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HomeMy WebLinkAbout2000_04_26 Zoning Board of Appeals Minutes MINUTES OF THE REGULAR MEETING OF THE ZONING BOARD OF THE TOWN OF MAMARONECK APRIL 26,2000,IN THE SENIOR CENTER,TOWN CENTER 740 WEST BOSTON POST ROAD MAMARONECK,NEW YORK Present: Thomas E.Gunther,Chairman J.Ren6 Simon Arthur Wexler Paul A.Winick Absent: Jillian A.Martin Also Present: Judith M.Gallent,Esq.,Counsel 19 Ronald A.Carpaneto,Director of Building y L-4/ Y Barbara Terranova,Public Stenographer Terranova,Kazazes&Associates.Ltd. ; %r& 49 Eighth Street Mpy tffitAdt0 ' New Rochelle,New York 10801 F �pWN c9 µne.NfV Marguerite Roma,Recording Secretary 44410110 CALL TO ORDER The meeting was called to order by Chairman Gunther at 7:50 p.m. Mr.Gunther stated that the Minutes of the previous meetings will be handled at the end of this meeting. Mr.Gunther read into the record a letter received from the applicant for the below-listed matter requesting an adjournment: APPLICATION NO. 1-CASE 2357(adjourned 6/23/99;8/19/99 to 9/99;9/23/99;10/27/99;11/23/99 to 1/26/00 to 4/26/00) Appeal of Byron Place Associates/Hoffmann of a determination of the Building Inspector that the current use of the premises located at 10 Byron Place and known on the Tax Assessment Map of the Town of Mamaroneck as Block 132,Lot 410 is not a legal non-conforming use,or in the alternative,an application for a use variance to permit light industrial use in an R-7.5 Zone District. On a motion made by Mr.Gunther,seconded by Mr.Simon,it was unanimously RESOLVED,that the Public Hearing of case#2357 be,and hereby is,adjourned to the May 24, 2000 Zoning Board meeting. Mr.Gunther advised those present that there are only three Board members present at the moment. A fourth member will be arriving late and the fifth member will not be present. The Board will be happy to move forward, but for any action to occur there must be three Board members in favor of an application. When an application is called the applicant should advise the Board how to proceed,whether the Board should vote on the application or adjourn until all the members of the Board are present. Zoning Board April 26,2000 Page 2 The Secretary read the next application as follows: APPLICATION NO.2-CASE 2386(adjourned 2/29/00;3/22/00) Application of Veronique and Marshall Parke requesting a variance to legalize an existing one-story addition. The addition as built has a rear yard of 16 ft.where 25 ft.is required pursuant to Section 240- 36B(3); and further, the addition would increase the extent by which the building is nonconforming pursuant to Section 240-69 for a residence in an R-15 Zone District on the premises located at 11 Briar Close and known on the Tax Assessment Map of the Town of Mamaroneck as Block 105,Lot 421. Mr.Gunther stated that this application has been held over from prior meetings,and asked if the applicant is present. James Fleming,the architect for the project,said that the owner is not yet present but is expected. He will wait. Mr.Gunther said there are two applications regarding this residence,the other as listed below: APPLICATION NO.3-CASE 2387(adjourned 2/29/00;3/22/00) Application of Veronique and Marshall Parke requesting a variance to construct a one-story rear addition. The addition as proposed has a rear yard of 6 ft.where 25 ft.is required pursuant to Section 240-36B(3); and further, the addition would increase the extent by which the building is nonconforming pursuant to Section 240-69 for a residence in an R-15 Zone District on the premises located at 11 Briar Close and known on the Tax Assessment Map of the Town of Mamaroneck as Block 105,Lot 421. Mr.Gunther informed Mr.Fleming these matters will be called later in the evening. Mr.Gunther then asked if the following applicant was present: APPLICATION NO.4-CASE 2394 Application of Mr.&Mrs.Paul McNulty requesting a variance to enlarge an existing second floor and first floor wood deck. The second floor alteration and addition as proposed has a side yard of 7.0 ft.where 8.0 feet is required pursuant to Section 240-39B(2)(a);a total side yard of 14.35 ft.where 18 ft.is required pursuant to Section 240-39B(2)(b);a front yard of 29.75 ft.where 30.0 ft.is required pursuant to Section 240-39B(1). The deck extension as proposed has a rear yard of 18.9 ft.where 25.0 ft.is required pursuant to Section 240-39B(3);and further,the alterations and additions would increase the extent by which the building is nonconforming pursuant to Section 240-69 for a residence in an R-6 Zone District on the premises located at 49 Myrtle Boulevard and known on the Tax Assessment Map of the Town of Mamaroneck as Block 124,Lot 553. These applicants were not present. Mr.Gunther asked if the applicants for case#5 were present. The attorney for the applicant was present,not the applicants,and said he is prepared to proceed. The Secretary read the next application as follows: APPLICATION NO.5-CASE 2395 Application of John C.Woodruff requesting a variance to construct a one-family dwelling. The one-family dwelling is proposed to be built on a newly subdivided parcel which has a frontage of 65.56 ft.where 75.0 • Zoning Board April 26,2000 Page 3 ft.is required pursuant to Section 240-38A(2)for a building lot in an R-7.5 Zone District on the premises located at 96 Weaver Street and known on the Tax Assessment Map of the Town of Mamaroneck as Block 406,Lot 47. Anthony A.Carbone,with the law firm of Berlingo&Carbone,320 Westchester Avenue,Port Chester, appeared to represent the applicants, Dominick and Casimiro Marchese, the contract vendees for this property which is located at 96 Weaver Street,Block 406,Lot 47,in the Town of Mamaroneck. Mr. Carbone prepared a summary,which is a part of the record,marked exhibit#1. Mr.Winick,the fourth Board Member,arrived. Mr.Gunther said there are now four of the five Board Members present. Mr.Carbone can either proceed or not proceed. Mr.Carbone said he would like to proceed. He said that the owners,the Roxburys,should arrive shortly. Mr. Carbone said the property is located in an R-7.5 Zone District. It is an irregular shaped parcel, approximately 140 ft.on Weaver Street frontage,approximately 126 ft.in depth. It is presently a mixed use property,a preexisting,nonconforming use which houses Grant's Florist,a commercial use. It is part residential and part commercial. Mr.Carbone reviewed the current survey of the property with the Board explaining the location of the buildings on the property;i.e.a greenhouse located on the property,a retail store,and a two-story house occupied by the Roxbury's son. He stated that the Roxburys live two doors away. It is originally a subdivision application,which was filed with the Planning Board,along with a long form EAF. A survey was submitted and two appearances were made before the Planning Board on 12/8/99 and 2/9/00. At the 2/9/00 meeting,the Planning board issued a Negative Declaration,maintaining there was no significant environmental impact of this project and approved the subdivision. They also appeared before the Coastal Zone Management Commission(CZMC) who had no other comments. The two comments they had would be the improvement of the site with the reduction of the amount of impervious area. The proposal is to subdivide the property and have less impervious surface. Mr.Carbone said the application before the Planning Board was to take one lot and divide it into two lots both fronting on Weaver Street. Lot 47.1 complies with all aspects of the zoning ordinances and requires no variance. Lot 47.2 requires one variance for the frontage where 75 ft.is required and the applicant has 65.56 ft. He said they are aware of the criteria set forth in Town Law Section 261.1 and the five issues the Board looks at which he then reviewed: 1. There are ten parcels in the immediate vicinity that are on lots substantially smaller and would probably have required a larger variance than the variance being requested for this lot and proceeded to give examples. The requested variance would be in conformity with the area. 2. Weaver Street is curved. There is a gore strip,which is owned by the County. He explained how the property curves in,there is no other way to get the access needed and referred the Board to pictures submitted of the site. The request is minimal. Required is 75 ft.,the request is for 65.56 ft. 3. It will not have an adverse impact on the physical or environmental conditions of the neighborhood or district. Two single-family houses are to be constructed,a permitted use in this area. The present use is an existing,nonconforming use. It is the goal of the zoning law that nonconforming uses will some day cease. 4. In regard to self-created hardship,the frontage of the property is only so much. To make it a viable project,they can only proceed if two houses are put on it. Mr.Carbone said he also represents the people that are buying the adjacent house and advised them of this particular project. They had no opposition to the project. He said the Roxburys,the owners and operators Zoning Board ' April 26,2000 Page 4 of Grants Florist,will remain in the area,even though they are retiring from the business. He reiterated the Roxburys want to build two houses,reviewed the design thoughts from the architect for the house that requires the small variance and also the house on the conforming lot. He said nothing is written in stone with respect to design,etc. Mr.Wexler asked if the site plan presentation is just a suggestion. Mr.Carbone said what is presented is fairly close to what they want to do. He said there was an issue that came before the Planning Board about the driveway and backing up onto Weaver Street. Mr.Carbone suggested putting a hammerhead in the driveway,so there would be no backing out onto Weaver Street. That is what is intended to be accomplished. Ms.Gallent said that was required by the Planning Board. Mr.Carbone said they have all the required on-site parking. Mr.Wexler said the plan as presented shows the driveway coming within 2 ft.of the property line. Mr.Carbone said when the application was reviewed,it wasn't one of the required variances. Mr.Wexler said if that is so,he can't pave within 5 ft.of the property line,with which Mr.Carpaneto agreed. Mr.Carbone said he can move it over. Mr.Wexler said he also lives on Weaver Street on a gentle curve and it is really difficult to back out onto Weaver Street. Mr.Carbone said the gore strip helps the situation. A discussion continued regarding this matter. Mr.Carbone said they are proposing a less intensive use than the existing use for the property. Mr.Wexler asked if the driveway on the house can be flipped,as an alternative. Mr.Carbone said he doesn't see a problem. Mr.Gunther asked what is proposed for servicing the gore strip. Mr.Carbone said they don't own the gore strip. They are putting the driveway up to it. Mr.Wexler asked how they will go from that point to the road. Ms.Roxbury said there is blacktop. No one goes directly onto it. Mr.Gunther said what currently exists today is that the curve is on Weaver Street as it abuts the gore strip. What exists from the curb today to the property line is gravel and grass. Ms.Roxbury said it's blacktop. Mr.Gunther said when construction is done he would assume the contractor will to something. Ms.Roxbury said he can't,because it belongs to the state. Zoning Board April 26,2000 Page 5 Mr.Gunther said something has to be done,because you can't come out of that driveway where the second house is as you can't go straight out unless driving over the curb. Mr.Carbone said there is a curb cut. Ms.Roxbury said there are two driveways. Mr.Gunther pointed out the gore strip on the plan and explained how it is currently configured. He asked what is proposed to be changed. Mr.Carbone said nothing is proposed with respect to the gore strip. A discussion ensued regarding Weaver Street and backing out onto the gore strip. Ken Roxbury,one of the owners of the property,said the depth of the gore strip is 25 ft. Mr.Gunther said a letter was received from the Westchester County Planning Department,the matter was reviewed,they had no comment and it was a matter for local determination. Mr.Gunther asked if there were any other questions from Board members. Mr.Wexler said he still has a problem with it and asked for some explanation on the site plan presented. He said to make the transition from the property line to the gore strip,is the applicant going to put a driveway in there or does it exist. Mr.Roxbury said it already exists. Lorraine Roxbury,one of the owners of Grants Flower Shop,said it has existed for 70 years. Mr.Wexler again questioned the survey. Mr. Carbon addressed Mr. Wexler's questions. He said the gore strip services this property and the adjacent property. Mr.Wexler questioned the terminology of the wording,"gore strip". Mr.Carbone said the title company used that terminology. The strip is actually owned by the County, should have been maintained by the County,but has been maintained by Grants Florist for years. Mr.Gunther asked if there were any questions from the public. Ms. Soriano, of 84 Weaver Street, addressed the Board. She said her property abuts the Roxbury property. Ms.Soriano pointed out where it states macadam parking on the Roxbury's map,said that was just put in about seven years ago and they paved Weaver Street illegally. That area is illegally paved blacktop. If it had been legal, she would have been able to blacktop her area. The result of that blacktopping has made a puddle in the front of Ms.Soriano's property,because of the incline coming in off of Weaver Street. She has no problem with the applicant building,but she was assured she would have a 10 ft.distance from her property line. Ms.Soriano's only other question of the architect is whether they are going to put in central air conditioning. If so,where will the units be put,in back of the garage as shown or along side Ms.Soriano's property? Mr.Gunther asked that Ms.Soriano address her questions to him,and if the applicant wishes to respond he will be given time to do so. Zoning Board April 26,2000 Page 6 Ms.Soriano said the state has always owned the gore strip,because she has been living in that area since 1939,and the state always came by and cut the grass in front of Grants property and her property. The war came along and they no longer maintained it. She maintains it. She put in the gravel. She has never had any service from the Town or state removing snow or any other thing. She has an exit from her driveway onto Weaver Street,so there are actually three entrances. Grants has always been allowed to park in front of her house. That was a stipulation. Then they installed their macadam parking,which removed most of the parking from in front of her house to the front of their greenhouse. That blacktopping is really illegal,she objects to that and would like it removed if possible. Mr.Gunther asked if there were any other questions. Ms.Soriano said as long as she sees that the deck is going to be on the other side of her house that is fine, because she doesn't want the smell of a BBQ in her bedroom windows,as her bedrooms are all on that side. Mr.Winick asked if Ms.Soriano looked at the site plan and saw the placement of the two houses,because he is having trouble visualizing where the house closest to Weaver Street is going to be in relation to Ms. Soriano's property. Mr.Carbone explained. Mr.Winick said Ms.Soriano has an understanding where it is going and asked if she thinks there will be an adverse impact on her use of her property as a result of the placement. Ms.Soriano said she thinks it will,as she only has a 112 ft.front in an R-7.5. If she attempts to sell her property for development,she does not know how that can be done. She probably would not be able to get a variance. However,her property goes 200 ft.deep. Mr.Winick said this property is close to Ms. Soriano's property because of the way the her house is placed,but Mr.Winick is concerned whether Ms.Soriano is concerned about the placement of that house so close to the property line. Ms.Soriano said she doesn't like it,but there is nothing she can do because the Board will allow it. Mr.Winick said that is not so,but he is trying to understand what Ms.Soriano thinks the impact will be. Ms.Soriano said the impact will be on resale. Mr.Wexler said in looking at house presented,it is probably the most benign side of the house. The closest point from the garage,which is 10 ft.from property line,is probably about 15 ft.from that point. After further discussion,Ms.Gallent said this application is not for a side yard variance,only for frontage. Mr. Carbone said the air conditioning equipment will be located wherever they want. The deck will remain in the spot as indicated,as the applicant has the necessary 10 ft.side yard. He said that Mr. Wexler had suggested flipping the house,but where it is will have less of an impact. Mr.Wexler explained where his suggestion came from. Mr.Carbone said the mechanicals can be located on the other side. Ms.Soriano said anyone that came into the greenhouse to shop was allowed to use the exit at the head of her driveway. There was no problem about that. They could get in it three different ways and exit three different ways. Zoning Board April 26,2000 Page 7 Mr.Gunther asked Ms.Soriano if people were driving on her property or the gore strip,which is County property. Ms.Soriano said they were driving on the gore strip. Mr.Gunther explained Mr.Wexler's concern and said the gore strip is where it is and doesn't belong to anyone other than the County. Mr.Gunther asked if there were any other questions from the public on this application. There being none,on motion of Mr.Wexler,seconded by Mr.Gunther,the following resolution was proposed and ADOPTED unanimously,4-0. RESOLVED, that this is a Type II action having no significant impact on the environment pursuant to 6 NYCRR§617 et seq. Accordingly,no further action under SEQRA is required. On motion of Mr.Winick,seconded by Mr.Simon,the following resolution was ADOPTED: WHEREAS,John C.Woodruff has submitted an application to the Building Inspector,together with plans to construct a one-story dwelling. The one-family dwelling is proposed to be built on a newly subdivided parcel which has a frontage of 65.56 ft.where 75.0 ft.is required pursuant to Section 240- 38A(2)for a building lot in an R-7.5 Zone District on the premises located at 96 Weaver Street and known on the Tax Assessment Map of the Town of Mamaroneck as Block 406,Lot 47;and WHEREAS,the Building Inspector has declined to issue such permit on the grounds that the plans submitted failed to comply with the Town of Mamaroneck Zoning Ordinance with particular reference to Section 240-38A(2);and WHEREAS,John C.Woodruff submitted an application for a variance to this Board for the reasons set forth in such application;and WHEREAS,this Board has examined the plans,inspected the site,reviewed the application and has heard all persons interested in this application after publication of a notice thereof and a hearing thereon;and WHEREAS, the Zoning Board of the Town of Mamaroneck makes the following findings as required by New York State Town Law§267-b: 1. The Board finds that the benefit to the applicant from the granting of the variance outweighs any detriment to the health, safety and welfare of the neighborhood or community. In reaching this conclusion,the Board considered the following factors: A. Based on the evidence presented and upon personal inspection of the property, the Board finds that there will not be an undesirable change produced in the character of the neighborhood,or a detriment to nearby properties created. The variance will result in the removal of a commercial use from a residential zone and will,therefore,be an enhancement to the character of the neighborhood and nearby properties. Among other things,the residential use will result in the reduction in vehicular traffic that impacts the adjoining property. B. Given the shape of the lot, the applicant cannot achieve his goals via any reasonable alternative that does not require an area variance. Clearly,given the width of the lot,the variance is necessary. Zoning Board April 26,2000 Page 8 C. Given that the side yard setbacks are conforming,the variance is not substantial for the same reason as stated in addressing the first factor. Each parcel also exceeds the lot area requirement for an R-7.5 zone.The coverage and the front yard setbacks are all conforming as well. D. The grant of the variance will not result in an adverse impact on the physical or environmental conditions in the neighborhood or district. Indeed,traffic will likely improve. E. Clearly, there has not been any self-created difficulty. This is an historical problem in this Town. Here we are actually correcting an historical anomaly, which is a commercial use in a residential zone. F. The granting of this variance is in harmony with the general purposes and intent of this Ordinance and will not be injurious to the neighborhood or otherwise detrimental to the public welfare. G. The variance is the minimum necessary to alleviate the difficulty detailed in the application yet also preserves and protects the character of the neighborhood and the health,safety and welfare of the community. H. The strict application of the Zoning Ordinance and the Town Code would deprive the applicants of the reasonable use of the land/or building,and the variance granted by this Board will enable such reasonable use. ( NOW,THEREFORE,BE IT RESOLVED,that the subject application be and the same is GRANTED,subject to the following conditions: 1. This variance authorizes the construction limited to that detailed on the plans presented and no other. 2. The applicant shall obtain a building permit within six(6)months of the filing of this Resolution. 3. The building permit shall be void if construction is not started within six(6)months and completed within two(2)years of the date of said permit. 4. Construction shall be in substantial compliance with the plans submitted in connection with this application. This decision shall be filed with the Town Clerk as provided in Section 267-a(2)of the Town Law. Mr.Gunther informed the applicant to see the Building Department during regular business hours for a permit. Mr.Gunther recalled application No.2,as follows: The Secretary read the next application as follows: APPLICATION NO.2-CASE 2386(adjoumod 2/29/00;3/22/00) Zoning Board April 26,2000 Page 9 Application of Veronique and Marshall Parke requesting a variance to legalize an existing one-story addition. The addition as built has a rear yard of 16 ft.where 25 ft.is required pursuant to Section 240- 36B(3); and further, the addition would increase the extent by which the building is nonconforming pursuant to Section 240-69 for a residence in an R-15 Zone District on the premises located at 11 Briar Close and known on the Tax Assessment Map of the Town of Mamaroneck as Block 105,Lot 421. James Fleming,the architect for the project,appeared,along with Mr.&Mrs.Parke,the owners of the property. Mr.Fleming informed the Board that the matter was before the Board in February,at which time the matter was referred to the Coastal Zone Management Commission(CZMC)whom they met with in March. During that time,they got a surveyor for the rear yard,which shows the actual position of the rear yard which he presented to the Board,marked exhibit#1. He said they are now requesting a variance for an 11 ft. back yard. He said the roof was modified since the last discussions and explained the revisions which cuts back the triangular visual aspect of the roof. He explained what was shown at the CZMC meeting;the 11 ft.directly behind the house,the rock formations and where the Trail is directly at 90 degrees from the base of the house. The house cannot be seen and there will be no visual impact on the Trail. Mr.Fleming said the project in not in a wetland. Mr.Fleming said the project was discussed at the CZMC meeting;its visual aspects, the modifications made and the roof modification. He stated that the Board had received a memo from that committee that states that visually it doesn't impact the Trail. Mr.Wexler said the fact that it is 11 ft.and not 6 ft.is a major improvement. Mr.Gunther asked if all interested parties had a chance to read the letter from the CZMC in regard to their findings,at which time the reply was yes. Mr.Gunther then read the letter into the record. Mr.Fleming said it is pretty clear what they have done since the last meeting. To achieve the room the room the Parkes would like to add onto the house,it was reduced to something that is pretty tight to use, but will greatly benefit the owner to have this space in the house. It is something the applicants are eligible for in terms of a variance,because of the uniqueness of the property,the slope,the original encroachment of the house,the topography and the Trail itself. It is not self-created,because the house was placed with the 25 ft.line running right through it originally,which was due to the topography of the site. Mr.Gunther said a letter was received from Richard Sussman and Deborah Mincer of 3 Briar Close, asking that the applications be denied,which he read into the record. Mr.Gunther provided Mr.Fleming with a copy of the letter. Mr.Gunther asked if there were any other questions from Board members,before proceeding to public comments. Mr. Winick asked what the Board knows about the side addition being legalized; i.e. when was it constructed. Mr.Fleming said it was probably constructed just after the house was built and appears in crayon on the original building plans. Mr.Wexler asked when the house was built. Mr.Fleming said the house was built in'52. Mr.Wexler said it preexisted the zoning regulations,at which time a discussion ensued. Zoning Board April 26,2000 Page 10 r-, Mr.Fleming said he went through the file and quite often the inspector or assessor would mark differences found. Mr.Wexler asked what the zoning inspection was in 1952 and was this in violation then. Mr.Carpaneto said he would have to look in the old zoning book. If it was an actual part of the plan,it would have to be taken as being built. Mr.Wexler said if the plan showed it lower down on the site,the crayon repositioning of it showed it further back on the site,and asked if that was in violation at that time. Mr.Carpaneto said there are no variance papers in the file. Mr.Fleming said from experience certain thoroughness didn't exist then with building plans. Mr.Wexler said it probably was an oversight,it might have needed a variance and it wasn't picked up A discussion ensued. Mr.Winick said the Board does not know when"then"was and does not know when it was constructed. He said Mr.Wexler has pointed out to him that the entire body of the house is nonconforming. A portion of the entire back of the house is nonconforming. If the Board can satisfy themselves that this is not something that requires a variance because it preexists the zoning,he would like to do that. The Board does not rule on an issue that is not the Board's to rule on. He is concerned that the public file does not have the information. Mr.Carpaneto said there are no permits or certificates of occupancy for that part of the house. Mr.Wexler reiterated that he asked if the house itself,when it was built,was it built legally in relationship to the setbacks. • Ms.Gallent said it appears that the house was built in 1952,but the zoning itself was enacted in'59. Mr.Wexler asked what applied to'59. Mr.Carpaneto said there were setbacks,but he did not know what they were. Mr.Wexler said a lot of those plans show inconsistencies to what the Board now knows as setbacks. Mr.Carpaneto said that the Building Department still will have to take it by today's standards,because there is nothing substantial in the file. Mr. Carpaneto said that Mr.Fleming said with regard to the crayon mark,it may be that the assessor went out and marked the plan just to highlight something that was done and probably not reported back to the Building Department at that time. Mr.Winick said that the change that was noted is not dated. He is looking at the line that goes through the addition and through the back of the house. The Board is indulging in the presumption that the house is legal,but the addition is not. The Board does not know. Mr.Carpaneto said that 25 ft.is today's setback. Mr.Winick said it would be his preference to know what the zoning was,assuming a date can be put on it. It is a troubling issue and not one he wants to decide if he doesn't have to. Mr.Carpaneto said he does not have enough adequate information in the file. Zoning Board April 26,2000 Page 11 Mr.Gunther said it is not on the original plan,but it is an addition. Mr.Carpaneto said the only thing known is that it came after the fact. Mr.Fleming said it appears on the assessor's card in 1958. Mr.Gunther asked if there were any question or comments from the public. Richard Sussman,of 3 Briar Close,the individual whose letter was read addressed the Board. He objected to the variance,because they asked for a variance. If it doesn't need a variance,then there is nothing he can object to. He was confused as to where they were because the public statement doesn't make clear that they are in different places. Now that he understands that they are in different places, it doesn't change his objection,but it is clear in his mind. With regard to when it was built,it would seem you would have to assume it was built during a time when a variance was required and the process would have to be gone through. Having gone through that,a 9 ft.encroachment is a rather egregious encroachment. He disagrees that visually an addition further intruding into the Leatherstocking Trail would not be significant. He goes through the Trail all the time. It is a very heavily used part of the Trail,because there is access between Rouken Glen and the area where Mr. Sussman lives that goes through there. People use if very frequently. The house is very visual. Anyone walking by it,particularly if one is coming from down the hill and up,the house is very significantly in one's vision. He also thinks that letting people encroach that close to the Trail does discourage the openness of the Trail and discourages others from utilizing parts of the Trail. The areas close to the property line should be preserved as open as possible. That is clearly in the public interest. It would be wrong for the Board to grant this request. The size of this house is clearly in character with the rest of the neighborhood as it exists. It is essentially the same house as Mr.Sussman has,was built around the same time,and very much the same size. An addition to enlarge should be done absent an adverse impact to the public. There clearly is an adverse impact to the public here. Mr.Gunther asked if there were any other comments. Garrett Thelander,a direct neighbor of the Parkes,addressed the Board. He didn't submit a letter,but handed out a letter to the Board,marked exhibit#2,which he summarized. He said he looked at the Town Law criteria,Section 267,used to make a decision. He said that the family that purchased the house two years ago hasn't changed in size. Having a larger kitchen shouldn't be the basis for granting this kind of a variance and gave alternative examples how this could be accomplished. Because of the unique location of this house,they should have a greater burden of proof because of the character of the Leatheringstocking Trail then perhaps another resident that has a house in the back. It is a 50%variance and is avoidable. The house was purchased by the applicants with full knowledge of the size limitations of the house. If they don't have enough size in the home it can be sold and another house found in the community without setting a dangerous precedent around the Leatherstocking Trail of expanding and encroaching into that open space character. Lastly,under subsection(c), "in granting such area variances,shall grant the minimum variance that shall be deemed necessary",he disagrees a little with Richard. The variance for the setback for the expansion of the kitchen Mr.Thelander strenuously objects to and hopes the Board will deny that portion of the application. It would seem to be a reasonable compromise that satisfies their neMs for the enjoyment of their existing space that doesn't adversely impact the Leatherstocking Trail. Mr.Gunther asked Mr.Thelander a theoretical question. In this particular parcel,as in many parcels that come before the Board,when people come and are seeking a variance it is to encroach upon the area where they can't legally do so and are seeking relief through the Zoning Board. In some cases on the property there is another area of the property where an applicant can build,but the impact by building someplace else other than in an encroachment area may have a greater visual impact than extending into an area requiring a variance. Mr. Gunther said that he understands Mr. Thelander's objection to building an extension closer to the rear of the property. If they were to build on another part of the property within the building envelope where they would be permitted to do without a variance and would be seen more from the Leatherstocking Trail than encroaching closer,what would his opinion be of that. Zoning Board April 26,2000 Page 12 Mr.Thelander said in a hypothetical situation if there was another place for it the question is where would the other location be and would it be more visible. Mr.Gunther said that if the option that is available to applicant,a right to do,is to extend the building within the building envelope legally to the point where it is more intrusive to the Leatherstocking Trail rather than seeking a variance. Mr.Thelander said he understands the concept of zoning,even at the risk of impinging,the bigger issue is maintaining the integrity of the zoning code. The zoning code prescribes the building envelope through the setback requirements and if those setback requirements adversely affect the Leatherstocking Trail the only way to correct that is to change the zoning. If that is in conformity,that is the better thing. The short term impact will be outweighed by the long term precedent setting by giving them a variance for the reasons that were talked'about by Richard or the CZMC. Mr.Wexler said the Board looks at these cases individually. It is the uniqueness of the cases that derive the solution to the problem. Mr.Wexler sees this specific topography on this land as being very unique to the Leatherstocking Trail. They have a high back,the back from their property goes up higher on a good portion of the property and then falls off dramatically on the side of their property. The area where they are allowed to build within the envelope of this property,is probably the most visible portion of their property to the Leatherstocking Trail. They are proposing to put an addition on the rear of the house that has no access from the outside. The site lines as presented and seen from the photographs,show an extension of a roof line. You do not see the window line. Those pictures would show that an addition where they are allowed to build it would be completely visible and the use of that space would have much more of an impact on the thing the Board is trying to protect. While Mr. Wexler understands Mr. Thelander's concept of zoning,there are individual cases that have unique conditions set upon them. Mr. Thelander asked what is the need and the justification for the expansion itself. The Board is presupposing that they are entitled to the expansion. There may be alternatives within the house,or they can sell the house if they need more space. That is the option,as opposed to violating the setback requirements. Mr. Sussman said that the Leatherstocking Trail is basically a thin,narrow strip. Side impact is more important on the Leatherstocking Trail than length impact. He doesn't know whether or not it would be true or not true visually,until he could see what it would be. Mr.Wexler said that as-of-right the area the applicant can build on and the use they are proposing that they feel they need to enjoy the house further,is really related to the principal parts of the house. It is not a second story use,but a very primary use to the house to achieve that and maintain the uses that are within the house. The only place they can build on this house is either in the rear to achieve this goal,or looking at the house from the Leatherstocking Trail,to the left of the house. From the applicant's point of view, it is obviously more economical for them to build it at the rear. From Mr.Wexler's point of view as a zoning board member,to see them put this addition in the rear is less of an impact on what the Board is trying to protect from where they can legally build,keeping the use of those spaces within the house. That is an approach that can be taken to evaluate it. At 6 ft.if you see it you are on the Leatherstocking Trail. You couldn't even walk past the house. Mr.Wexler said the Board grants variances in many instances where it is 11 ft.away from someone elses back yard,which has an enormous impact on the house on the rear. Those conditions are weighed and sometimes they are granted,because there is no other place they can build. Mr.Wexler feels,in this case,it is beneficial to seek a variance than not. Mr.Gunther asked if there were any other comments from the public Judy Dichter,of 32 Bonnie Way,addressed the Board. She is representing herself and her husband,Barry, who could not be present this evening. She read a prepared statement,marked exhibit#3,in opposition of the application. Zoning Board April 26,2000 Page 13 May Aisen,of 25 Bonnie Way,addressed the Board. She said she uses that part of the Leatherstocking Trail quite frequently. The Leatherstocking Trail is very narrow at that point and you can very clearly see a large house when you walk by and can see the houses on the other side of the Trail at that point. The visual impact is there and will be greater if they build that addition. Ms.Aisen thinks great force should be put on the recommendation and the comments of the CZMC,which says that the construction/variance would impose an inconsistent condition,a condition inconsistent with the guidelines of the CZMC. She also voiced concern about precedent setting. Ms.Aisen is seriously concerned about the precedent that will be set by granting a variance,simply because people want something. It is not a question of needing something,but a question of wanting something. Ms.Aisen considers it quite ironic that Mr.Fleming used as part of his argument the fact that they have a unique property and they bought it because it was unique. Ms.Aisen said what was unique about it is the fact that it abuts the Leatherstocking Trail,and that is true for all the people around the Leatherstocking Trail. It would be taking away some of their uniqueness,in order to enhance the Parke's uniqueness and that does not seem to be a good reason for a variance. As far as the other requests the Parkes have made, it is very difficult to address because it is not clear apparently whether this currently illegal addition was put up in deliberate violation or it was done unknowingly. If it was done unknowingly,one can't ask that they tear it down. If it was done with deliberate malice, which sometimes happens, the Board has to consider whether it should request its removal or not be of its legal status and because it is up already. Mr.Gunther stated he doesn't think the Board will ever know. It has been up approximately 40/50 years. Mr.Winick said Ms.Aisen said she walks the Trail in that area and asked if she ever walked up on the rock ledge that is immediately adjacent to the back of the Parke's house. Ms.Aisen said that she has walked along the rock on the Trail. Madeline Berg,15 Mardon Road,appeared,speaking as chair of the CZMC. She said that she sent a letter to the Board and there were a few other points she wanted to make. The CZMC is very concerned about the Leatherstocking Trail. Generally,they are finding that people are putting BBQ's and swing sets within the Leatherstocking Trail. They are hoping to be able to monitor that more closely in the near future. They did note that there were some mitigating factors in this particular application,specifically the fact that the adjacent abutting portion of the Leatherstocking Trail is elevated from the remainder of the Trail with a very narrow strip. To that extent,if the application is granted and constructed is permitted or even if the application isn't granted in construction,they are concerned and want to remind the applicant to be careful with construction debris,drainage,etc. This is an area where the traditional hay bales may not do the trick in order to protect the Leatherstocking Trail that abuts the construction area. Mr.Wexler said given the configuration of the rear of the property,he asked what Ms.Berg means by protection and what, at that point, is she protecting. The configuration of where the construction is happening it's going to happen at the rear of the property. The rear of that property is at the base of that rock outcropping. If anything,the runoff is going to run to the house. Ms.Berg said she is more concerned during the construction phase. Their recommendations to the ZBA would have been even stronger, but for the mitigating factors, they probably would have had a more unequivocal,more negative statement for the ZBA. Mr.Gunther asked if there were any other comments from the public on this application. Mr.Sussman asked if he could get a copy of the survey,which Mr.Gunther supplied. Mr.Sussman asked Mr.Winick why he questioned whether Ms.Aisen had climbed up the rock,because he has done so and wondered why he asked that question. If there is some further purpose to the question, he thought perhaps he could answer it. Mr.Winick said he was going to ask Mr.Sussman the same question,because he was using the Trail. • Zoning Board April 26,2000 Page 14 Mr.Fleming said he would like to respond to some of the letters. There is absolutely no precedent made by any Board actions in any town at any time. It is not referred back to other cases,as every case is new. They really do offer that this is the most mitigated architectural feat they can offer back for this variance after the first meeting. To achieve his client's goals of locating this room,it is not a question of whether they need or want it. They are trying to improve their property. This case has an earmark for eligibility for a zoning variance under state law. Some of the other arguments made;they can't raise the roof,as it would be more of a visual impact. As a matter of fact,he has held discussions with his client. Mr. Fleming knows a lot of illegal additions and things happen for the most part. He has never seen anything deliberately or intentionally built with disregard of the law. He doesn't know about the existing part,and tried to find out when that was built. There was no intention to violate anything with his client. As Ms. Berg stated, the word encroachment is used a lot. He would like to remove that from the argument, because this is not encroaching on the Trail. This is still on the Parke's property. Mr.Fleming is aware, also as a the citizen in the Town of Mamaroneck, that several years ago there was a program for Trail walkers marking anything they saw coming in impacting the Trail. This is not the case. It is a request for a variance under extreme topographic conditions. This is the best result they can offer,with an intention to go forward. Judy Dichter said the best result for the community is not to go forward with this project. Mr. Gunther said that the Board is very attentive in listening to everyone's comments and all Board members have had an opportunity to visit the site. If anyone has something new to add,the Board will be happy,willing and most anxious to hear what it is. If there is nothing new to say,Mr.Gunther would rather move on,because there are many other cases after this case. Mr. Thelander said he disagrees again. The fact that Mr. Fleming characterizes this as merely an improvement,all individuals would like to improve their properties,but that is clearly.no grounds for controvining or violating the zoning code. It doesn't seem to be the appropriate reasoning or rationale for that. Richard Sussman said he has a question. He doesn't understand where the existing encroachment is for which they are asking for a variance. Mr.Gunther said Mr.Sussman is looking at the site survey. A certain number of feet is required,because it is the back of the house and the rear property line is 25 ft. What they are asking to build is within. Mr.Sussman said he understands that,but is questioning the existing encroachment. Mr.Sussman looked at the sketching made by Mr.Wexler. Mr.Wexler earlier had talked about the encroachment on the existing den. The original house that was built has a Certificate of Occupancy(CO)on it,which was verified. Somewhere in its history from the date that CO was granted,an addition was put on the side of the house. Part of that addition encroaches on the 25 ft.setback from the rear property line. Mr.Sussman asked if the patio was in the original house,which is the major area of encroachment. Mr.Gunther said the only item before the Board this evening is the requested new addition and the existing deck. Mr.Wexler asked if it would be possible to stake out the addition from the back of the house. Mr.Fleming said it can be done,but they would hate to lose another two months. After further discussion,Mr.Wexler said it is the benefit the immediate community gets when this house is pushed further back from the curb line. It is more open space to the street. The back face to the house is an impact on the Leatherstocking Trail. If the house was put where it was probably originally planned Zoning Board April 26,2000 Page 15 to be put or where it would have been put today,the closest to the curb cut as possible,there would not be an issue about a variance in the back. The house was placed forty something years ago much further back from the curb than it can normally be. Mr.Wexler doesn't know why that was done,since the back of the house is rock. That is the reason they are before the Board this date,because of the position of the existing house. Mr.Wexler would like to see what it would look like elsewhere. Mr.Gunther asked if Mr.Wexler wants to ask for an adjournment,with which Mr.Wexler agreed. Mr.Wexler said that is up to the applicant. After further discussion,Mr.Simon said he agrees. He thinks the Board should receive a survey with all the details,as a regular survey should be with the dimensions staked out. Mr.Gunther said his only concern with putting stakes in the ground,is that the only place to see that is from the property not from the Trail to get a sense of what it means. Mr.Wexler asked if there is patio furniture out there. Mr.Fleming said there is nothing out there. Mr.Winick asked counsel if the Board can condition the grant, if so granted,on this variance on an agreement by the property owner that would bind all future property owners not to build within the existing building envelope as-of-right. The Board has the right within limits to condition variances. He is looking for legal guidance and asked if this is granted,conditioning it on limiting something else which the Board thinks would have a great impact on the Leatherstocking Trail. Ms.Gallent said they would have to relinquish their right. After further discussion,Ms.Gallent said if they enter into a restrictive declaration that would be recorded against the property. Mr.Wexler said they can put a restriction on their own drawing. If the Board were to approve the drawing presented, there is a note that states one-story to be maintained to the area that it's attached. Future construction cannot be put upon the top of it,even in the as-of-right area. Mr.Winick wants to know what the Board's legal right is. Ms.Gallent said in order for it to be effective, the Board would have to require it be entered into a restrictive declaration. On a motion made by Mr.Gunther,and seconded,it was unanimously RESOLVED,that this is a Type II Action having no significant impact on the environment as determined by New York State or corresponding local law,therefore requiring no further action under SEQRA. Mr.Gunther asked that the applications be separated that were presented to the Board and deal with them as presented. Ms.Gallent said this case is somewhat unique in that there was a discretionary referral to the CZMC. It wasn't required. In a case in which there is a required referral to the CZMC,there are requirements in the consistency law that would bind the Board if there was an inconsistency determination if the Board wanted to grant the request. She does not know what the Board wants to do. If the Board wanted to grant the request in light of an inconsistency determination,the Board can either set aside the determination of inconsistency and state why it is setting it aside and then vote to grant or it can accept the inconsistency Zoning Board April 26,2000 / Page 16 and deny the application or it can accept the inconsistency determination and still grant the application if it makes certain findings. Ms.Gallent does not believe that these procedural requirements are binding, because this is not a referral that is required by law. But she does believe that since the Board did ask for an advisory opinion from the CZMC that any resolution made,whether it is voting it up or down,should note that there was an inconsistency determination from CZMC and factor that in. Before making a motion,include within the resolution something that deals with the inconsistency determination. Mr.Winick asked Ms.Gallent if he can suggest to the chair to get a sense of the Board before voting. Mr.Gunther said his inclination is that application#2 be approved,and application#3 be declined on the basis that it is inconsistent with the Local Waterfront Revitalization Program(LWRP)and that the applicant has other options available. Mr.Winick said he would vote the same way,but for different reasons. Mr.Wexler said given the configuration and,topography of this property,he would be inclined to vote in the positive for#3,if the applicant will go forward and solve their needs somewhere else on the property. It would be a greater impact,not on the Leatherstocking Trail,but on the immediate community when this addition is built. He would also be in favor of#2,to maintain what is there now. • Mr.Simon said he is agrees with#2 and declines#3. After some discussion,Mr.Gunther asked what Mr.Simon needs to have or to see before he can vote on #3. Mr.Simon said he is against#3,as it will make a very small rear yard. Mr.Gunther asked counsel for any suggestions in terms of moving forward. Ms.Gallent said in light of the fact that it looks like the variance will be denied,the Board does not have to worry about what she said. Mr.Gunther asked that the Board start with application#2,and asked counsel if the Board needs to deal with the CZMC referral or was that only in reference to the addition. Ms.Berg said that was only for the addition. On motion of Mr. Gunther, seconded by Mr. Simon, the following resolution was proposed and ADOPTED unanimously,4-0. RESOLVED, that this is a Type II action having no significant impact on the environment pursuant to 6 NYCRR§617 et seq. Accordingly,no further action under SEQRA is required. On motion of Mr.Winick,seconded by Mr.Gunther,the following resolution was ADOPTED: WHEREAS, Veronique and Marshall Parke have submitted an application,to the Building Inspector,together with plans to legalize an existing one-story addition. The addition as built has a rear yard of 16 ft.where 25 ft.is required pursuant to Section 240-36B(3);and further,the addition would increase the extent by which the building is nonconforming pursuant to Section 240-69 for a residence in an R-15 Zone District on the premises located at 11 Briar Close and known on the Tax Assessment Map of the Town of Mamaroneck as Block 105,Lot 421;and Zoning Board April 26,2000 Page 17 WHEREAS,the Building Inspector has declined to issue such permit on the grounds that the plans submitted failed to comply with the Town of Mamaroneck Zoning Ordinance with particular reference to Section 240-36B(3),Section 240-69;and WHEREAS,Veronique and Marshall Parke submitted an application for a variance to this Board for the reasons set forth in such application;and WHEREAS,this Board has examined the plans,inspected the site,reviewed the application and has heard all persons interested in this application after publication of a notice thereof and a hearing thereon;and WHEREAS, the Zoning Board of the Town of Mamaroneck makes the following findings as required by New York State Town Law§267-b: 1. The Board finds that the benefit to the applicant from the granting of the variance outweighs any detriment to the health, safety and welfare of the neighborhood or community. In reaching this conclusion,the Board considered the following factors: A. This is an existing structure that was built at some indeterminate time after the . original house was built in 1952. The Board does not know anything of the history of the construction of this addition beyond that, and believed that supposition on that issue would not be useful. An undesirable change will not be produced in the character of the neighborhood,or a detriment to nearby properties created if the addition is legalized. After looking at the site plan and having inspected the property several times,it is apparent that only a very small portion of this addition is nonconforming. Based on observation of the property, both from the Leatherstocking Trail and from various points around the property, the Board is of the view that there is no perceptible difference between this addition as it currently exists and what would be permitted as-of- right. If forced to become conforming,it would essentially shave off about 2 ft.or 3 ft.off the room. Effectively,the same mass would be there,the leading edge of that mass toward the Leatherstocking Trail would be pushed back a couple of feet,and that is the only change. B. The applicants cannot achieve their goal,which is saving that room,by any reasonable alternative which doesn't involve the necessity of the area variance. Taking 2-3 feet off would essentially make it,by today's standards,not a useful room at all. C. Given that it is only a portion of that fairly standard size room,the variance is not substantial, and it will have an adverse effect on the physical or environmental conditions of the neighborhood. • D. The difficulty is not self-created as to this owner. There is no indication that • the owner had any knowledge of this condition. Nor was it terribly obvious from the curved property line that a small portion of this room is nonconforming. E. The granting of this variance is in harmony with the general purposes and intent of this Ordinance and will not be injurious to the neighborhood or otherwise detrimental to the public welfare. Zoning Board April 26,2000 Page 18 F. The variance is the minimum necessary to alleviate the difficulty detailed in the application yet also preserves and protects the character of the neighborhood and the health,safety and welfare of the community. G. The strict application of the Zoning Ordinance and the Town Code would deprive the applicants of the reasonable use of the land/or building,and the variance granted by this Board will enable such reasonable use. NOW,THEREFORE,BE IT RESOLVED,that the subject application be and the same is GRANTED,subject to the following conditions: 1. This variance authorizes the construction as detailed on the plans presented and no other. 2. The applicant shall obtain a building permit within six(6)months of the filing of this Resolution. This decision shall be filed with the Town Clerk as provided in Section 267-a(2)of the Town Law. Mr.Gunther said: APPLICATION NO.3-CASE 2387(adjourned 2/29/00;3/22/00) Application of Veronique and Marshall Parke requesting a variance to construct a one-story rear addition. The addition as proposed has a rear yard of 6 ft.where 25 ft.is required pursuant to Section 240-36B(3); and further,the addition would increase the extent by which the building is nonconforming pursuant to Section 240-69 for a residence in an R-15 Zone District on the premises located at 11 Briar Close and known on the Tax Assessment Map of the Town of Mamaroneck as Block 105,Lot 421: is a Type II action. Mr.Gunther asked counsel for guidance. After some discussion,Mr.Fleming said that Board members had asked to see it roped out and shown where it goes. He asked if he could arrange a meeting,as he stands firmly that it is not an impacting application. It is the best thing they can do,and they do have a right to use their property. He would like to adjourn it until that time. Ms.Gallent said that the Board cannot meet on the site. It would be in violation,but it can be staked out and he can let people come and see it. Mr.Winick said he doesn't need to see it staked out for reasons as stated in the law that applies to this application,and based on some of the testimony this evening. It is not something that he needs to see in order to vote on this application. Mr.Winick said he observed the following: (I)the Leatherstocking Trail property is not at the bottom of that ravine. The Leatherstocking Trail property runs from edge to edge of the County property. One person has told the Board that they use that portion of the property, which is close to the Parke's house,and certainly it is part of the public property and people can go across those rocks as much as they want to. The Parkes would not have the ability to restrict that. Consequently, Mr.Winick does not think the Board can view the impact of this addition as though it only needed to be considered from down on the Trail proper which is essentially the way that Mr.Fleming has presented it. Mr.Winick agrees with what Mr. Fleming presented,but just doesn't think that is the way the Board should look at it. Mr.Winick is also strongly influenced by his view that the applicants can achieve their goals by a reasonable alternative which does not involve the necessity of an area variance. This is the point Zoning Board April 26,2000 Page 19 Mr.Thelander made earlier to which Mr.Winick believes is a matter of law that is true. Mr.Winick doesn't think the variance should be granted,which is going to have an impact on that Trail if they can get a more useable space without a variance. He does not agree with Mr.Fleming that as a matter of law the Board is there to grant variances. The Board is here to consider applications. In this case,on imbalance, this is not one Mr.Winick would vote for to grant. The Board can't consider this by looking at it from down on the Trail proper,but can consider it from the edge of the property where people are allowed to go and where some people do go. Mr.Winick said he doesn't really need to see it staked out. He has already been on that portion of the property and he understands how the addition will impact from there. That is part of the public property that the Board is supposed to protect. Ms.Gallent said that to clarify the law on something that Mr.Winick said,one of the factors in the law is,can the applicant achieve the benefit sought through some means that doesn't require a variance. In this case,it appears there is an as-of-right solution. However,if there is an as-of-right solution,but in the Board's view and in your view,it is worse,that is not an alternative that the Board is bound to require. Just because there is an alternative,doesn't mean that is what the Board has to go for if the impact is worse. Mr.Winick said that is why he asked counsel if the Board can restrict the as-of-right construction,because unless the Board can do that then they are not accomplishing anything in terms of minimizing impact by granting the variance. Ms.Gallent said if the applicant is willing to enter into such a restrictive declaration,the Board could do it. Mr.Gunther asked the life of that. Ms.Gallent said that it will run with the land,and it would be recorded. Mr.Gunther said he does not need to see the property again. Mr.Simon said he doesn't have to see it either. Mr.Gunther informed Mr.Fleming the Board can proceed with the application or adjourn it to next month. After some discussion,on a motion made by Mr.Gunther,seconded by Mr.Simon,it was unanimously RESOLVED,that the Public Hearing of case#2387 be,and hereby is,adjourned to the May 24, 2000 Zoning Board meeting. Mr.Sussman asked if the Board can rule or decide that if it is staked out and is an area that the Board members are allowed to see,that the public be allowed to see it as well. Mr.Gunther said the Board cannot speak for the property owner. If Mr.Sussman wants to go to the property,he can ask the property owner if they will allow that. That is not in the Board's purview. Mr.Carpaneto said it can be seen from the Trail,or the Parke property. Ms.Gallent said Mr.Winick is saying that the rock is part of the Trail and it can been seen from public property. Mr.Wexler said there is no indication of where the property line is. Ms. Aisen said that the neighbors of the Parke property wanted to know what the purpose of the adjournment is. Zoning Board April 26,2000 Page 20 • Mr.Gunther said the applicant requested it be adjourned. Ms.Aisen asked if that is all that is needed,without knowing why. Ms. Gallent said one of the zoning board members is not present this evening, as announced at the beginning of the meeting,and that is a valid reason for an adjournment to permit a vote with all members present. The Secretary read the next application as follows: APPLICATION NO.4-CASE 2394 Application of Mr.&Mrs.Paul McNulty requesting a variance to enlarge an existing second floor and first floor wood deck. The second floor alteration and addition as proposed has a side yard of 7.0 ft.where 8.0 feet is required pursuant to Section 240-39B(2)(a);a total side yard of 14.35 ft.where 18 ft.is required pursuant to Section 240-39B(2)(b);a front yard of 29.75 ft.where 30.0 ft.is required pursuant to Section 240-39B(1). The deck extension as proposed has a rear yard of 18.9 ft.where 25.0 ft.is required pursuant to Section 240-39B(3);and further,the alterations and additions would increase the extent by which the building is nonconforming pursuant to Section 240-69 for a residence in an R-6 Zone District on the premises located at 49 Myrtle Boulevard and known on the Tax Assessment Map of the Town of Mamaroneck as Block 124,Lot 553. The secretary said that Mr.McNulty informed her that his name is Patrick McNulty,not Paul McNulty. Mark Mustacato,the architect for the project,addressed the Board. He informed the Board that this is a nonconforming property with regard to its width and setbacks. The house as it exists now has two bedrooms on the second floor,which are very,very small and very low. At the tallest point,they are 7 ft. They are proposing to raise the roof and build adjoining rooms to accommodate three bedrooms and two bathrooms on the second floor. It will all be contained within the footprint of the house. The dormers are set back from the two sides to give a little more of a setback from the existing side yard. They are also planning to enlarge the deck at the rear of the property. The deck wouldn't encroach into the rear yard any more than it already does. They are just planning to make the deck a little wider. The reason for that is the property at the rear is lower than the first floor by approximately 5 ft.or so,it is not a very friendly yard,the grass doesn't grow that well and the deck would be more useable than the yard area. They are removing some existing areas on two sides of the house that are paved in concrete and are ending up in a reduction of the overall coverage of the property by impervious surface. Mr.Wexler asked if he was staying within the 35%. Mr.Mustacato said they now have a coverage of 47%,and are reducing that to 42%. A large part of the overage is driveways and walks. Mr.Wexler asked what the houses are like on that street. Mr.Mustacato said there is a mixture of two-story and one-story homes. Mr.Gunther asked if it will be the same footprint,with which Mr.Mustacato verified. Mr.Mustacato said that the designer has tried to minimize any height impact so it doesn't have the feel of a two-story house,by building it as a dormer. • Mr.Wexler asked the square footage of the house. Mr.Mustacato said currently it is approximately 1600 sq.ft.and it will be about 2400 sq.ft.when done. Zoning Board April 26,2000 Page 21 A discussion ensued regarding the square footage of the project. Mr.Gunther asked if there were any questions from Board members. There being none,he asked if there were any questions or comments from the public. There being none,on motion of Mr.Gunther,seconded by Mr.Winick,the following resolution was proposed and ADOPTED unanimously,4-0. RESOLVED, that this is a Type II action having no significant impact on the environment pursuant to 6 NYCRR§617 et seq. Accordingly,no further action under SEQRA is required. On motion of Mr.Wexler,seconded by Mr.Simon,the following resolution was ADOPTED: WHEREAS, Mr. & Mrs. Patrick McNulty have submitted an application to the Building Inspector,together with plans to remove,rebuild and enlarge an existing second floor;enlarge first floor wood deck. The second floor alteration and addition as proposed has a side yard of 7.0 ft.where 8.0 feet is required pursuant to Section 240-39B(2)(a);a total side yard of 14.35 ft. where 18 ft. is required pursuant to Section 240-39B(2)(b);a front yard of 29.75 ft.where 30.0 ft.is required pursuant to Section 240-39B(1). The deck extension as proposed has a rear yard of 18.9 ft.where 25.0 ft.is required pursuant to Section 240-39B(3);and further,the alterations and additions would increase the extent by which the building is nonconforming pursuant to Section 240-69 for a residence in an R-6 Zone District on the premises located at 49 Myrtle Boulevard and known on the Tax Assessment Map of the Town of Mamaroneck as Block 124,Lot 553;and WHEREAS,the Building Inspector has declined to issue such permit on the grounds that the plans submitted failed to comply with the Town of Mamaroneck Zoning Ordinance with particular reference to Section 240-39B(2)(a);Section 240-39B(2)(b);Section 240-39B(1);Section 240-39B(3);Section 240-69; and WHEREAS,Mr.&Mrs.Patrick McNulty submitted an application for a variance to this Board for the reasons set forth in such application;and WHEREAS,this Board has examined the plans,inspected the site,reviewed the application and has heard all persons interested in this application after publication of a notice thereof and a hearing thereon;and WHEREAS, the Zoning Board of the Town of Mamaroneck makes the following findings as required by New York State Town Law§267-b: 1. The Board finds that the benefit to the applicant from the granting of the variance outweighs any detriment to the health, safety and welfare of the neighborhood or community. In reaching this conclusion,the Board considered the following factors: A. After visiting the site,the Board finds that there will be no undesirable change produced in the character of the neighborhood, or a detriment to nearby properties created by the issuance of the variances. The footprint stays as it is presently to the actual face of the house. The shape of the house, the configuration of the windows,etc.,are all in total continuity with what is on this street now in the community. B. The applicants cannot achieve their goals by any way that does not require an area variance. The house as presently exists violates all of the setbacks except for the rear setback. This addition as proposed is the most practical solution to the applicant's needs. Zoning Board April 26,2000 Page 22 C. The front yard encroachment of 3 in.,4 in.is minimal. The reduction of the side yard setback from the existing 8 ft.to 7 ft.is also minimal and the total side yard of 14.35 ft.where 18 ft.is required is not a substantial request. The deck has a setback of 18.9 ft. where 25 ft. is required. The deck is approximately 4 ft.off the grade--a low structure that has an open railing that has a minimal impact on the environment given the fact that the setback is approximately 8 ft./7 ft. D. The variances requested will not have an adverse impact on the physical or environmental conditions in the neighborhood or district,basically for the same reasons stated in A and C. E. This house is a small house. The house as sited on the property with the setbacks as indicated on the site plan are all in violation other than the rear yard. That was not a self-created positioning of the house. The addition of the deck in the rear yard,while it is self-created in that the applicant is constructing the deck in that area,it is not inconsistent with other decks on houses on this side • of the property. F. The granting of this variance is in harmony with the general purposes and intent of this Ordinance and will not be injurious to the neighborhood or otherwise detrimental to the public welfare. G. The variance is the minimum necessary to alleviate the difficulty detailed in the application yet also preserves and protects the character of the neighborhood and the health,safety and welfare of the community. H. The strict application of the Zoning Ordinance and the Town Code would deprive the applicants of the reasonable use of the land/or building,and the variance granted by this Board will enable such reasonable use. NOW,THEREFORE,BE IT RESOLVED,that the subject application be and the same is GRANTED,subject to the following conditions: 1. This variance authorizes the construction as shown on the plans presented and no other. 2. The applicant shall obtain a building permit within six(6)months of the filing of this Resolution. 3. The building permit shall be void if construction is not started within six(6)months and completed within two(2)years of the date of said permit. 4. Construction shall be in substantial compliance with the plans submitted in connection with this application. This decision shall be filed with the Town Clerk as provided in Section 267-a(2)of the Town Law. Mr.Gunther informed the applicant to see the Building Department during regular business hours for a building permit. The Secretary read the next application as follows: Zoning Board April 26,2000 Page 23 APPLICATION NO.6-CASE 2396 Application of William Powell/Gail Shargel requesting a variance to construct two 2-story rear additions. The additions as proposed have a rear yard of 13.66 ft.where 25.0 ft.is required pursuant to Section 240- 38B(3);and further,the additions increase the extent by which the building is nonconforming pursuant to Section 240-69 for a residence in an R-7.5 Zone District on the premises located at 63 Valley Road and known on the Tax Assessment Map of the Town of Mamaroneck as Block 114,Lot 61. Robert Keller,of 72 Wendt Avenue,Larchmont,New York 10538,the architect for the project,addressed the Board. The applicant Bill Powell was also present. His clients would like to stay in their pristine residence. They have a large piece of property,the largest piece of property in the neighborhood. They spoke with the Director of Building because of the odd-shaped nature of the property. They discussed coming to the Zoning Board for an interpretation of the side/rear yard in this property,because it's not exactly a rectangle and it's hard to determine what is the side and what is the rear. Mr.Keller explained and demonstrated his interpretation of the property. He explained the Building Inspector's comment about the potential for the area to be considered rear yard of the property,hence their presence in front of the Board this date. He asks that the Board look at the proposal and determine which is the side yard and which is the rear yard. He explained if the determination was that this was considered the rear yard,grant a variance for construction in the order requested. Mr.Gunther said,as a procedural question,it seems Mr.Keller is seeking an interpretation. A discussion ensued,with Mr.Carpaneto stating his determination is that it is a rear yard. Mr. Gunther just wanted to clarify the matter,because this Board hears applications for variances and applications for interpretations and makes a determination with regard to matters presented. While Mr. Keller is saying he is looking for a determination,he is asking for a variance based upon a set of facts. Mr.Gunther asked that that be clarified. Mr.Keller said he discussed what that process was going to be with Mr.Carpaneto. Mr. Gunther just wants to be sure that the Board follows the path that Mr. Keller presented in the paperwork. Mr.Keller said that is the principle of their conversation,a determination made by Mr.Carpaneto of what the rear yard is. Ms.Gallent said if Mr.Keller wants to appeal that,he can. It's just that he hasn't. The question of appeal is prior to the question of a variance. If Mr.Keller has a question,the matter would have to be renoticed. There is no clear answer to that question. Mr.Gunther said that sometimes applicants may come to the Board with two applications at the same time, one for an interpretation,at which point if the interpretation goes in their favor,you don't need a variance. The second application would be the variance. Mr.Carpaneto asked counsel's advice. Ms.Gallent said there is no easy answer to the procedural question as to whether this notice was for an interpretation. In some sense it is inherent in the variance request whether one is needed. The Board looks at it and says,no variance is needed. Mr.Wexler asked if they can have a discussion on that issue,with which Ms.Gallent agreed. Zoning Board April 26,2000 Page 24 �_ After some discussion,Mr.Wexler said that Ms.Gallent gave the Board the opportunity to discuss whether this is a rear yard or side yard. Mr.Wexler asked if the Board can do that,and she said yes. Mr.Wexler thinks this is a unique piece of property and the Board should clarify the front. Mr.Gunther asked Mr. Carpaneto if there is an impact in terms of the variance needed or not needed, depending upon where the rear yard is established. Mr.Carpaneto said the side yard would be compliant in that zone. Mr.Keller explained that the dotted line sets the 30 ft.front yard setback,what would be considered the fall within thea l rear yard setback of 25 ft.,and the 10 ft.side yard setback. The entire property would building envelope. Mr.Wexler said that is Mr.Keller's interpretation,and Mr. Carpaneto is saying that is not true,with which Mr.Keller agreed. Mr.Gunther asked Mr.Carpaneto. Mr.Carpaneto said looking at where the garage would be,the garage would have to be in the rear third of the property. The property is so unusual,because the front comes on Valley and a front comes on Glen. If the line is taken and brought back,it seems it is a rear yard the whole way. Mr.Wexler agrees with Mr. Carpaneto,but for different reasons. If it is taken as a typical corner lot, which has a right angle where the curb is,and a line is taken perpendicular to that line and the rear yard, generally on a regular lot which is an internal lot,the rear yard is opposite the front yard. When one has a corner yard,you can have it two ways and explained how that is done. After further discussion,Mr.Gunther asked that the Board move forward with this application. Mr.Wexler said that the Board has made a determination that the applicant needs a variance. Mr.Keller said that being the case,they are asking for a rear yard variance. He reiterated the proposed request. Those structures would be set back,but the roof line will start at the first floor. As an aside,the neighbors to Mr.Powell came in and are concerned about the second story part of the building,as it comes close to their house. He said that the Powell's do not want to have any kind of adverse conditions with their neighbors,so they want the neighbors to know they will not build the second story onto that part of the building,but will keep it as a one-story unit. Mr.Gunther asked Mr.Keller to verify the requested one-story addition on each side,which Mr.Keller did. Mr.Keller then demonstrated and explained where the requested additions would be. Mr.Simon asked Mr.Carpaneto if the line in the back is considered the rear yard,is it legitimate,with which Mr.Carpaneto agreed. Mr.Carpaneto said it is the rear one-third of the lot,and is 5 ft.from the property line. Mr.Carpaneto asked Mr.Keller if the left side will only be a total of one-story,with which Mr.Keller agreed. Mr.Wexler asked if Mr. Keller was confident in the dimensions on the plans submitted other than the second story,as they are not completed plans but what he is entitled to,with which Mr.Keller agreed. Zoning Board April 26,2000 Page 25 Mr.Gunther asked if Board members have any other questions of the applicant. There being none,he read a letter from the neighbors,Richard and Phyllis McCauley,of 21 Glen Road,voicing their concerns. Mr.Gunther asked if there were any comments or statements from the public on this application. Richard McCauley addressed the Board. He said when he stated that most homes are a significant variance,he said most of the homes in his area are in one way or another nonconforming because they are all old homes which date back in the most part to the'20's and'30's. He said they fmd themselves in a position where they are already pinched on the north side of their house by a 3-story building which is virtually on their property line. There is virtually no separation. They find themselves in a position,and what troubles them a great deal,is that they are already being pinched on one side. He knows that he can't change what is nonconforming as it happened 27 years ago,but he is going to try to not allow himself to lose all sense of privacy,particularly his back yard area,the other side of which faces out to Glen Road where he has no privacy either. They both feel very strongly that this is a serious intrusion on their privacy. Ms.Gallent said even though he agrees to drop the second story. Mr.McCauley said this came in a conversation this afternoon with Bill Black(?),and it seemed reasonable to him. Ms.Gallent asked if he was objecting to the current plan. Mr.McCauley said yes,he is objecting to the current plan as stated tonight. Mr.Winick asked if he objected to the current plans with the restrictions as stated this evening. Mr.McCauley said he objects to the plan which was submitted to the Board. On advice of counsel,Mr. McCauley he has indicated to Joe or to his wife that that would be a more satisfactory solution. He would rather not see any infringement on any variance,but being a reasonable person that would be a solution he can live with. He believes the solution they have proposed would be liveable,because there is a certain sense of privacy that sits between them. He agrees to a proposed plan. Mr.Wexler said if the Board proceeds with this,and based on what the applicant and the architect says, the Board will stipulate in their motion that it will be one-story,never to be built on top of again. Mr.McCauley said that as stated he could live with. Mr.Gunther asked if there were any other comments on this application. Phyllis McCauley said the only question she has is once there is a one-story structure isn't it always a possible request to go up. Mr.Gunther said in this particular case the only way that could occur,is if the applicant were to come back to the Board and make another application for a variance. Mr.Winick said that the fact that there is a first story addition,legally it doesn't increase the likelihood that the second story will be granted or not. Mr.Wexler said it does not give them the as-of-right flex. Mr.McCauley said the Board,in essence,would be granting his variance. Ms.Gallent said the one-story. Zoning Board April 26,2000 Page 26 Mr.Simon said there would be no hope for the second story. Mr.McCauley said at no time in the future. Ms.Gallent said the applicant would have to come back to the Board. Mr.McCauley said his concern is with the precedent already established of that one-story variance being accepted and would it be easier then to get the second variance. Mr.Winick said it doesn't establish a precedent that makes the second story more appropriate or less appropriate,or moree or less likely to be granted. Ms.Gallent said it is the impact of the original construction that the Board would be concerned with. Mr.McCauley asked if they would see that in some form. Ms.Gallent said they will be noticed. Mr.Gunther said just as Mr.McCauley received notice for this application,if the neighbor wanted to make a change with anything significantly different than what the Board approves,he would have to make a new application for a variance. Everyone who lives within 400 ft.of the property gets noticed and the process starts all over again and there is a public hearing. Mr.Wexler asked the applicant when he will be finished with working drawings to submit to the Building Department. Mr.Keller said probably in two or three months from now. Mr.Wexler said the drawings presented have inconsistencies from what the applicant is presenting. Mr. Wexler would like to see a corrected set of drawings before the Board actually votes,so he could see what the applicant will actually be doing and there won't be a problem. Mr.Wexler said the applicant can get a sense of the Board this evening on how they will be vote and then proceed with further development of the working drawings. Bill Powell,of 63 Valley Road,addressed the Board. He said the only change is on the left side. They are not building the second floor,because it was brought to their attention it would be intrusive. He said they are only asking for the Board to approve the variance as amended verbally,so that the Building Department can approve the plans when they get submitted subject to this discussion. He is not sure why there is suddenly this distrust,that the Building Department will then look at a plan that they would draw that wouldn't be in accordance with the variance. Mr.Wexler said the Board usually has a set of drawings in front of them that they tie to the variance. Ms.Gallent said the variance usually says that it includes construction as shown on the plans submitted. Mr.Wexler said sometimes the Board permits modifications to that. Mr.Wexler feels there is enough inconsistency in their request. Mr.Gunther said the Board does not have working drawings. Mr.Winick said it is useful to point out that the case this Board was involved with,which went to the Court of Appeals and caused a great deal of problems to the Board and to the Town,was one where someone built a second story over a disapproved first floor in a nonconforming area. There is a particular sensitivity here. He suggested that it is cleaner to do it the other way. The applicant can get a sense of Zoning Board April 26,2000 Page 27 the Board. It is Mr.Winick's guess that if four members of the Board support it,it is a mechanical thing to get another set of drawings back to the Board for review. He said he will do it either way. Mr.Gunther said there is less room for error on anyone's part. If a set of drawings come in that may or may not be substantially identical to what was presented,then the whole application has to come back to be reapplied anyway. Mr. Wexler said they are supposed to have working drawings. They need elevation changes, need corrections to the site plan,etc. This will go into the file folder. Someone may come in ten years from now and Mr.Carpaneto may not be with the Town,may want to put an addition on and will see a site plan that shows a rear yard that is not accurate. Mr.Keller asked if they have to come back before the Board,or just present a new set of drawings. Ms.Gallent said he doesn't have to show up. After some discussion,Mr.Wexler said the Board has to do findings. Mr.Gunther asked if there were any other questions from the public on this application. There being none,Mr.Gunther said he does not have a problem voting in favor of the application. Mr.Winick,Mr. Wexler and Mr.Simon said they are in favor of it. Mr.Gunther informed Mr.Keller that Mr.Wexler's request to come back with a set of working drawings to clarify the application is appropriate. He asked the secretary when submission of new plans is needed, at which time the secretary said at least ten days prior to the next meeting. Mr.Wexler explained what portions needed to be amended,suggested that the calculations be corrected, and that it should be reflective of what he wants. Mr.Gunther said the next meeting is May 24,2000. He informed the applicant that he may be present not present. On a motion made by Mr.Gunther,seconded by Mr.Winick,it was unanimously RESOLVED,that the Public Hearing of case#2396 be,and hereby is,adjourned to the May 24, 2000 Zoning Board meeting. The Secretary read the next application as follows: APPLICATION NO.7-CASE 2397 Application of John McIvor requesting a variance to legalize an existing rear wood deck. The deck as built has a rear yard of 20 ft.where 25 ft.is permitted pursuant to Section 240-39B(3)for a residence in an R-6 Zone District on the premises located at 10 Dimitri Place and known on the Tax Assessment Map of the Town of Mamaroneck as Block 121,Lot 540. James Fleming,the architect for the project,appeared along with Mr.McIvor. Mr. Fleming said the application is to legalize a deck that was built about 20 years ago. The house is up about 4 ft.from the back,so there was something there beforehand when the house was built. Mr.McIvor said he has resided there for 29 years. The situation presents itself as a 20 ft.rear yard,and is alright on either side yards. However,it was built out 5 ft.into the rear yard. With the situation at hand in the back,it seems to work very well being in the middle of the rear yard. It doesn't seem to be affecting the neighbors,is lower than most of the property around it,and everyone in that area has a similar back yard with a deck. Zoning Board April 26,2000 Page 28 Mr.Gunther asked how the deck got there. Mr.McIvor said there was a 6 ft.by 6 ft.small deck which rotted out and Mr.McIvor built this deck approximately 20 years ago. Mr.Gunther asked if there were any comments from the public on this application. There being none,he asked if there were any other comments or questions from Board members. There being none,on motion of Mr. Gunther, seconded by Mr. Winick, the following resolution was proposed and ADOPTED unanimously,4-0. RESOLVED, that this is a Type II action having no significant impact on the environment pursuant to 6 NYCRR§617 et seq. Accordingly,no further action under SEQRA is required. On motion of Mr.Winick,seconded by Mr.Wexler,the following resolution was ADOPTED: WHEREAS,John McIvor has submitted an application to the Building Inspector,together with plans to legalize an existing rear wood deck. The deck as built has a rear yard of 20 ft.where 25 ft.is permitted pursuant to Section 240-39B(3)for a residence in an R-6 Zone District on the premises located at 10 Dimitri Place and known on the Tax Assessment Map of the Town of Mamaroneck as Block 121, Lot 540;and WHEREAS,the Building Inspector has declined to issue such permit on the grounds that the plans submitted failed to comply with the Town of Mamaroneck Zoning Ordinance with particular reference to Section 240-39B(3);and ( WHEREAS,John McIvor submitted an application for a variance to this Board for the reasons set forth in such application;and WHEREAS,this Board has examined the plans,inspected the site,reviewed the application and has heard all persons interested in this application after publication of a notice thereof and a hearing thereon;and WHEREAS, the Zoning Board of the Town of Mamaroneck makes the following findings as required by New York State Town Law§267-b: 1. The Board finds that the benefit to the applicant from the granting of the variance outweighs any detriment to the health, safety and welfare of the neighborhood or community. In reaching this conclusion,the Board considered the following factors: A. After looking at the property and photos submitted and listening to the applicant's representative,Mr.Fleming's description of the property,the Board finds that the deck is appropriate for the surrounding property. While it penetrates further than permitted into the back yard,the deck is in the middle of the property and therefore does not crowd either of the adjoining properties. The property next door has a bump out which comes out on the same plane.As a consequence,there will not be an undesirable change produced in the character of the neighborhood,or a detriment to nearby properties created. B. The applicant cannot achieve his goal of having an outdoor space given the elevated rendering of the house without some form of area variance. C. The variance is not substantial. Zoning Board April 26,2000 Page 29 D. There will not be any adverse impact on the environmental conditions in the neighborhood or district. E. While the need is self-created,this not a determinative factor in and of itself. F. The granting of this variance is in harmony with the general purposes and intent of this Ordinance and will not be injurious to the neighborhood or otherwise detrimental to the public welfare. G. The variance is the minimum necessary to alleviate the difficulty detailed in the application yet also preserves and protects the character of the neighborhood and the health,safety and welfare of the community. H. The strict application of the Zoning Ordinance and the Town Code would deprive the applicants of the reasonable use of the land/or building,and the variance granted by this Board will enable such reasonable use. NOW,THEREFORE,BE IT RESOLVED,that the subject application be and the same is GRANTED,subject to the following conditions: 1. This,variance authorizes the construction as shown on the plans presented and no other. 2. The applicant shall obtain a building permit within six(6)months of the filing of this Resolution. This decision shall be filed with the Town Clerk as provided in Section 267-a(2)of the Town Law. Mr.Mclvor thanked Mr.Carpaneto and his department for their help and assistance,noting they are all very kind and pleasant. APPROVAL OF MINUTES On a motion made by Mr.Gunther,seconded by Mr.Simon,the Minutes of the February 29,2000 Zoning Board meeting were unanimously approved,4-0. On a motion made by Mr.Gunther,seconded by Mr.Winick,the Minutes of the March 22,2000 Zoning Board meeting were unanimously approved,4-0. NEXT MEETING The next meeting of this Board will be held on May 24,2000. ADJOURNMENT On a motion made and seconded,the meeting was adjourned at 11:00 p.m. ogMargu Roma,Recording