purchased the house as is, they thought it was legal.  They applied for a building permit for an addition and a proposed deck. On a careful examination the engineer discovered we needed a variance.  A variance was applied for and granted on 6/12/02.  The applicant applied for the building permit and the engineer had requested revisions to the deck. By the time the revisions were submitted to the engineer, the variance had expired.  We are now before you to request the same variance.
We are adding a deck to the house and adding one room.

Sapir  What is changing from last time?

Lentini - The second floor deck is going to be larger, twice as large, this is part of the plans, but not what we are asking the variance for.

Rolnick - You are only discussing the second floor deck because that is what delayed these plans?

Lentini  Yes.

Stephens  What about the extended roof?

Lentini - That will be the same as what we asked for before, except for the deck that was four feet, it will now be thirteen feet. We are asking for the same variance we asked for before.



Discussion followed over plans.

Rolnick  The addition also needs a side yard, correct?

Lentini  Yes.

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Sapir  Anyone else like to be heard?


There was no reply.


Hearing closed.


Rolnick  Made Motion to grant the application as submitted for a minimum side yard of 26 ft. on left, 5 ft. on right and total side yard of 31 ft., front yard variance of 1 ft. and a lot area variance of 14,690, and lot width variance of 73 ft.

Stephens  Second the Motion

Vote:  5-0 In Favor  Rolnick, Stephens, Sapir, Waitkins, Barlow



Jackson/Hearing Continued:

Sapir - Joseph Sperber, the Code Enforcement Officer has returned.   What are your findings?

Sperber  We have 34 Morningside Drive listed as a three family dwelling.  We do not have it listed as a six or eight family dwelling as stated tonight.

Mr. Sapir to Mrs. Schilk -  What was your basis for determining it was a six to eight unit building?

Schilk - Because of the parking it seems it would be more.

Lillian Projeski  55 Truesdale Drive  I am down the slope of the property in question.  That property at 34 Morningside,  I definitely see four separate mailboxes and another in the back of the house.

Schilk - That is what I am saying. In the basement there also seems to be another one.

Penny Sickenius  There is a  lot of activity going on in that area, so I think that is why it looks so busy.
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Sperber  The village files shows 34 Morningside Drive listed as a three family.

Sapir  Perhaps you will want to investigate this further.

Mr. Sperber agreed.

Sapir - Anyone  else like to be heard?

There was no reply.

Hearing closed.


Rolnick  Made Motion to grant the application as requested for a Lot area variance of 888 sq. ft., a lot width variance of 25 ft., a side yard variance of 1 ft., a total side yard variance of 8 ft. and off-street parking (230-51D) variance of 200 sq. ft. with respect to a proposed dwelling.

Stephens  Second the Motion

Vote  0-5  Opposed - Rolnick, Stephens, Sapir, Waitkins, Barlow
Application DENIED



DISCUSSION:

Comprehensive Planning Committee:

Ms. McCarthy, Village Board Liaison asked the Board if there had been any discussion among the ZBA Members with respect to appointing representatives from the Zoning Board.   Rhoda Stephens and Paul Rolnick volunteered to be representatives.



Respectfully submitted,



Janice Fuentes
ZBA Secretary
1/14/04
RESOLUTION


Joann Jackson, Morningside Drive, has applied to the Zoning Board of Appeals of the Village of Croton-on-Hudson, requesting lot area, lot width, side yard, total side yard and off-street parking variances with respect to a proposed dwelling.

The property, at Morningside Drive is located in an RA-9 District and is designated on the Tax Maps of the Village as Section 79.09 Block 6 Lot 32

A public hearing having been held after due notice, this Board from the application and after viewing the premises and neighborhood concerned, finds:

The total area of the applicants lot is 8,487 square feet.  The zoning ordinance, § 230-33, requires a total lot area of 9,375 square feet.  The lot width of the applicants lot is 50 feet.  The zoning ordinance, § 230-33, requires a lot width of 75 feet.  The side yard on the northerly side of the proposed dwelling is 11 feet.  The zoning ordinance, § 230-33, requires a side yard setback of 12 feet.  The total side yard for the proposed dwelling is 22 feet.  The zoning ordinance, § 230-33, requires 30 feet.  The off-street parking for the proposed dwelling is 400 square feet for 2 vehicles.  The zoning ordinances, §§ 230-33 and 230-51(D), require 600 square feet for 2 vehicles.

Applicant was formerly the owner of the abutting northerly lot at 42 Morningside Drive at the same time she owned the lot for which variances are now sought. The two lots existed as separate lots at the time § 230-40(G) of the zoning law was adopted.  They remain separate lots on the Villages Tax Map and are separately taxed.  Section 230-40(G) states, in relevant part: “A lot owned individually and separately on January 22, 1962, and owned individually and separately at all times thereafter which has a total area or width less than prescribed herein may be used for a one-family residence in RA and RB Districts and a two-family residence in RB Districts, provided that such a lot shall be developed in conformity with all applicable district regulations, other than the minimum lot area and lot width requirements, and with the minimum side yards set forth below.”  But for the requirement that the lots be “owned individually and separately at all times” since January 22, 1962, applicant argues that the subject lot would meet the requirements of § 230-40(G) for small lot treatment, and as such, would not require the variances now sought to construct the proposed dwelling.  While the parking area variance would still be required, applicant represents that the parking area could be reconfigured to comply with the 600 square foot requirement and the Board accepts the representation while noting that additional land disturbance would be required by the reconfiguration.

        Applicant states that when married, she and her former husband resided at 42 Morningside Drive, that husband and wife jointly owned 42 Morningside and husband was the sole owner of the abutting unimproved lot.  As a consequence of their divorce, applicant was deeded the unimproved lot and sole ownership of 42 Morningside by her then husband in 1991, pursuant to deeds drafted by her attorney.  Applicant subsequently sold 42 Morningside Drive in year 2000, and retained the unimproved lot.  Applicant states that she never intended to lose the benefit of the ordinances preferential treatment for the unimproved substandard small lot as a result of its transfer to her.  She states that sale of the unimproved lot was intended to finance her retirement.  Of course, the benefit of the small lot treatment was not hers to begin with as the lot previously was owned by her former husband, not by her.  To the extent she suffered any hardship by losing small lot treatment when she received ownership of the lot, when she also became sole owner of 42 Morningside, the hardship was self imposed by the acts or omissions of her agent, her then attorney who drafted the deeds naming her as sole transferee of the two lots.

Granting the variances might benefit the applicant by permitting its sale as a buildable lot, which one would expect to fetch a higher price than as a lot that is not buildable.  However, the property appears to have steep slopes of approximately 20 percent that are subject to other Village ordinances.  The slopes will require at least six times the permissible land disturbance, which might further impair or prevent issuance of a building permit for the proposed dwelling, for reasons unrelated to the instant zoning ordinances.  Loss of an estimated 15 to 20% of trees on the site due to construction may create erosion and privacy issues.  Applicant states that she is in contract with a building contractor to sell the lot for $65,000.00 and that she has spent approximately $12,000.00 in development costs.

Granting the variances would have a serious adverse impact on the present owners of 42 Morningside Drive.  Because of the siting of the proposed dwelling, the narrow lot width and the slope shared by the lots, the deck and windows, including bedroom windows, of the existing house facing the proposed dwelling would be closer to the proposed dwelling and its entry than is permitted by the zoning ordinance.  The loss of privacy would be exacerbated by the shared steep slope and lack of other useable property on either lot, and is inconsistent with the character of the neighborhood, in which several houses are on double lots and houses generally are more spread apart.  The Board finds that granting the variance will diminish the privacy and ability of the owners of 42 Morningside to enjoy their property and will diminish the value of the property because of the close proximity of the dwellings and lack of other useable parts of either property for outdoor entertaining and recreational activity.  The lot width and total side yard variances requested are substantial and the side yard variance, while less substantial, is meaningful regarding the next door neighbor most affected.

The applicant could have sold the unimproved lot together with her residence at 42 Morningside when 42 Morningside was sold, and thus mitigated the impact of her loss of small lot status for the vacant lot.  Undoubtedly, the sale of 42 Morningside would have fetched a higher price with the abutting unimproved lot. Applicant recently offered the vacant lot for sale to the present owners of 42 Morningside at a price of $100,000.  While the benefit sought by applicant, may not be achieved without the variances, the benefit could have been achieved had she sold the lot with 42 Morningside in 2000.  

The parking variance requested, if granted, will exacerbate an already existing lack of adequate parking in that part of the street.  Granting the variances will also exacerbate an already existing safety issue caused by what neighbors describe as poor visibility when exiting their driveways, due to the topography of the area and nature of the street.  Parking in the designated area proposed by applicant will interfere with the view of the street for cars exiting the driveway at 42 Morningside.

The requested lot area variance is substantial in that it seeks to decrease the size of a buildable lot by 888 square feet.  The existence of some other substandard lots improved prior to the zoning ordinance does mitigate the impact on the character of the neighborhood to some extent.  However, the steep slope of the property exacerbates the impact on the neighborhood making any dwelling more visible to lateral neighbors and neighbors down-slope.  

 The hardship was self-created when the two properties changed title in 1991 and, again, when applicant failed to sell the unimproved lot together with 42 Morningside.

NOW, THEREFORE, BE IT RESOLVED, that the Board hereby makes the following determination:

Rolnick  Made Motion to grant the application as requested for a lot area variance of 888 sq. ft., a lot width variance of 25 ft., a side yard variance of 1 ft., a total side yard variance of 8 ft., and an off-street parking variance of 200 sq. ft., with respect to a proposed dwelling.

Stephens  Second the Motion

Vote  0-5  Rolnick, Stephens, Sapir, Waitkins, Barlow
                   Opposed  Application DENIED

1/14/04

According to Section 230-76 (D), “Unless work is commenced and diligently prosecuted within one (1) year of the date of the granting of a variance or special permit, such variance or special permit shall become null and void.”





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                RESOLUTION


John Nikic, has applied to the Zoning Board of Appeals of the Village of Croton-on-Hudson.  Request for a total side yard variance with respect to the construction of a new chimney.

The property, at Farrington Rd, is located in a RA-5 District and is designated on the Tax Maps of the Village as Section 78.08 Block 4 Lot 42.

A public hearing having been held after due notice, this Board from the application and after viewing the premises and neighborhood concerned, finds:

There will be no undesirable change to the character of the neighborhood or detriment to nearby properties.  There were no objections to the application.

The variance requested was not substantial

The proposed variance will not have any adverse affect or impact on the physical or environmental conditions in the neighborhood or district.


Waitkins  Made Motion to grant the application as submitted
Barlow  Second the Motion
Vote:  - 5-0  In favor  Waitkins, Barlow, Sapir, Stephens, Rolnick



1/14/04

According to Section 230-76 (D), “Unless work is commenced and diligently prosecuted within one (1) year of the date of the granting of a variance or special permit, such variance or special permit shall become null and void.”













                                RESOLUTION


Hollis & Mark Anzani, has applied to the Zoning Board of Appeals of the Village of Croton-on-Hudson, request for renewal of  an expired variance that was granted on 6/12/02 and expired on 6/12/03, for a lot width and lot area, side yard, total side yard, and front yard variances with respect to a proposed deck and addition.

The property, at 12 Park Trail, is located in a RA-25 District and is designated on the Tax Maps of the Village as Section 68.17 Block 1 Lot 18.  

A public hearing having been held after due notice, this Board from the application and after viewing the premises and neighborhood concerned, finds:


There will be no undesirable change to the character of the neighborhood or detriment to nearby properties.  There was no opposition to the variance request.

The proposed variance will not have an adverse effect or impact on the physical or environmental conditions in the neighborhood or district.

There is no reasonable way to achieve the benefit sought without a variance due to the constraints of the shape of the lot.

NOW, THEREFORE, BE IT RESOLVED, that the application is hereby GRANTED with the following condition.

                      Lattice work must be installed under the first floor deck.


Rolnick  -  Made Motion to grant the application as submitted for a Minimum side yard of 26 ft. on left, 5 ft. on right and total side yard of 31 ft., front  yard variance of
1 ft. and a lot area variance of 14,690, and lot width variance of 73 ft.

Stephens  Second the Motion

Vote:      5-0  In Favor -  Rolnick, Stephens, Sapir, Waitkins, Barlow


1/14/04