BOARD OF APPEALS MINUTES
Monday, November 23, 2009
7:00 p.m.
Present: Chairman Lisa Beauvais, Vice-Chairman Gregory Neffinger, Secretary Christine Kumiega and Alternates James Bodurtha and Chester Zymroz.
The Chairman called the meeting to order at 7:02 p.m.
1. Acceptance of Minutes
Ms. Beauvais moved to approve the minutes of June 22, 2009, as presented; Mr. Bodurtha second. Ms. Beauvais, Mr. Bodurtha, and Mr. Zymroz all in favor.
Ms. Kumiega moved to approve the minutes of September 28, 2009, as presented; Mr. Zymroz second. Ms. Beauvais, Ms. Kumiega, and Mr. Zymroz all in favor.
Ms. Beauvais moved to approve the minutes of October 26, 2009, as presented; Mr. Bodurtha second. Ms. Beauvais, Mr. Neffinger and Mr. Bodurtha all in favor.
2. Public Hearings
Ms. Beauvais said the first and third hearings are related to the same property and the Board would take the hearings out of order and hear the 7:05 p.m. hearing first.
7:05 p.m. (7:05 p.m.) – Debra & Glenn MacDonald (Variance) – Variance from Section 9.034 of the Zoning Ordinance that requires a 30 foot separation between driveways for the property located at 304 Hillcrest Avenue in the Residence A-2 (RA-2) zoning district. Continued from October 26, 2009.
Ms. Beauvais asked for any additional information that the applicant had to submit. Ms. Beauvais said a plan was provided to the Board with some details of the driveway to see if the driveway would work.
Ms. Beauvais said that after reviewing the minutes of the last meeting, she wanted to ask if Mr. Neffinger had visited the applicant’s property and assisted with the plans for the driveway. Mr. Neffinger said he did not contact the applicant and he did not see the site.
Ms. MacDonald explained the plan she submitted. She said she found that she could make the driveway 26 feet deep, which is what is required. Ms. Beauvais asked how the driveway would be positioned. Ms. MacDonald said the driveway will go straight back and would be able to meet the specifications of the town. She does not know the slope until the driveway is actually done, but it would be minimal and not require a wall of any type.
Ms. Beauvais asked Mr. Werbiskis if we know the slope based on the topography? Mr. Werbiskis said based on the GIS, there is a 3 to 4 foot elevation difference between the edge of the paved surface and the back of the paved area. This could be accommodated by bringing in additional fill.
Ms. Beauvais said the original variance issue needs to be addressed and the criteria necessary to grant a variance was not discussed at the last hearing. Ms. Beauvais asked the applicant what the legal hardship would be for granting a variance on the property.
Ms. MacDonald said the existing driveway is a foot off the property line so this would widen the driveway to accommodate an additional vehicle. There is a big oak tree and an electrical pole to the right of the oak tree, as well as a cement wall behind the tree. The new driveway would begin where that wall ends. At some points there is a three foot drop off in many spots. The hardship is there is no on-street parking during certain parts of the year and they have three cars to park.
Ms. Beauvais asked for comments from the Board. Mr. Neffinger said looking at the site there is a topography issue there. This neighborhood used to be all farms long before the zoning laws were put in place. Ms. Beauvais did not agree that the topography would come into play because it is not hindering the project. There is a pole and an oak tree in the way. Mr. Neffinger said if you have to bring in soil there could be problems with the foundation. Ms. MacDonald said the grade is steeper closer to the house than on the left side. Mr. Neffinger asked if it is possible to be 30 feet away from the neighbor? Mr. Werbiskis said it would be right against the house. Ms. MacDonald added the electric pole would have to be moved.
Ms. Beauvais said the whole driveway issue only came about once the berms were in place on the street. The driveway would be against the deck and not the house. Ms. MacDonald said in order to put it there, the slope is much more dramatic. It is 3 feet deeper than the left side of the property. She said she could not put a driveway sloping down because of the winter weather. Ms. Beauvais said even if it slopes a little, it would be feasible to put a driveway next to the deck. Mr. Werbiskis said the contours are one foot and derived from aerial photos, so it may not be completely accurate.
Ms. Beauvais said the applicant stated the hardship is there is nowhere to park their cars.
Mr. Bodurtha asked if we have heard from the abutting neighbor on this matter? Ms. MacDonald presented a letter from the neighbor. Ms. Beauvais read the letter into the record (see file). Ms. Beauvais asked for questions from the Board.
Mr. Neffinger said he had no problem with the location of the driveway where it is, it is hard to say if it would be better on the other side of the oak tree.
Ms. Beauvais asked for comments from the audience. No comments followed.
Ms. Beauvais moved to close the public hearing; Mr. Neffinger second. UAV.
Ms. Beauvais said she was concerned that the new curbing was the problem for the applicant and it is a problem for many residents on this street and now the berm is installed, people do not have a place to park. This will set a precedent for all the residents on Hillcrest. Mr. Bodurtha said he was concerned from a legal standpoint that the Board has not heard a legal argument for the soil, shape, or topography of the lot.
Mr. Werbiskis said an issue arose when the applicant wanted to surface the driveway and needed a permit for paving the access driveway in the public way. There will be numerous requests like this in the future.
Mr. Neffinger felt this was a pre-existing, non-conforming issue because the driveway was there. Ms. Beauvais said the Board is hearing a variance application this evening. Mr. Neffinger said he had no problem granting the variance due to the topography issue on the property. Mr. Bodurtha said how is it determined how many parking spaces should be allowed per house? Ms. Beauvais said even to park one car they would need a variance based on the dimensions. Mr. Neffinger said where she wants to put the driveway is not a big problem. Mr. Bodurtha said the hardship is that they need parking for more than one car. Mr. Neffinger said that is a hazard because they need to get the cars off the street.
Ms. Beauvais said she does not feel the requirements have been met for a variance. This could be fixed by bringing in fill and the driveway is not next to the house, it is next to the deck. Mr. Neffinger said he felt it should be a special permit. If denied the variance then the applicant cannot come back for two years on this matter. Mr. Neffinger said it is going against the intent of the bylaw to have variances for all driveways.
Mr. Bodurtha said he agreed with the Chair, the requirements to grant a variance are very strict. Ms. Beauvais suggested a motion be made in the affirmative and then the members could vote.
Mr. Neffinger moved to grant the variance for the property at 304 Hillcrest Avenue to allow the driveway within 14 feet of the abutting neighbor’s driveway owing to conditions of the topography of the parcel and the existing house with the steeply sloping lot; Mr. Bodurtha second. Mr. Neffinger in favor; 2 opposed.
7:00 p.m. (7:42 p.m.) – Oksana Vlasynk (Special Permit) – Special permit to allow for a non-conforming structure to be used for retail and storage purposes at the property located at 476 Main Street in the Business A (BA) zoning district. Continued from 9/28/09.
Ms. Kumiega said she had a business conflict of interest with the applicant’s attorney, Mr. Komack, as they have shared employment space in the past and to avoid the appearance of impropriety, she would have to recuse herself from this hearing.
Ms. Beauvais said there are two hearings on this property, a special permit and a variance. The special permit will not be able to be heard because of the conflict and the hearing would have to be closed, rescheduled and republished.
Ms. Kumiega moved to close the hearing; Mr. Zymroz second. UAV.
Ms. Beauvais said a new special permit hearing would be posted and published and held on December 28, 2009, at 7:00 p.m.
7:10 p.m. (7:45 p.m.)– Attorney Stanley Komack (Variance) – Variance from Section 5-2 of the Zoning Ordinance to allow for a residential use in a Business A (BA) zoning district at the property located at 476 Main Street.
Ms. Beauvais asked Attorney Komack to highlight the requirement for variance and to give the Board a good indication of what the property would be used for.
Attorney Komack of 117 Park Avenue came forward and introduced the applicant, Oksana Vlasynk, William Devlin, architect, and the original contractor Michael Krasnov.
Attorney Komack presented pictures to the Board, cost estimates and a financing approval letter for the Board to review. Also included was a copy of the deed when the applicant bought the property on February 22, 2006. After the purchase she intended to continue the mixed commercial residential use of the property, which has been in existence since 1925. She attempted to get tenants and could not obtain financing and unbeknownst to her she was not aware about of the regulations regarding the use at the property and after two years of non-use she lost the grandfathering. She did not intend to abandon the property. Attorney Komack cited a case Warren versus Zoning Board of Appeals, owing to circumstances with the soil, shape, or topography of the land or the structure
thereon. The argument in this case is the unique structure on the property. The Assessor’s card states the property is Residence C, even though it is a Business A zone. This is a conjoined structure of a storefront attached to a three story, two family unit. The structure shares a basement and a wall; this is what makes it unique. Hill Street is a residential area, but the applicant would like to keep the mixed use. Attorney Komack said there has been talk of the Town wanting to demolish this building, and if this were done it could affect the whole building because they share a wall and the basement.
Ms. Beauvais clarified that their argument is there is something unique about the structure of the building because it is a storefront with a residential use that shares walls and a basement. Ms. Beauvais asked if there was no viable commercial use for the residential portion of the building? Perhaps it could be renovated into office space. Attorney Komack said it has been a mixed use for the past 90 years, so there may be other options that it could be used for, but other issues may come up. Ms. Beauvais said it could be more costly, but it could be done, it could be an office or a store; there are other viable uses. Attorney Komack said the existing use is the best use because this is what it has been for so long. Ms. Beauvais said the storefront and residential
use is very similar to others in the neighborhood. Attorney Komack said it is a conjoined mixed use and that does not mean that this situation is not unique. Hill Street and Main Street are predominantly in the Residence C zone. One parcel out of two or three gives it its uniqueness. Attorney Komack noted in Exhibit B, 464 Main Street is Business A and 506 Main Street is in a Residence C zone, and nine others on Hill Street have the same pre-existing, non-conforming uses. There is a nice mixture within this area. There is a substantial financial hardship to the applicant. The property is assessed at $248,500 and if no residential use is allowed she would only have the land left and it would be a substantial hardship if she could not use for residential based on the uniqueness of the structure. As long as the non-conformity is not being increased, she should not be forced to demolish the structure.
Ms. Beauvais said the hardship “B” on page four of the memorandum relies on a financial hardship of what the land is worth, and the best use as commercial and residential mix because it is closest to what she paid. Chapter 40A is clear that a financial hardship alone is not reason for granting a variance. Ms. Beauvais cited cases as examples and financial hardship must not be unique to the actual petitioner, but any and all owners of the property. Granting a variance to allow the owner to increase profits does not create a hardship. The courts are clear on this and there need to be other measures of hardship to grant a variance.
Attorney Komack said the hardship is the uniqueness of the structure being conjoined and it being that way for 90 years. Financial hardship is a large part of this matter across the board. Ms. Beauvais said no one could use that property for residential, but that does not mean it cannot be used for something else. Attorney Komack argued it has been used mixed business and residential for 90 years so why change that now. Ms. Beauvais said what may have worked 90 years ago may not longer be feasible. The building now needs to come into conformity with the bylaws. Attorney Komack said the neighborhood has not been changed. Ms. Beauvais said the applicant’s arguments for variance are the personal financial hardship and that she cannot use the property for
her intended use.
Mr. Neffinger asked Mr. Werbiskis if there was anything pertinent in the Master Plan for the Merrick area? Mr. Werbiskis said nothing specific to this property. Union Street and Main Street are mixed uses. This may change in the future to allow mixed uses in these areas, but right now it is currently not permitted without a variance.
Mr. Neffinger said, from an architect’s perspective, the problem with tearing down a building like this is that it changes the whole fabric of the neighborhood when buildings are not allowed to continue the uses that they always had.
Mr. Zymroz said the basis for the variance is the structure’s conjoining wall and basement. Attorney Komack said, as in exhibit C, there are many mixed residential and commercial uses in this area and J & T was there for many years and the use has been tested to the public satisfaction. Ms. Beauvais asked what the intended use of the storefront would be. Attorney Komack said it would be a quick-stop commercial use like the previous grinder shop. Ms. Beauvais asked if the applicant would run it herself or lease? Attorney Komack said she would lease for that type of tenant, and with on-street parking that would be sufficient. Mr. Neffinger said if building was all commercial then parking issues may arise.
Mr. Bill Devlin, Architect for the applicant, said he has been inside the building four or five times. The framing that he has seen has been in good condition. Generally, the house is in excellent condition as well as the storefront. Mr. Neffinger asked what is the use of the multi-story building? Mr. Devlin said the single family home has been converted to a two family and then a third floor unit, which is unsafe as it exists. The third floor could be used as additional space for the second unit. Mr. Neffinger said if converted to a commercial use, how viable would it be? Mr. Devlin said it would have to be handicap accessible and there are issues with the bathroom, as well as parking issues. The rooms are very small. Attorney Komack showed the
before and after pictures showing a secure and cleaned up building and the nuisance issues from the Health Department have been addressed.
Mr. Zymroz asked the number of parking spots available on Hill Street. Attorney Komack said it looks as if there are at least two spaces, four if necessary. Ms. Beauvais said the matter of use would be discussed with the special permit hearing. The issue this evening is a variance to allow for a mixed commercial and residential use.
Mr. Neffinger asked how long the structure has not been used as residential. Mr. Werbiskis said it has not been used for residential for at least three and a half years. Mr. Neffinger said in building code you cannot lose your certificate of occupancy. Mr. Werbiskis said our zoning states if the use of a property ceased for 24 consecutive months it would lose it grandfathering.
Mr. Zymroz said at the previous special permit hearing, the Health Department gave a statement regarding asbestos materials; was any of that removal figured in the repair estimate? Attorney Komack said he had asked the Heath Department for the asbestos report and they had just received it over the weekend and they will get the cost estimate for that removal. Mr. Zymroz asked if they were aware of any asbestos at this time? Attorney Komack said he received the report from the Health Director and now they have a new contractor who was not able to address that issue because he has to get a specialist for the asbestos, so the contract submitted does not include the asbestos removal.
Mr. Werbiskis noted the Board of Health hired ATC Associates and a report was submitted on June 30th indicating the amount of hazardous materials at the site and the condition of the property. Attorney Komack said they were prepared to deal with that. Mr. Zymroz asked if the applicant would deal with this no matter what the cost would be and take care of all the hazards? Attorney Komack said yes, they would bring the property up to sanitary code.
Mr. Neffinger said if the Board could give a variance for the use of the property they should be able to give a variance for the two-year grandfathering window.
Ms. Beauvais asked for further comments from the Board and audience. No comments followed.
Ms. Beauvais moved to close the public hearing; Mr. Zymroz second. UAV.
Ms. Beauvais said in order to grant a variance there is a legal hurdle that must be overcome, regardless of the two year window. Circumstances that are unusual are the actual structure itself, not the soil, shape, or topography. The structure shares a wall and foundation. Ms. Beauvais said she did not agree with the statement that there was no viable commercial use for the property. It may be costly to the applicant, but there are many possibilities for a storage use or smaller office space. Ms. Beauvais said she finds it difficult to find a hardship in this matter. The financial hardship is the cost of the building, if it is unusable the applicant would suffer a financial loss, but there are numerous cases on this and under Chapter 40A, you cannot use financial
reasons as a hardship. That is why everyone comes before the Board, because there is a financial hardship in not being able to use their property. This is a very similar building to others in the area for the past 80 or 90 years. Ms. Beauvais said she could not find a hardship for granting the variance.
Mr. Neffinger said the hardship is not being able to use the building in the way it was designed or constructed. To reconstruct the property for commercial uses would be a nightmare. The hardship would be to change the building to a use it is not designed for.
Mr. Zymroz said it has to be a hardship for all property owners, not just this applicant. It may be difficult to make the building commercial, but it is feasible.
Mr. Neffinger said if the structure is not allowed to be residential, then it may create a hardship with the parking. Ms. Beauvais said the Board does not know what the use will be or if they could take part of the building down to create more parking. Mr. Neffinger said parking requirements for a commercial structure are much higher than residential. The residential use works. Ms. Beauvais said the building may have to be reconstructed, but there are other viable options. Mr. Zymroz said the four spaces are adequate for a residential use, if it were a three family, then there is not adequate parking. Mr. Neffinger said he was concerned this building would be a parking lot if they did not get their variance.
The Board discussed allowing a withdrawal. Ms. Beauvais said Attorney Komack brought a good argument and presented a hardship as best he could.
Ms. Beauvais moved to reopen the public hearing; Mr. Zymroz second. UAV.
Ms. Beauvais offered the option of withdrawal or the Board would vote and could possibly deny the variance.
Mr. Neffinger suggested the applicant meet with the mayor to come to a resolution. Ms. Beauvais said it was not prudent to advise applicants to sit down with the Mayor, and he would defer them to the Zoning Board for the decision.
Attorney Komack requested a withdrawal without prejudice.
Ms. Beauvais moved to accept the withdrawal without prejudice; Mr. Neffinger second. UAV.
3. New/Old Business
4. Date of Next Meeting
The next regular meeting of the Board will be held on Monday, December 28, 2009, at 7:00 p.m.
5. Adjournment
Ms. Beauvais moved to adjourn the meeting at 9:10 p.m.; Mr. Zymroz second. The vote was unanimous.
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Christine Kumiega Provost
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