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HomeMy WebLinkAbout2001_10_24 Zoning Board of Appeals Minutes MINUTES OF THE REGULAR MEETING OF THE ZONING BOARD OF THE TOWN OF MAMARONECK OCTOBER 24,2001,IN THE SENIOR CENTER,TOWN CENTER 740 WEST BOSTON POST ROAD MAMARONECK,NEW YORK Present: Thomas E.Gunther,Chairman Richard Coico Jillian A.Martin Arthur Wexler Paul A.Winick Also Present: Robert S.Davis,Counsel Ronald A.Carpaneto,Director of Building Nancy Seligson,Liaison -57 Denise M.Carbone,Public Stenographer Carbone&Associates,LTD. 111 N.Central Park Avenue Hartsdale,New York 10530 RECEI':^ DEC 26.�tiuu Marguerite Roma,Recording Secretary CALL TO ORDER The meeting was called to order by Chairman Gunther at 7:40 p.m. Mr. Gunther said that we'll deal with calendar items,schedule our next meeting date and review open Minutes at the end of the meeting. Mr.Gunther said that one of our members is not present,but she is due here and may be a few moments late. When we call your case,if you would like us to hold your case over until our fifth Board member arrives we will be happy to do that. Mr.Gunther asked if the first applicant,Robert Bell,would like to proceed. Jeff Berman said he would like to wait for....inaudible. Mr.Gunther said we will be happy to hold application number lb and lc,Robert Bell Associates for Jeff and Karen Berman. Mr.Gunther asked if application#2,John Collado,is here. Mr.Collado said he is present. Mr.Gunther asked Ms.Roma to read application#2. Mr.Gunther asked if Mr.Collado just walked in. He said yes. Mr.Gunther Mr.Collado that said he just announced to everyone that one of our Board members is not present,but that Board member is due here momentarily. If you'd like to wait until she comes,we can go on to the next case and here your case when all five members are here. If you'd like us to proceed, we can do that as well. Mr.Collado asked if the Board can vote without her. Zoning Board October 24,2001 Page 2 Mr.Gunther said yes we can,as long as three out of the five members vote in favor...inaudible.. Mr.Collado said he would like to proceed. Ms.Martin arrived at this time. The Secretary read the application as follows: APPLICATION NO.2-CASE 2464(adjourned 9/19/01) Application of John Collado requesting a variance to construct an addition to the existing garage and a new driveway on the premises located at 3 Hawthorne Road and known on the Tax Assessment Map of the Town of Mamaroneck as Block 404,Lot 512. The garage addition as proposed has a side yard setback of 1 ft.+-where 5 ft. is required pursuant to Section 240-36B(3)(b),the driveway as proposed has a setback of 1 ft.+-where 5 ft.is required pursuant to Section 240-79B;and further,the addition increases the extent by which the building is nonconforming pursuant to Section 240-69 for an accessory building in an R-15 Zone District. John Collado,of 3 Hawthorne Road,Larchmont,addressed the board. He said his presence here actually is a continuation from the last meeting. At that meeting,we decided to look at possibly modifying the driveway to make it fit more with the Town code. The submittal originally had a setback of 1 ft.in the driveway. We've modified our original submission to give it a 3 ft.clearance from the property line. We've also modified the addition for the garage. We made the addition smaller. The original addition to the garage was 12 ft.by 7 ft. We modified the addition to give us more clearance away from the property line. We made the new addition 10 ft.by 7 ft.,which is also 3 ft.away from the property line. Mr. Collado said he is here today to request that hopefully the variance be granted. Mr.Collado said he also has a letter from his next door neighbor and she has no issues with me putting the driveway on my property side. Mr.Gunther asked which address that is. Mr.Collado said that is 7 Hawthorne Road,the neighbor adjacent to me. He reiterated,she gave me a letter that she and her husband have absolutely no problem with the proposed driveway, signed Mary Goldiner,marked exhibit#1 and read it into the record. Mr.Gunther said I just want to be sure what we spoke about the last time. There's a large tree there and asked,there's no tree removal? Mr.Collado said that is correct. There is no tree removal that will take place with the proposed driveway. Mr.Gunther asked if there are any questions from the Board members. There being none,he asked if there are any questions from the public on this application,no comments? There were none. On motion of Mr. Gunther, seconded by Ms. Martin, the following resolution was proposed and ADOPTED unanimously,5-0. 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 Ms.Martin,seconded by Mr.Wexler,the following resolution was ADOPTED: WHEREAS,John Collado has submitted an application to the Building Inspector,together with plans to construct an addition to the existing garage and a new driveway on the premises located at 3 Zoning Board October 24,2001 Page 3 Hawthorne Road and known on the Tax Assessment Map of the Town of Mamaroneck as Block 404,Lot 512. The garage addition as proposed has a side yard setback of 1 ft.+-where 5 ft.is required pursuant to Section 240-36B(3)(b),the driveway as proposed has a setback of 1 ft.+-where 5 ft. is required pursuant to Section 240-79B; and further, the addition increases the extent by which the building is nonconforming pursuant to Section 240-69 for an accessory building in an R-15 Zone District;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 240-36B(3)(b),Section 240-79B and Section 240-69;and WHEREAS,John Collado 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 testimony of the applicant and observation at the property itself, there will be no undesirable change produced in the character of the neighborhood or a detriment to nearby properties. Moving the driveway off of Palmer Avenue and around to a less busy street would cause less interference on Hawthorne Road and would be a benefit to the neighborhood. B. It does not appear to the Board that the applicant can achieve his goals via a reasonable alternative, in that moving the driveway to another area will not achieve his goals. C. The variance is not substantial. The side yard setback is 5 ft. It's moved to 3 ft.,according to this new plan. It's an improvement to both plans which he submitted at the previous meeting. D. There will be no adverse impact on the physical or environmental conditions in the neighborhood. In fact,those conditions will be improved with the placement of the driveway in its new location. E. This is not a self-created difficulty. This driveway and garage existed on the property when the applicant purchased it. The improved safety to the homeowner and the community by moving the driveway off Palmer Avenue onto Hawthorne should be considered an overriding factor,an already positive factor in granting the variance. 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. Zoning Board October 24,2001 Page 4 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 Mr.Collado to see the Building Department for his building permit. Mr.Gunther called the following case,which the Secretary read: APPLICATION NO.lb-CASE 2459b(adjourned 9/19/01) Application of Robert Bell Associates for Jeff and Karen Berman requesting a variance to legalize a two- story addition on the premises located at 5 Avon Road and known on the Tax Assessment Map of the Town of Mamaroneck as Block 208,Lot 1. The addition has a rear yard of 17.8 ft.where 25 ft.is required pursuant to Section 240-36B(3);and further,the addition increases the extent by which the building is nonconforming pursuant to Section 240-69 for a residence in an R-15 Zone District. Mr.Gunther asked if the applicant is present,and if so to give his name and address. Jeff Berman gave his name and said he resided at 5 Avon Road. Mr.Gunther asked the secretary if she only read application number lb and she said yes. Mr.Gunther asked Mr.Berman if he would like the Board to deal with one application at a time. Mr.Berman said he would like to do them together. Mr.Gunther asked Ms.Roma to read application number lc,case#2478. The Secretary read the application as follows: APPLICATION NO.lc-CASE 2478 Zoning Board October 24,2001 Page 5 Application of Robert Bell Associates for Jeff and Karen Berman requesting a variance to legalize a two- story addition on the premises located at 5 Avon Road and known on the Tax Assessment Map of the Town of Mamaroneck as Block 208,Lot 1. The covered entry and steps has a rear yard of 15.08 ft.where 25 ft.is required pursuant to Section 240-36B(3);and further,the addition increases the extent by which the building is nonconforming pursuant to Section 240-69 for a residence in an R-15 Zone District. Jeff Berman,of 5 Avon Road,addressed the Board. He said my wife and I are the owners of the property at 5 Avon Road. My attorney,Mr.Simon,is unable to be here tonight. Mr.Simon's colleague,Matt Rivoso,will be providing you with any legal advise. Mr.Berman said here with me also is my architect, Robert Bell,and my wife,Karen. Mr.Berman said my intention is to make our statement myself,with an opportunity for the members of the Board to ask me and Mr.Bell any questions you have. I would then invite the public,including Mr. &Mrs.Weston,and their attorney,Mr.Lieberman,to make their statements. I would ask that the public portion of the meeting include having read into the record each of the letters that the Zoning Board has received since its September 19,2001 meeting. After the public pdrtioh of the meeting,I would ask that Karen and I be given an opportunity to respond to answer any additional questions the Board may have for us. Mr.Gunther said that's the normal procedure that we take. Mr.Berman said before he begins what he hopes will be a short presentation,he would like to distribute a booklet with a few visual aids,marked exhibit#1. Mr.Berman said what he'd like to do is talk a bit about exactly what our variance application involves and also what it does not involve. Then I'll review the merits of each of our variance application,two parts. After that,I'll discuss where we left off at the September 19,2001 meeting and go over our efforts since then to reach a compromise. Mr. Berman said first let me tell you what our variance application is not about. It's not about reconsidering the merits of the variance that the Zoning Board granted us last December. That variance became final and non-appealable in January and the last thing you and I want is to fight that all over again. Our variance application is not about reconsidering the merits of any other variances that the Zoning Board has granted to other property owners. I know this must sound obvious to you,but the thing that really surprised us about the September 19,2001 meeting was the extent that we have been made the latest targets of an anti-variance campaign being carried on by some members of our community. This campaign didn't start with our variance,but whatever variance it was that provoked these people,it seems to have made them angry enough to come to meetings and demand that the Zoning Board throw out good variance applications along with the bad variance applications. I'm sorry that you have to sit here and listen to it, but it's got nothing to do with Karen and me and nothing to do with the kind of variance that we're asking for. Mr.Berman said,what kind of variance are we asking for? First,we're asking for a variance that will let us keep a corner of our new addition that goes beyond 14.4 inches,the setback required by the variance we received in December,2000. Second,we're asking for a variance that will let us keep the outside steps leading to our back door. These two parts of our variance application are not related. The Zoning Board could deny us a variance for the corner and we would still be able to keep the steps. The Zoning Board could deny us a variance for the steps and we would still be able to keep the corner. Most importantly, the Zoning Board could deny us a variance for the corner and the steps and we would still keep our back door. We don't need another variance to keep the door. To have space for a door,we only needed the variance that the Zoning Board granted us in December. As I said,we definitely are not here to reconsider the merits of the December variance. Mr.Berman said let me review as briefly as I can the merits of our variance application as it relates to the corner and as it relates to the steps. I realize you've had ample time to review the submission made by Zoning Board October 24,2001 Page 6 my attorneys in mid-August and also time to get the advice of your own counsel concerning the applicable law. You certainly don't need a lecture from me. First,let's talk about the corner variance. Mr.Berman asked the Board to open the booklet he gave to them to tab#1. Our application for a variance that will let us keep the corner is based on three fundamental items; (1)We can't be blamed for the error that caused our addition to go beyond the setback required by the December variance. The error arose from inaccuracies in a survey that was done before we lived here. The same survey was used by the bank and the title insurance company,when we bought our home in 1995. We had no reason to believe that the survey was defective in any way;(2)The variance that we are applying for is not significant. Please have a look at the picture. Our variance application involved a triangle with an area of about 2 sq.ft., 15.5 inches,on one side times 38.4 inches,divided by 2,or about 298 square inches; 144 square inches in a square foot,that's 2 square feet,another 10 square inch block. This area is insignificant by anyone's standards. Yes,we've heard the arguments that it increases the variance and slices the bologna and what not,but these arguments simply ignore that significance is not the only criteria in granting a variance. Each new variance application has to be considered on its individual merits. In our case in particular,the merits included our lack or fault of a 14.4 inch error that caused our addition to go beyond the required setback. We admit,that's one error that's not going to happen again. Mr. Berman said the third fundamental reason we have for requesting the corner variance is that demolishing and rebuilding the corner lot to form would be unjustifiably costly and wasteful,unjustifiable because the corner is insignificant and its destruction,as expensive as it would be for us,would be to no one's benefit. Unjustifiable,because we are not to blame for the 14.4 inch error. Mr.Berman said I said I wouldn't lecture you about..inaudible the law,but if you don't mind I'll give you a one sentence offering. Variances for errors are justified when the applicant gives credible reasons why the error was made in good faith. That is the law in New York State. Mr.Berman said now let me talk about the steps variance. I know that there's been confusion about whether the plans we submitted to the Zoning Board in December showed the steps leading to our back door. I know that some of the drawings did show the steps,while others didn't. I also know that the drawings made clear that the back door was above grade level,which would lead to the conclusion that there must be steps in there somewhere. I agree that the plans weren't perfect. One reason they weren't is that we assumed that the back steps would be covered by the Zoning Code,so they wouldn't need to be covered by the variance. We were wrong. For reasons that no one can quite explain, the Town of Mamaroneck Zoning Code only covers steps in front yards and side yards. It doesn't say anything about steps in back yards. We can't and we don't pretend that it does. So,we're applying for a steps variance instead of arguing about the plans. We're doing so on the basis of a pretty simple reason. Mr.Berman said first,the Zoning Code provision covering front yard steps and side yard steps suggests that the policies underlying the Zoning Code generally favor outside steps,at least so long as the steps meet certain overall size requirements. Mr.Berman said second,in the absence of any legislative history or other evidence suggesting that there was any policy reasons for not including back yard steps in the Zoning Code,the general policy in favor of steps is a pretty good basis for granting the steps variance. That's our argument. Mr.Berman said let me discuss where we left off at the end of the September 19th meeting. At the meeting Mr. &Mrs.Weston asked the Zoning Board to condition the granting of our variance on an agreement by us to eliminate our back door. Mr.Berman repeated that the Westons asked the Zoning Board not to grant our variance unless we agreed to eliminate our back door. The Weston expressed their problem with the back door as having to do with the noise that it would cause. That's...inaudible. There's always been a back door at 5 Avon Road,at least since the time the Westons bought their house ..inaudible. In fact,the old back door was 5 ft.closer to the property line,than the new back door. In the four years we lived next to the Westons,they never once complained about noise either from the back Zoning Board October 24,2001 Page 7 door or any other noise. Be that as it may,September 19th it certainly appeared,from where I was sitting, that the Zoning Board might agree with the Weston's request,so we offered a possible compromise. Mr.Berman said that Mr.&Mrs.Weston had argued that since the new back door is in a corner location, the noise from it would be collected in the corner and be projected toward their home. I'm no acoustic scientist, so I can't comment. We offered to build an enclosure around the doorway with acoustic insulation to prevent that from occurring. The Zoning Board asked Mr.Lieberman if the Westons would consider such a compromise,and after consulting with his client,Mr.Lieberman said that the Westons would consider a specific proposal. We then asked that our case be adjourned until today. Mr.Berman asked the Board to open the booklet that he gave them to tab#2. This is the specific proposal that we made to the Westons on September 25th,just five days after our case was adjourned. It contains three alternative proposals,a floor plan and elevation illustrating each one. All of the alternatives would change the direction of the back door steps,so that they follow the line of the house and would eliminate the window well and retaining wall. All of them have enclosures around the doorway,with acoustic insulation able to absorb sound at high end or frequencies. Please have a look. Enclosures range in depth from 4 ft.to 5 ft. You can see each of the alternatives would require an additional variance,since the stairs are anywhere from 15.4 ft.to 14.7 ft.from the property line depending on which alternative you're looking at. He reiterated,this was September 25th. Mr.Berman said we didn't hear from Mr.&Mrs.Weston for two weeks. On October 9th,the day before we were required to file additional papers with the Zoning Board,we heard from Mr.Lieberman that the Westons had rejected every one of our three alternative proposals. He asked that the Board to turn to tab #3. Mr.Berman said this is Mr.Bell's rendering of what Mr.Lieberman described to be the Weston's counter proposal. It's a tunnel measuring 16 ft.long. It stretches half the distance from our back door to the end of the front of our garage. It would block every window in our kitchen and basement and would require an additional variance permitting him to come to within less than 11 ft.to the property line. This counter proposal speaks for itself. We did not accept the Weston's counter proposal. We did have further discussions with them in an attempt to find some common ground,but we were unable to reach any agreement. I'm very sorry and saddened to have to report this to you. Mr.Berman said now we have two variance applications on the table. Our application for the corner variance and steps variance and an alternative application for the corner variance that would permit us to build an acoustically insulated enclosure around the back doorway,that's if that is what the Zoning Board would like us to do. We've used alternative"A"in the book,as a basis for the application. Mr.Berman said we respectfully request that you grant whichever of these two variance applications you think is appropriate,under the circumstances. Thank you. Mr.Winick asked Mr.Berman to explain their thinking with the three variations that were put to them. They seem to be subtle. Mr.Berman said it depends on what your view of the appropriate tradeoff between sound insulation and encroachment on the property line. The first alternative has a 4 ft. enclosure that comes in 4 ft. Alternative"C"on the other hand,has a shorter platform so the steps don't have to go as far out,but actually has a larger enclosure which goes down a couple of steps. The middle alternative has a 5 ft. platform,which would result in the greatest encroachment by the steps and a 5 ft.enclosure. It's three different ways of covering the same problem. I think that...inaudible in the chart in front is where you summarize what the affects of those would be and the various things you're trading..inaudible. Each of those implicitly assumes that between 4 ft.and 5 ft.of enclosure is enough to absorb sound that would emanate from knocking on it,slamming the door and some...inaudible. Mr.Wexler said looking at the chart,the application and the variance you're requesting,I'm looking at what variance you are requesting..left hancina. Zoning Board October 24,2001 , Page 8 Mr.Berman said he is requesting a variance for"A",because on"A"the steps come to within 15.08 ft. of the property line. He said"A"is my personal favorite. Mr.Wexler said in this case it's the only one the Board can address tonight. Mr.Berman said it is,but I'm sorry I couldn't choose one of the others because my neighbors didn't agree to any of them. I had to pick the one I thought made the most sense. I thought that represented the most appropriate tradeoff between sound insulation and enclosure on the other. Mr.Gunther said that's what was noticed. Mr.Berman said yes,that's what was noticed besides. I picked it. I had that one noticed. Mr.Winick asked wouldn't"B"be consumed with"A"..inaudible. Mr.Wexler said "B"would not be, that's the greater variance. He said "C"would be closer to the property line. After some discussion,Mr.Berman said if"C"gives you the least encroachment by the stairs,a somewhat greater encroachment if all you consider as opposed to"A",is the encroachment of the enclosure itself. Also,it's a little uglier,because you have to have the enclosure go part of the way down the stairs. It cuts like in the doorway...inaudible. ( Mr.Gunther asked if there were any other questions from the Board. There were none. Mr.Berman said if there are no questions for me or Mr.Bell,I'll turn it over to..interrupted. Mr. Wexler said the outdoor light that's ..inaudible next to the door going to the outside,with the enclosures will that light be within the enclosure. Mr.Berman said...inaudible. Mr.Wexler said so it will eliminate a light source that you would normally have...inaudible. Mr.Berman said we would eliminate it outside. Mr.Gunther said there is no door on the enclosure. Mr.Berman said it's open in the front,with an entry that is the same width as the doorway. It comes around a little bit in the front. The idea might be to trap some additional sound. Mr.Gunther asked if Mr.Bell had anything else to say. Mr.Bell said unless there is something the Board would like,I think the point was made last time about the five...inaudible. The one thing I would emphasize is that this building is about 1,880 sq.ft.of a 16,464 sq.ft.lot. It's about the majority of this lot. It's devoted to public area. We're talking here,even if we cut this off,if the Board was to say I'm sorry you have to cut the edge off Mr.Berman,we're talking about reducing the piece two hundredths of 1% of the lot occupancy. This is not an unusual encroachment in any sense of the word. The whole reason that this issue came up,is because the character of the Berman lot is that..inaudible. To say that this is changing the character,and there are letters here that talk about encroaching and using too much of the lot,no. The fact is,this house uses very little of the lot. The whole reason that we had to come to you for a variance in the first place,beside the fact that we though we had a right to choose rear yard versus the side yard,was because this is the appropriate place for the addition. It's a very small,narrow...inaudible lot. Zoning Board October 24,2001 Page 9 Mr.Winick said that tab 4 in the presentation shows the location of the former rear door and the current rear door. He asked,have you ever measured the distance as it is shown? Mr.Bell said I haven't,but my client represents a measuring..interrupted. Mr.Berman said he has a...inaudible laser distance measure. On Monday morning I stood where the old doorway is and I aimed my laser measure at the..inaudible,which they showed me the day before. The distance from the old door to the Weston's bedroom window was right around 39 ft. I went then to the new door,I did the same thing,and it came out to be right around 40 ft. I honestly don't regard those ..inaudible,but they also certainly don't support an assertion that the new door is closer to their bedroom window than the old door. Mr.Berman said that drawing is from a topo map. • Mr.Winick said can I ask you,on behalf of the people whose matters are behind yours tonight,not hold anything back..inaudible. Mr.Gunther asked if Mr.Berman has anything else you want..inaudible. Mr.Berman said no sir. Mr.Gunther said anyone else in your group? ( Mr.Berman said I think we would just like to reserve time at the end to respond. Mr.Gunther asked if there are any questions or comments from the public on this application. Edward Lieberman, of 5 Oak Road,Elmsford,New York,who represents the neighbors immediately behind the applicant's house,Mr.&Mrs.Weston,addressed the Board. He said I hope,Mr.Chairman, that your current condition is not the result of an applicant or an opponent for that matter. Mr.Gunther said it's a skin cancer. Mr. Lieberman said although the drawing that you've seen tonight and the latest proposal may seem reasonable to you,when exposed to the light of day it proves to be,all three of these,as disingenuous as the applicant's previous argument. You remember that it is this applicant that told you that their difficulty was your fault originally,because you rendered an ambiguous decision. Fortunately,that argument has been withdrawn. Then last month,and again tonight,the applicant made a remarkable argument saying in effect that no survey is accurate. Now if that's true,then your Board could never grant an accurate variance. To make the argument,furthermore,that even if surveys are inherently inaccurate,are they inaccurate to a point that there would be a difference of 1.2 ft.in 19. That's an enormous margin of error. Mr.Lieberman said at the end of the last meeting,the applicant suggested an enclosure. Blame it on the hour. I don't know,it was rather late. I thought they meant that they would enclose enough,so that the noise from the traffic, from the talking and from the door,would be enclosed to a point beyond the bedroom window. When the Westons received the applicant's suggestions,they retained an architect at their own expense to review their plan. The architect found them to be more cosmetic than anything else. In fact,the applicants'latest offer is in fact worse than what currently exists. . Mr.Lieberman said you have in your packets from the last meeting a photograph showing the door from the Weston's bedroom window. If you look at that door and what is being proposed,the applicants are proposing to enclose their door,concentrate the noise and cast it out even closer to the Weston's bedroom windows than what currently exists and they're requiring a larger variance to boot. Think of this as a Zoning Board October 24,2001 Page 10 megaphone. This enclosure is going to concentrate the noise and cast it out 4 ft.to 5 ft.closer to the Weston's bedroom windows than what currently exists. Mr.Lieberman said let's take a step back and think about why we are here tonight. The applicants are the ones who violated your condition and for them to say we can't be blamed, this arose out of an inaccuracy of a survey. Well,that's why as-built surveys are done. By the applicant's own submission to you,they knew about the violation right after the addition had been framed and enclosed. Yet,with knowledge of this violation,they continued to construct and now they come to you and say demolishing this would be unjustifiably costly. While I submitted to you law at the last meeting which says that when a difficulty is self-created,the cost is not a consideration. They made their own difficulty,now they can't be heard to argue that it will cost a lot of money to rectify because they continued for several months constructing this. They could have stopped it right there. They could have come to you and you could have acted on it then. Mr.Lieberman said the second argument that Mr.Berman made was that it's not significant,it's only a couple of square inches,1.2 ft. That is not true. The variance is from 25 ft.to 17.8 ft.and tonight they are asking you for another variance to come even closer. Also,there is the precedent that will be set. You set a condition,they violated the condition. For you to now grant the variance to legalize the violation would make it difficult for you in the future to deny similar variances. Now that violation has impacted on my client's quality of life. Yet,you have been asking my client to consider concessions to bail the applicants out of their self-created dilemma and in spite of the unfairness of that request,my clients have come up with not one but two solutions that would enable the applicants,at least in their view,to keep the corner. That would be#1,to remove the door which is the item which has been causing the disruption to their quality of life,and second,to enclose the walkway to a point beyond their bedroom windows. If you look at tab#4 of the applicant's submission to you this evening,you will see that what they denominate as the door,the previous door,is in fact beyond their bedroom window. Furthermore,if they were to enclose up to that point,the noise would be kept that way,to your right as you're looking at the picture, and not to the left toward their window. They would be amenable to that variance, even though it's technically larger than what they're proposing. If they enclose it to a point shown on this tab,that would concentrate the noise we collected and cast it away from their bedroom windows not toward it. They would accept that and that is,in fact,what we propose. Mr.Lieberman said the applicants are unwilling to make any concessions in order to mitigate the impact upon my clients quality of life. They are willing to loose a corner of their addition,in order to keep that door. They are unwilling to enclose the walkway,because to do so as it was explained to us,would loose their kitchen window. Thus,the applicant has made a choice. The door trumps the corner,the window trumps the enclosure and the both trump my client's quality of life. The applicants are,in affect,daring you to deny the variance. Mr.Lieberman said you have three options. You can deny the variance,you can grant the variance or you can grant the variance with conditions to mitigate the impact. We're asking you to grant the variance which would avoid the cost of removing that corner, with a condition to remove the door which has generated the noise which has impacted on my client's quality of life. We recognize that that solution does not necessarily mean that the door will go away. The applicants could keep the door,but to do so would require them to remove the corner. I respectfully submit that that is the only thing you can do now which has a chance of mitigating this situation. It should be noted that the applicants already have a door out to the rear of their premises in a location which the Westons do not find objectionable. So this solution would not leave them without a rear ingress or egress. Moreover,if you look at the submission at your previous meeting that was submitted by the applicant's attorney,they had two floor plans. If you look at those floor plans,you will see that the applicants could gain access to their kitchen from the garage by way of a stairway. It's not a situation where the applicants are without any means of somehow getting their packages to the kitchen without having to go through their dining room. There is a way for them to do this if they wanted to. They have made their own difficulty. Under the circumstances,this is a significant and a substantial variance from 25 ft.down to 17.8 ft.in the first case. Zoning Board October 24,2001 Page 11 Mr.Lieberman said in the second case it's almost a 50%variance,so it is substantial. It has impacted adversely on the character of the neighborhood,the conditions and the adjacent property. There is a method feasible for the applicant to avoid the necessity of this variance,which I've explained to you,three options. Most importantly,this difficulty is self-created. Under the circumstances if you apply the law, you must either deny the variance or I submit that the better way to go would be to grant the variance on condition that the door be removed. Mr.Lieberman thanked the Board and said I believe my clients would like to make a statement. Mr. Gunther said before that, are there any other questions or comments from the public on this application? John F.Williams,4 Dundee Road,the neighbor on the other side,said he is not going to restate his objections. They've been articulated in previous meetings,but I was asked by Jim Kane to read his letter which he faxed. He's in Cleveland and couldn't attend. The letter reads as follows: "Board of Appeals, application of the Bermans, 5 Avon Road; "Dear Members: This letter is written to reconfirm my opposition to both the previously granted and any additional variances related to the captioned application. This has been an exhausting process for all involved,particularly for the Berman's immediate neighbors. The Board's failure to take a definitive position on the matter has been noted by those of us who have attended prior hearings. The Board's reluctance to enforce our zoning laws calls into the question the effectiveness of the process we have all relied on. Permitting this project to proceed as currently designed not only undermines what remaining confidence we have in our zoning laws,but further dilutes your abilities to properly address similar requests in the future. This project has received no support from anyone other than the applicant and the application process has been flawed by misleading or incomplete documentation. I encourage the Board to send a clear message of its commitment to enforcing our zoning laws and protecting our neighborhoods from these unnecessary and undesirable expansions. Sincerely, James Cain,6 Oxford Road,Larchmont,NY. Mr.Gunther asked if there were any other questions or comments from the Board. Russell Pelton,3 Oxford Road,said that he's appeared before the Board before. You know my decision in this matter. It's been very aptly stated by counsel. I don't see any need for me to repeat it,except to accentuate it. There are others in that area who feel the same way as I do that are not here tonight,but the neighborhood is opposed to it as you well know. Rich Weston,of 7 Avon Road adjacent to 5 Avon Road,addressed the Board. Mr.Weston said he would like to reach a solution that the Board believes is consistent with the spirit and letter of the zoning code. One that is fair and one that addresses the concerns that we and others expressed. In a conversation with Jeff Berman last weekend,it was apparent he did not understand our concerns. We stood in our bedroom window,looked at where the portico might be and Jeff said I thought your concern was the slamming of doors. It's surprising that our concerns are not understood,since they are not complex and since they have been the subject of so much time that we all have spent here. I will restate them again,and hope there isn't any confusion about the issues that we're raising. Mr.Weston said we are concerned about the noise that will emanate from the rear entry of the Berman's house. It is likely to be among the most frequently used doors and will have a great deal of traffic at different hours of the day with attended goodbyes,thanks for coming,do you have my soccer ball,etc. The design of the addition and the placement of the door will reflect the sound back towards our house, a different sound pattern than prior to construction. Mr.Weston said that Mr.Berman has shown you this. I don't know what this is. If this is supposed to be my house,it's not close to the footprint of my house. LI don't know what this yellow dot is. This could be the air conditioner,the room unit for my master bedroom. It could be a far window from my master bedroom. I don't know what these things are. As I have gone through this process,I've seen shadow diagrams,I've seen drawings like this presented to us on the night of the hearing that say react to this. I get tired of looking at things like this,but be clear. I do not recognize what is purported to be the footprint of my house on this diagram. Zoning Board October 24,2001 Page 12 Mr.Weston said the second aspect of our concern,is that we are concerned about the noise from the foot traffic that will result from the door as people move from the door to the driveway and garage. This traffic is directly opposite our bedroom window. While people may walk silently from one point to the other, I doubt that will be the norm or even typical. Mr.Weston said third,the entry door and the foot traffic are closer to our bedroom and living room windows than they were before the addition was completed and exceed the variance granted. The access steps and platform,combined with this additional distance,exacerbates the concern we have as to the noise so close to our home. We're concerned. Just to put this in perspective,if our house and the Berman's house were properly zoned and faced back to back,there would be at least 50 ft.between their house,from one house to the other. If they were properly zoned with a rear yard to a side yard, there would be between 35 ft.and 40 ft.between them. If the door,the nonconforming addition and the steps remain as they are,the distance would be about 24 ft. About 13 ft.from the steps to the side and about 13 ft.from the steps to the property line and about 11 ft.from the property line to the wall on our side. Less than 70% of the minimum side yard,back yard distance and a little more than half of the larger side yard dimension. Mr.Weston said the potential for noise is affectively the last of our concerns. Our other concerns are diminution of the space between our houses,the loss of light into our windows and the impediment to the views from windows inside our house. Our fear arising from these concerns have been fully realized and given the process,don't seem to be reversible. Our concern about noises is not new. It has been raised at each meeting of the Board. We have proposed solutions and have not received responses for our proposals. We indicated a willingness to look at any idea that would address our concerns. At the last meeting an unproposed portico solved this issue. We repeated our willingness to look at any idea. We carefully considered the portico,as Mr.Lieberman said,going as far as to retain an architect to evaluate the effectiveness in addressing our concerns. Unfortunately,we learned that the portico would have little but cosmetic value in reducing noise. It doesn't solve the issue. It is equally ineffective to an idea the Bermans raised in July of this year,regrading the yard to reduce the protrusion of the steps. In response to the regrading idea,and articulating why we believe it to be ineffective,we suggested that the Bermans consider changing the entry door from its present position in the rear of the house to a position in the front if the house. This would fully address our concerns over noise. At that time,we receive no response to this idea. In the conversation with Jeff last weekend, we asked again about this repositioning. He responded that putting the door in the front would disrupt columns that had been built in the room over the garage and would affect the placement of furniture in that room. Mr.Weston said another idea we put forth and discussed last weekend,and one that would fully solve the issue, was to use an entryway through the garage. Jeff responded that he could not bear to lose the mudroom that has served the rear entry door. Jeff further expressed his discomfort in both alternatives with the lack of an entry door close to the kitchen and did not consider the two french doors in the adjacent dining room sufficient to address that discomfort. I thanked Jeff for making the effort to begin a dialogue with us this past weekend. We had tried to do the same six weeks ago,but were not successful. I don't know what is different between now and then,but I agree the dialogue is better than the no dialogue. In this conversation,however,Jeff characterized the entry door as non-negotiable and if that is so,then we are truly at an impasse. The entry door is non-negotiable,yet the noise it will likely create for us is the basis of our concern. What remains is a structure that is in violation of the variance granted by this Board, with access steps and a platform that is actually in violation of the Board's decision. It is not fully clear to me that removing the offending corner of the structure,the steps and the platform,will address this concern and Jeff indicated to me that if they were required to do so they would actively seek a way to locate an access door in this area and possibly regrade the yard to reduce the number of steps required for such access. This would not address our concern of the noise,but would enforce the Board's initial variance and avoid a potentially harmful precedence of allowing the over built portion of the addition to remain. I also know that I'm not an architect, nor interior designer and that there are limits to my creativity and knowledge in trying to solve this concern. Of the four solutions I just mentioned,two fully solve the problem,two do not. If there are other solutions that others can devise,we would again express our willingness to look at them and try to understand how they felt. I do know that while we've had no Zoning Board October 24,2001 Page 13 part in the design or construction of the addition,we are not going back on any consents we have given nor changing our stated concern as to the addition. We are the family most directly affected by it. We have,however,over the course of this process seen most of our fears and those of the neighborhood realized in the size, intrusion and elimination of light and space to the Board's granting of the initial variance and the construction of the addition beyond the terms of that variance. It is unlikely that any of those initial issues can at this time be addressed. We are hopeful that the Board act fairly and forcefully in addressing only the remaining issues. Thank you. Mr.Gunther asked if there are any other questions from the public on this application. There were none. Mr.Gunther said there were letters that came in from various individuals on this application. He read letters that were received from Natan Vaisman and Beth Roberts, 12 Avon Road, Barry P. Gold,38 Winged Foot Drive,Neil and Doreen Davidowitz,6 Avon Road,Mark C. Zauderer, 11 Avon Road, Stephen C.Langan,9 Avon Road,Mark and Jennifer Hirschhorn,8 Avon Road,Janice and Jerry Malett, 7 Dundee Road,which are a part of the record,. Mr.Gunther asked if there were any other letters or comments from the public. Mr.Bell said he just wanted to respond to two points in these letters. The first is that somehow assuming for the sake of arguments that the error by the surveyor is in good faith,it does somehow(a)excuses this and(b)somehow mitigates the impact. It doesn't. The point of the matter is,and I submitted case law to you at the last meeting,that good faith is not a defense to a self-created hardship. Builder's error is builder's error. Think about this. The builder was not retained by my client. The builder was not retained by your Board. The builder was retained by the applicant. The applicant is responsible for the builder's actions. Why should my client pay,in terms of the impact on their quality of life,for the error of the neighbor's builder whether or not it was in good faith? Mr.Bell said there was another item that I wanted to respond to,and I'm having a senior moment. If I remember it,I will raise my hand. Robin Weston, of 7 Avon Road, addressed the Board. She said my husband, I think, has spoken ...inaudible for many months about our concerns. I think the one thing that I would ask this Board...we have not tried to cast the Bermans as villains. We have not said they've done things out of malice. We have said that what they've done has had an impact, a direct and detrimental impact on us. What is required is a variance to..inaudible that detrimental impact. We have asked you not to do it,because it seems wrong. As most of you know,this has been a long an agonizing process for all of us. We have learned a lot. When we initially approached you,there are those among you who said we were naive. We didn't have a lawyer, we weren't antagonistic,we simply articulated our concerns and hopefully throughout this process that's exactly what we have continued to do. But,we have learned a lot. This is really not a neighborly process. It's a legal process. There is a law. In December,after a great deal of discussion as to where this building could go,it has gone beyond that. It is now actually going even further than the original variance requested. We can stack up our letters of people that object. The Bermans can stack up their letters of people who support it. The bottom line is it's going to be,as we have now learned,a question of law. They have alternatives. By their own admission they have said,you deny this variance,we're going to build this one way or another. So fine,if they can do it without a variance don't grant the variance. They have,by their own admission,said they have..inaudible. Most important to me,and I have gone through this in my head over and over again the last couple of days when we spoke to Mr.Berman over the weekend,there was a point at which he said I don't get what everybody is so angry about. Why are the neighbors so concerned,and it wasn't because of..inaudible. There has been 16 Mohegan,as you all know. There's been this case and I said I think it's because people are focused on preserving what this neighborhood has to offer that others don't. We moved to this neighborhood because it afforded space and openness that we couldn't get elsewhere in Larchmont and Mr. Berman responded,we moved here for the schools. I could care about the zoning requirements. In fact, I wish I were in a place where the zoning requirements were less restrictive,and that's his right. He is Zoning Board October 24,2001 Page 14 personally entitled to that opinion. What he's not entitled to do is move into this neighborhood and transform it into something that he wishes it were. It is special to us and what they are doing is ..inaudible. We simply actively recognize that and find a balance that says do what you can do to improve your home..inaudible,but don't encroach upon the rights of others. Mr.Gunther asked if there were any other questions or comments from the public on this application. Mr.Berman said my conversation with Rich and Robin on Sunday was remarkable on a couple of grounds. Our conversation was very sad. We were also unable to agree on anything, not a solution,not the underlying facts. So,we departed at an impasse and lost,but I don't think it was hostile. I'm really not going to quarrel with anything that he said that I said,although I didn't say I wished that I lived in a place where fewer zoning regulations. What I said was that I wouldn't mind living in the area on the other side of Rockland,where they have smaller setbacks and sidewalks. Mr.Berman said we've been talking a lot about acoustics here without any expert testimony and I suppose that's because this isn't the court. I really never accepted the idea that a corner could somehow..inaudible directed in a certain way and I never accepted the idea..inaudible basement could somehow collect a window well and be projected out towards the Weston's house. I certainly don't accept this new allocation that the portico I propose,notwithstanding,that I want to put sound absorbent material all over the ..inaudible will act as a megaphone. I don't get it. On the basis of this continuing nonsense,I think I'd like to tell what my preferences are among the two variances that you have before you now. I'd like to do the one without the portico,because I don't think it does any good. I think it's addressing a phantom issue. That's my preference. Mr.Berman said when we discovered this problem,just after Mr.Carpaneto asked about the survey. We did continue to build. The alternative would have been to cut off the corner where it stood,foundation poured,framed,enclosed,and continue to build the door and change the grading so we could get to the door and that would have been that. Fortunately,it would have given no one the opportunity to try to achieve some..inaudible. I think we were right in asking for a variance and continuing to build. I do not believe that we increased our..inaudible by that not being granted by continuing to build. The cost of cutting out the corner at that stage and then redesigning and rebuilding,would have been high. Now, I think it would not be substantially higher and I'm certainly not asking for you to grant a variance on the basis of losses occurred. Mr.Winick said I'm not sure of your point. Mr.Berman said my point is that we didn't present this properly. Mr.Winick said just to follow this,in May what was the state of the house when you discovered this? Mr.Berman said the foundation was poured,framing was up,enclosed/plywood on the outside,and doors framed. Mr.Winick said the only point being made here is the increment of the cost. Mr.Berman said beyond tearing that out,I don't think it's significant. If the Board is concerned that I deliberately incurred costs since that time,I would ask the Board to disregard it. Mr.Bell asked if he could speak. Mr.Gunther said when Mr.Berman is finished,Mr.Bell can come up. Mr.Berman said the significance,as you can see,is the hardest. I know that the code provides you have a 25 ft.setback and we're now asking for a 17.9 ft.setback. I still regard this as insignificant,because Zoning Board October 24,2001 Page 15 our starting place is no longer the code to the prior variance. I also don't think there's any precedential impact. How often will the Board deal with a case like this. It's a surveyor's error missed by the owners, a 2 sq.ft.area..inaudible. Something just makes me think this is...inaudible. I don't think there's any danger of this setting a bad precedent. Mr.Berman said let's talk about the door for a second. Why are we being so...inaudible about the new door? First,our design was developed over a number of years,since just as we were about to start the project,I was at one point Traffic Emissions Instructor and was transferred to Europe. During that time the plans were further refined,etc.,etc. We have an internal design that flows very,very well,which is our living style precisely. That's why we did it. We have a terrific architect and a terrific friend whose helped us with that. He knows us well. He knows everything is in..inaudible. We designed a mudroom specifically to serve that entryway into the pantry and kitchen area. It was perfect for us. Thing one, that's for the steps. Mr.Berman said thing two,why do people have kitchen doors,because kitchens...inaudible people need a close space. He said when I was over at the Weston's,Robin said that's required by the code. No it's not. I tell you now that heat protectors and carbon monoxide detectors aren't required by the fire code either,but that doesn't stop us from insisting on it in the house where I have my wife and children. I'm not taking any chances on it and I'm not going through the mode of common denominator approach fire code. I think that's all I have to say. Are there any questions? Mr.Gunther asked if there are any other questions from Board members? There were none. Mr.Gunther said that the architect wants to speak. Mr. Bell said he specifically wanted to clarify Mr. Winick's questions about why we continued construction. He said the day that I got the survey,I called Mr.Carpaneto and asked his advice on what we should do. I asked,should we stop work,should we cut it off,what should we do? He said Mr. Carpaneto said we have survey errors,they occur. What you should do is finish and then appeal it to the Board. Mr.Bell said that's what we did. We basically followed his instructions. I guess there are other precedents where people have had this same type of problem and have come to this Board for variances. So,we followed his advice. It was not out of malice. It was out of being as responsible as we could be, calling your Board representative and asking what we should do. Mr.Wexler said he's totally confused about one thing. At that point,did you go back to Richard Spinelli and ask him what was with his survey? Mr.Bell said we haven't,I'd like to. Mr.Berman said we didn't hire Spinelli. Spinelli did the survey in 1988. He was not acting as our agent, so we had no way of..inaudible. Mr.Wexler said but the physical environment of the house and the property doesn't move over in 10,12, 15 years. The property line doesn't move. He did a survey which is a dry accessory lifeline. You didn't commission a new survey to have your architect start with. You started on the survey. It's a standard practice in the business. This is the survey you work with it. He certifies it. He's a professional. If this came up and you did not go back to him,how do you know....I'm just mystified that you didn't do that to find out what,where left hanging. Mr.Berman said we were away. I was living in London at the time and my contractor,Murphy Brothers, went in to see Mr.Carpaneto and Aristotle Bournazos. That's all I remember. As far as the amount of space left hanging. Zoning Board October 24,2001 Page 16 Mr.Wexler said it's all quite simple. It might not have brought you here, but it brought you here, meaning this. The result is crucial,from my prospective,to be resolved. I'm trying to understand if there was any action done at that point. Mr.Bell said I did make a drawing,that does show...interrupted Mr.Wexler said that I understand. It's the setback drawing and which one is correct. Are you taking the conservative position that the one that will gives you the most Mr.Berman said I did speak to Spinelli...inaudible and told him that the kind of error I was describing was plausible because of the..inaudible. Mr.Gunther asked if a gentleman that was in the audience,who asked to speak,has something new to add. Mr.Williams said in the absence of this Board meeting,Mr.Carpaneto's ability to tell him to go ahead and incur costs when it's a known variance application is in the process on a controversial original variance. Mr.Gunther said he doesn't understand the question. Mr.Williams said the architect said he called the Director of Building. The Director of Building,he says, said go ahead and apply for a variance. Mr.Gunther said he's doing that on his own risk,because he's now at the Zoning Board of Appeals. Anyone who will accept anyone's statement who speaks for the Zoning Board is doing it at their own risk. Mr.Carpaneto said he would never speak for the zoning board. Karen Berman,of 5 Avon Road,addressed the Board. Ms.Berman said this is not exactly the hearing that I thought I was going to be walking into this evening. The past meetings have been very hostile. My husband and I have sat and listened to numerous people come and attack us and attack our family. Some reason,I don't know why,because they chose not to appear tonight. My opinion is maybe they came to their senses and maybe something else kept them home. Anyhow,I would like to read what I wrote here. Ms.Berman said contrary to Mr.Lieberman's statement,we're not daring you to do anything and I find that statement offensive. My husband and I are here today,and have been here to request a variance to allow us to keep 14.4 inches of our home. Believe me when I say to you that if we could start from scratch and design our house and exclude these 14.4 inches,we would. These 14.4 inches have caused so many problems. Unfortunately,our construction was based on a survey. A survey that was incorrect. The structure had been built. The only way to correct this mistake is to tear down part of our home. I find that difficult to digest. Ms.Berman said much has been said over these meetings that is not accurate. Members of this community have come forward expressing opinions,which I believe are part of a hidden agenda. Opinions which are shared to confuse myself and the Board and the issues at hand. The issue at hand is 14.4 inches. Our family has been the poster child of an anti-zoning board of an anti-variance movement that has taken hold in our community and started,we believe,with a home on Mohegan Road. We do not want that roll. Ms.Berman said we have discovered that our neighbors at 7 Avon Road have been on a campaign against us and our home for the past nine(9)months to enlist people to fight for their cause. We were not even in the country to protect our rights and defend ourselves. Some of the community members that spoke today,and more so at the last meeting,have appeared here before at other variances to argue against us. This is not what Larchmont is about,and I am disappointed. There's been concerns shared regarding setting precedents. Concern over future variance requests. Yet,another not so hidden agenda. How many Zoning Board October 24,2001 Page 17 corner houses appear before this Board where no one can figure out which is the side yard,which is the back yard,where an innocent mistake of 14.4 inches has been made. This is a very unique case. I wouldn't be so concerned about precedent. Ms.Berman said,I would like the Board to know that numerous times a week,my husband and I are stopped by people that we do not even know,are told how beautiful our home is and are thanked for how much it has added to our community. This anti-variance crusade that has formed is not happy that we were granted variance to begin with,but we were and with good reason. I could fill this room up many times over with Larchmont residents who greatly appreciate the work that we have done on our home,that it has added to their property value and they would commend the Board's decision in granting us this variance. Please make no mistake,we do have an enormous amount of support for approval of this variance of 14.4 inches,as well as keeping our kitchen door. A large number of community members would be very disappointed to here it was turned down. This attack over the past meetings on my family and my home has been very mean. Our neighbors found our achilles heel and went for it. We are the innocent victims of an innocent mistake of 14.4 inches. I would like to go over some of these facts. Ms.Berman said first,we are talking about 14.4 inches. The removal of 14.4 inches from the corner of our home will impact no one other than my family. To remove 14.4 inches will cost thousands of dollars and will leave an abnormally shaped structure. I have heard nothing from these meetings that have showed any evidence of anyone having any kind of hardship over 14.4 inches,other than the residents at 5 Avon Road. I could never in my wildest dreams imagine why anyone would make such a ridiculous request. Second,to clarify Mr.Williams statement at the last meeting that we have been had,how dare you! No sir,you have not been had. I want to make sure that everyone in this room hears me loud and clear,my family is the innocent victim of a 14.4 inch error! An error that was made by its big certified survey company,of which we have no reason to believe was incorrect. There has no malice here and anyone that accuses of this,shame on you! We built our house and were approved of the variance,based on that survey. That mistake has cost us dearly,but it was a mistake that we should not be punished for. We are talking about 14.4 inches. Ms.Berman said third,in regard to questions over our kitchen door. Not everyone will realize this, although it has already been brought up,we've always had a kitchen door. When the Westons brought their home at 7 Avon Road,there was a kitchen door on 5 Avon Road. In the four years that we've lived in our home,before the renovation,we never once,not once,received complaints from the Westons or any other neighbor regarding any kind of noise. Now we have a door that's further from their house when they were built,not only did we have a kitchen door facing door facing the Weston's bedroom,but we had a deck with a table,and a grill and a swing set,all gone,now replaced with beautiful architecture. This is not what Larchmont is about. There are other areas in Westchester where families can live and not hear or see neighbors a week. This is not Larchmont and this is not why families choose to live here. I am sure that it was not pleasant for our neighbors to live through nine(9)months of construction. There is no easy way around that. Ms.Berman said everywhere that I drive in Larchmont,there's construction going on,but no way can anyone compare the sound of drills,hammers and endless workman to the sounds of the families of four. Ms. Berman said fourth, the home on 5 Avon Road existed with its kitchen door,when the Westons purchased their home at 7 Avon Road. Our neighbors have contradicted themselves many times. They say this is about sound,but they won't accept a soundproof portico. They've never complained ever in the past,and unbelievably,the one option of using our french doors in our dining room which causes us to walk the exact same path that we would need to use to get to the mudroom door,the exact path by the bedroom windows,by their living room windows is that path to use a door that they are saying would be a good option for them. I don't get that. They also request that we use a garage door all the time. A garage door that makes a loud mechanical sound sometimes also squeaky. They say it's about distance between houses,yet they suggest instead of us building a portico small,why don't we build a portico that goes all the way down to the end of our house. That is not only dangerous for my family,but brings our homes even closer together. They say that this is good for the neighborhood. How can asking your neighbor to cut off 14.4 inches from their home be good for its neighbor? We have offered the right of Zoning Board October 24,2001 Page 18 compromises to prevent it from being where we are today and to keep the neighborhood peace,but they have all been turned down. Ms.Berman said and yes Mr.Wexler,you were right last time. The events of the past couple of months should be brought up here. It has put life in prospective for me. I know that we have our house and I have my family and that is what's most important. I know that at the end of the day,if we are asked to remove 14.4 inches from our home,we will be O.K. It will be an absurd request and one that will cause wounds so deep that they may not heal. Ms.Berman said we are a country at war with terrorists. We should not be at war with our neighbors. I am very disappointed and saddened we have come to this point,but my gosh,we're talking about 14.4 inches. Ms.Berman thanked the Board. Mr.Gunther asked if there were any other questions or comments from the public. There being none,Mr. Gunther said he would like to close the public comment portion. The Board may have some questions of individuals,but we will not take any more unsolicited comments. This is your last chance if anyone has anything want to say. No one had any comments. Mr.Gunther said thank you very much. We will close the public portion of comments on this application. Mr.Gunther asked if Board members have any other questions. Mr. Coico said he just has one question,directed to both parties. It concerns the acoustics. I want to make sure I understand that you truly have exhausted every single option. In asking that question,I'm aiming at the issue of acoustics and acoustical measures that perhaps have not been considered. I just want to ask whether the idea of a landscaping option is one that should have been explored with expertise. Mr.Berman said I've raised this possibility with..inaudible. The least seems to be,when I talked to the ...inaudible about Arborvitae or other tall vegetation on the border line of the property,the general view is I know the Westons..inaudible site than it does the sound. I think the existing plantings were rather plush and have been damaged somewhat by the construction. We certainly intend to replace those ..inaudible. Mr. Winick...inaudible for a follow-up observation of what you just said. Both parties here are represented by counsel. Apparently both have design professionals. I just want to say that it's a judgment that each of you have to make whether you are happy with the records on these acoustical issues,because I haven't heard an acoustics expert. I heard a lawyer say what an architect said to somebody else. I had a day in court today and I want to tell you that none of this stuff is worth a damn as far as having any hesitation about it. If this is the record you want to give us,this Board has it's own experience which we're supposed to apply,because with air conditioners we deal with complaints about noise. We have the ...inaudible of accumulated experts here. If you give us this record that's what you're going to get, because you haven't given us,to my view,anything to work with here that is of a technical nature. Mr.Berman said I think that most of the need for architectural support is not on my side. Mr.Winick said that's not something I would respond to. It's you're record to make, Mr. Weston's record to make,it's everybody's record to make a certain...inaudible. We're supposed to be receiving information,so my observation is just you and your lawyers as design professionals should decide whether you're done because I think we're heading toward a conclusion of this matter. Ms.Weston said we have done nothing. We had agreed to contemplate a good faith proposal. Through that effort,we hired an architect...inaudible. We have a lawyer. We are staying here doing nothing for Zoning Board October 24,2001 Page 19 this Board to understand this question. Do we have a higher...inaudible than this to satisfy you? What is it you want us to do? Mr.Winick said I'm not going to answer that question. You have counsel,you have a design professional. It's your record to make,however you want to make it. Ms.Weston said but you're asking a question,obviously being unsatisfied. What is it you want us to figure on? What do we need to do for you to answer these questions? Mr.Winick said the observation I made before is that I didn't hear anything about the acoustical issue that's been raised and countered against from anybody who had any more acoustical engineering experience than my pet cat. That's my concern. You can get your own advise from your counsel and your architects, about whether you have other information to produce. I can't tell you what to do. Ms.Weston said I want to...inaudible,but if you do not have the information that you need,how do you ...inaudible tell us what really will answer this question for you,what as residents we need to do to satisfy the information needed for it and we'll do it. Mr.Winick said I can't answer that question,because I can't make your records for you. Ms.Weston said,but you asked the question. What is it you want from me? Mr.Winick said I am speaking...interrupted. Mr.Davis said the only question that Mr.Winick asked is whether either party wishes to add to the record, whether the applicant or whether the opposition wishes to add to the record that has been made. It is not the Board's job to decide what those submissions should be. Ms.Weston said I want to be done. I want to know what you need to know to make a wise decision. His question makes me feel there is information he would like to have which he doesn't have. I'm only saying tell me what it is,so we can finally answer it and resolve it. Let's not leave it in the shadow. If it's something you need to know,let us find out. Ms.Weston reiterated,tell us what you want to find out. Mr.Winick said we're kind of stuck. We don't make your records,you make your records. I pointed • out something to you about my appreciation of what the record is in this case. It's up to yourself to decide,both the applicant and the neighbor,if they want to present something. Mr.Berman said that the applicants are satisfied...inaudible on this case. Mr.Gunther said he has a question,and he's not sure whether it should be....I guess it should be to Mr. Berman. In your packets that you sent us, the last proposal you had under tab#3, let me see if I understand. Tab#3,(he said Mr.Lieberman you may want to look on your copy as well)shows a 16 ft. enclosure that goes from the back door towards the garage area and then some steps. He asked what the property setback is. Mr.Berman said calculated based on the drawing,on the third page of that tab, the setback from the bottom of the steps is 10 ft.8 in. After some discussion,Mr.Gunther said that would be a further incursion into that yard than any of the others. Mr.Gunther said,Mr.Berman I have another question for you. How much would it cost you to take 14 inches off your house? Zoning Board October 24,2001 Page 20 • Mr.Berman said God only knows. Based on preliminary discussions$10,000.appears to be a reasonable estimate. Mr.Gunther asked if there were any other questions from Board members. Mr.Winick said no. Mr.Gunther said the way I would like to proceed with this case is,I'd like counsel to draft up a resolution based on whatever we decide and then present it so it is appropriately drawn...inaudible. At the present time,I'd like to get a sense of the Board regarding whatever way you'd like to go. Mr.Winick said I'd like to inject one issue. Mr.Lieberman has given authority to suggest that builder's error is dispositive of the application. I don't remember the case exactly,because I have the luxury of having a lawyer. I'm wondering in this case whether or not we want advise from counsel on a couple of points that were raised by Mr.Lieberman,because frankly this is a builder's error case unlike any I've seen. I don't know if we should have considered it a legal matter as a builder's error case,I don't know if I nreessarily agree with that law..inaudible,but it seems to me that..inaudible we can certainly seek advise of counsel that may impact our decision. If that's not the sense of the Board,then we should go ahead. Mr.Coico said I would feel more comfortable with legal expertise,before I render my opinion. Mr.Gunther said I'm looking to get a sense of the Board,by asking Mr.Davis if he has advice for the Board. • Mr.Davis said I don't want to comment on the substance of builder's error questions,because I haven't reviewed the material. In considering this application,the Board should evaluate the factors that it always considers on variance applications. The primary factor that governs the grant or denial of the variance is the balance between the benefit to the applicants or the detriment to the community, unless there is something in the builder's error cases that requires different treatment. The other question,clearly of secondary importance,is whether the application invovles a self-created hardship--in my view a mixed question on which the Board's judgement is given very great deference. If you were to decide that it was self-created,whether you gave that fact weight in reaching your decision is also a judgment that would be given very great deference. Mr.Davis said he would feel better able to frame his advice if he had some sense of the way the Board is looking at the primary factors. Mr.Winick said except in the matter of Hoffmann,about nine years ago. Mr.Gunther said before I move on to another point I want to make,with regard the issues relating to ...audible and those factors,the legal requirement indicates it's being made for that. Is that something that you propose as being weighed or do need the record where advised? Mr.Davis said I think that Mr.Winick is absolutely right,that it's the applicant's record to make and there's been an ample opportunity for everybody to contribute to the record in this matter. I have not heard it alleged that the noise caused by the use of the door would create a code violation of any sort or even that it would constitute a nuisance in any formal sense. So,there are two questions for the Board to address. The first is to assess,based on your experience as well as what you've heard and by what you heard I mean what you've heard in the predicted sense and what you've heard about past noise problems, if any,in that location and decide what weight to give it as you think about the detriment to the neighboring properties. The second noise issue relates to the second application and we're told Mr. Berman has expressed a preference for the first one. I didn't hear him withdraw the second one. So,both remain before you. Zoning Board October 24,2001 Page 21 Mr.Wexler said I think the second application addresses the steps. The first application does not address the steps. Mr.Davis said what I've actually done is to say something about the enclosures,which I think is part of what Mr.Winick was talking about with respect to the state of the record. There is first of all the question of whether the enclosures with the sounds opinuating characteristic and second is the question imposed by Mr.Lieberman about whether it would serve as a megaphone. If you think of the enclosure as a condition, the only way in which you could impose a condition would be based on your conclusion that it was reasonably proportional. The imposition of that is a condition was proportional for the impact created by the variance. Not to euchre the condition that existed before the variance,especially what the variance is responsible for and a comment on the record that's you're judgment to make on that motion. Ms.Martin said she has no idea what he just said. Mr.Davis said that in addition to the statutory provision that governs variances,there is also a federal constitutional limitation,on your ability to impose conditions. A condition has to be roughly proportioned to an impact of the underlying action. So,the question here is what's the impact with respect to acoustics? If you conclude that there is a significant noise impact,and you think you have to conclude,given the nature of the likely noise,the volume,however you decide to characterize it,whether this kind of condition is responsive to what the variance would cause and whether it's proportional to it. For example,so that it's not unduly expensive. If you can prove that the impact is trivial and it would be$100,000.to build an enclosure,you might say that's not proportional. If you consider the impact substantial,that there can be a lot of noise here and it's going to be very disturbing, then perhaps a moderate cost of enclosure would be reasonable. That's the judgment you have to make. Mr.Wexler said the applicant's requesting a portico enclosure. We're not making that a condition. Mr.Davis said he was thinking of the opponent's request for a larger and longer enclosure which would require a further variance. Mr.Gunther said before I ask for your general consensus of direction,I just want to remind you of the general factors that we use when we validate the variance. It has nothing to do with he said,she said. It has nothing to do with ..inaudible,but the five specific categories that we sit down with which is code and they are as follows: (1) Whether an undesirable change will be produced in the character of the neighborhood, or a detriment to nearby properties will be created for the variance that is being considered; (2) Whether the applicant can achieve his goals via a reasonable alternative which does not involve the necessity of an area variance; Mr.Davis interrupted. He said it's important not to read the word reasonable out of the text. Before you can deny a variance on the basis of alternatives,you have to decide that the alternatives that exist are reasonable alternatives under the circumstances,and that like everything else here is in your judgment. (3) Whether the variance is substantial; (4) Whether the variance will have an adverse impact on the physical or environmental conditions in the neighborhood or district; (5) Whether there has been any self-created difficulty. Mr.Gunther said those are the five factors. Zoning Board October 24,2001 Page 22 Mr.Winick said this is my sense of where we're going. Mr.Gunther said then what he would like to do is have counsel draft an appropriate resolution. Mr.Winick said my purpose is to point out to Mr.Davis_because I find the system to be remarkably convoluted. This is where I am on this application. I'll start by saying that I don't think inaudible. We have previously granted an application in which we discussed in some length the replacement of a door where it currently exists in the addition. I don't think we revisited that decision in this application. It's not a part of the application and I think it's bared by the fact that it inaudible denial on the grant of the initial variance. No matter what anyone's opinion is about that, it's a done deal. We will not reconsider the original variance that was granted. What we are considering is the additional encroachment that was precipitated by the surveyor's error. I believe that a serious concern here is the impact that we can give the surveyor's error,as a matter of law. As a matter of fact,I can see what happened. I don't think we can...inaudible and we potentially relied upon that. It seems to be something that was not known at the time and there is no evidence to the contrary. Mr.Winick said I am concerned in formulating my ultimate conclusion of...inaudible,but whether or not what the legal impact of the surveyor's error is. Mr.Winick said as I see the application beyond that,the question is,and that's certainly one factor,even though it can be seen as a variance on top of a variance, but other than the surveyor's error it's what I think we were constrained, unless our lawyer tells us otherwise,to look at this as a separate application and to determine its impact too. In that regard,the primary issue that's been raised,what that does to me is it takes out the question of the mass of the structure,as we're all saying this was previously passed on what's built there and what's not. It's exactly what's on the plan. Mr.Winick said my concern is in evaluating the additional impact of that sliver, 14 inches,and there I think the question as it's been presented to us...inaudible and in that area frankly I'm very troubled. I certainly have some indication,from the air conditioning cases that we have taken down on ourselves over the last few years and other experiences that I've had as a lawyer,that noise can travel. I don't think we have very much to indicate here exactly how it can travel. I certainly think it's significant that the only evidence that we have is that the door as it exists now is approximately the same distance from the Weston's bedroom window as the old door,at least as it was shown. We have no evidence to the contrary. We have some evidence to that affect which means that the impact,taking that as the record,we have to consider is whether the fact that there is that notch,it's going to direct the sound in such a way that we need to mediate it in some way. I do not think that changing the problem that exists constitutes denying the variance. Purely it's going to mitigate that,because that notch is still is still there and the door can still be there. I think that I'm suggesting the notion that we should challenge the applicant to fill in their land by 4 ft.in order to get up to the door. I think that's not practical. The question that's before us is whether or not as the construction as it is now is going to require us to put something in place whether the sound that's created....interrupted. Mr.Wexler asked if that's on the additional 14 inches or the...interrupted. Mr.Gunther said it still is the door issue. Given that the sound..interrupted. Mr.Wexler said we addressed that at the first variance granted. Mr.Winick said we have an application to put up that portico. Mr.Wexler said that's a different case. That's the second one. Mr.Winick said I'm not addressing that. The application that is being presented, is in support of the portico. I find myself with a difficulty in trying to evaluate whether or not that's necessary. If there's an encroachment,certainly I am in favor of turning those stairs. I don't think they belong encroaching into Zoning Board October 24,2001 Page 23 the yard. I think,frankly,and I said this to you before Mr. Bell,I think you did us dirty on those drawings. I don't think those drawings were proper for somebody that submitted a supplemental drawing. Certainly I would not bring further discussion,which I believe is the"b"application,which puts the steps out any further. That's kind of where I am. I'm concerned about that noise issue,whether the application will mitigate it,and that's pretty much...inaudible. Mr.Winick said he is close to Mr.Berman and has known him for five years. There is one application without it,one application with it and before we make a decision like that I need to know...inaudible. Mr.Wexler said there are two applications in front of us. The first application is to legalize that 14.4 inches,the little triangular corner. The second application is to redirect the stairs and put in a sound barrier. The first application does not address the stairs. From my understanding it is legalizing a corner, but does not address the stairs. The second application is saying I understand the problem with the stairs, I'll rotate them 90 degrees,or whatever it is,and I'll make the encroachment into the rear yard less than what is presently built there. So, the real question is your response. Are you in favor of the first application? Mr.Winick said I thought that the first application included the stairs. Mr.Wexler said no it doesn't,but it's not noticed. A discussion ensued about the footage involved. Mr.Wexler said it goes down to 13 ft. Where does it say anywhere..inaudible. Mr.Carpaneto said the stairs,it's just the corner of the construction. Mr. Wexler said that's fine. It's just the corner of the construction. Mr. Wexler said we had that discussion last meeting that they thought that the stairs were legal. We brought it up last meeting after reading the code,that they are not allowed in the rear yard. They have to come back and renotice those stairs,if they were as the drawing indicated,13.2 ft. That was never done. What came in our package was the alternative which addressed those stairs. If they were willing to take those stairs out and willing to hug the building out to them,they would be 15.02 ft.away from the property line. You have two issues here. Mr.Wexler said the second application shows the stairs in a new location reducing the impact into the rear yard and a sound barrier of 4 ft....inaudible going to the side portico. Mr.Wexler said that's all that's involved. I'm trying to understand what you said that you're not in favor of that or that you're questioning the portico covered entry with a sound barrier. Mr.Winick said I'm glad I could clarify it for you. Mr.Gunther asked Mr.Wexler's position. Mr. Wexler said I'm in favor of the first application, "lb", and I'm in favor of"lc". We live in a residential community. Houses face houses,doors face doors,second doors face second doors. When you go into a residential community,you get sounds from families. I don't feel there's a necessity of building that enclosure...inaudible. Mr.Gunther asked building which enclosure? Mr.Wexler said the portico over the stairs. I'm in favor of the stairs that brings it both further away Zoning Board October 24,2001 Page 24 from the rear property line. He asked Mr.Gunther to look at"lc"without the cover. The only positive thing that the covering does do is it eliminates the light that's outside that door on the neighbors. That's my prospective. Ms. Martin said it seems to me I'm in favor of the second application. I think the portico seems reasonable. I think there is noise that people have around a door..inaudible that would be contained within a well enclosed enclosure that would address the problem of noise emanating from that situation, not revisit the earlier application,and that seems to be the most reasonable closure. Mr.Gunther said where I'm headed on the application is sort of a combination of both of yours. That is to allow the 14 inches to remain as it is in lb and to require,not to just authorize,but to require the condition of lb that lc be accomplished,that it not be at the applicant's whim,but the requirement that the enclosure be added so that some ability to reduce the potential noise that may be in the area by ..inaudible and reduction of light. In addition to that,I would add 5 ft.on center Arborvitae from the enclosure area,go maybe 2 ft.out which would be out from the house and run parallel to the house down to...inaudible,not along the property line. Mr.Wexler said they have to be careful of being able to get machinery in there to...inaudible and not block the access. Mr.Coico said first he wants to...interrupted. Mr.Davis said before you speak,can I ask the chairman a question? You said you were in favor of the first and wanted the second to be a condition in effect. It seems to me what Mr.Gunther asked for is really approval of the second application. Mr.Gunther said that would be conditioned. The first would be conditioned on the second being built. Mr.Davis said I think you ought to consider..,the first one deals only with the corner. The second one deals with the corner,but also deals with the stairs and the enclosure. Mr.Gunther said it allows a variance for stairs,if the applicant shows that he has a problem to build the stairs and enclosure. After some discussion,Mr.Winick said"b"is...inaudible with"c". Both"c"and"b"are a variance to legalize this current addition;"c"adds support. Mr.Davis said what I was going to suggest is that"b"becomes superfluous on your theory. The way to impose the portico as a condition is to approve"c"and require that it be built in accordance with the plans that are furnished with that application. I just want to make sure that my understanding is consistent with the facts. Mr.Wexler said I'm raising this on application"c"and it says covered entry and steps has a rear yard of 15.08 ft.where 25 ft.is required. So,it doesn't address the corner. Mr.Davis asked what is shown on the drawing...inaudible. Mr.Wexler said it shows the corner existing. It doesn't address the corner. Mr.Wexler said that's a corner for entry and steps. He asked what's the problem with approving the first part,if you legalize the corner? Mr.Davis said you can approve two variances. Zoning Board October 24,2001 Page 25 Mr.Wexler said it's a separate application. Mr.Gunther said the basis for my comment is this is merely on the amount of information that has been provided,which is that the noise is a potential problem that might be there. It is a very small space,even with an enclosure that would reduce the setback down to 12 ft.or something,a much further incurred 10.8 ft....inaudible. Mr.Coico said I was weighing what I heard and I wish that there were an acoustical solution there. I think that this process is flawed in the way it's difficult to address the issues concerning the detriment to nearby neighbors,alternatives that are detrimental. I'm a newcomer to the Board and I fully acknowledge that a hardship would be created by the applicant if we decline this variance, having heard the majority ...inaudible. That's my opinion. I hear the community at large screaming in many ways about the Zoning Board of Appeals decisions in the past. I was frankly grasping to this in some way because of that. Not that I take a hard line on the community..inaudible,I don't,but this is really a difficult issue. I would not want to be in the Berman's position at all. At the same time,I wouldn't want to be in the Weston's position. Mr.Gunther said all we have to go on is information that's been provided. There is no position in terms of the actual impact of noise..inaudible. In the absence of any other information,we would deny the variance..inaudible. There is no other._solution that can be appropriately rendered that we would know that we have the appropriate response. Mr. Wexler said this is a residential zone. Residential zoning and the type of activity that occurs ....inaudible not air conditioning noises...inaudible. It's a totally different natural event...inaudible. Mr.Gunther said I think counsel you have a general sense of where the Board wants to go and asked if there is a conclusion in terms of which of the alternating resolutions or direction. Mr. Davis said let me try to sum up what I think I've been instructed to do,which is to draft two resolutions,one granting each variance and linking them so the approval of the first one is conditioned ...inaudible on the enclosure of the second one. The only thing that would stop me from doing that is concluding in response to Mr.Winick's question,in review of Mr.Lieberman's argument which I had not read,that the Board would not have the authority to do that because of the nature of the surveyor's error. Mr.Winick said I don't know that I would say that the outcome is quite that mechanical. I would expect to be advised of the impact of that law. Depending on what the advice is that we receive, that might change how I balance the factors and could conceivably end up with me not voting for that resolution. Mr.Gunther said if that be the case Mr.Davis,why don't you draft one that also declines the application. Mr.Davis said since you have left that in the permissive,I'm happy to. Mr.Winick asked am I right in thinking that the...interrupted. Mr.Davis said the sense of the Board is clearly to grant the application. Mr.Winick asked if we can take legal advise. We do take legal advise,but not in a public meeting. Mr.Gunther said we can call for an Executive Session to discuss this for the Board to be counseled. Mr.Davis said the open meeting law requires that you not convene with a quorum present accept in a manner and for the reasons provided by the open meetings law. It doesn't mean that I can't advise the Chairman or other members of the Board in between meetings where indeed one member of the Board can't talk to another member of the Board,but you should do the Board's business in public. There is no Zoning Board October 24,2001 Page 26 reason why I shouldn't inform the Chairman of the nature of the research that I'm doing in the interim, and take instructions from the Chairman. Mr.Winick said that might reduce the amount of drafting. Mr.Wexler said I'm in favor. Mr.Davis said I think I understand where we are. Mr.Winick said just so it's clear,because there's people here,the was a resolution that will be presented at the next meeting to be voted on at that time. Mr.Davis said it will be voted on,approved or disapproved,at the next meeting. Mr.Gunther said we will set the next meeting date. After some discussion,Ms.Roma said that the next meeting date is November 28,2001. On a motion made by Mr.Gunther,seconded by Mr.Winick,it was unanimously RESOLVED,that the Public Hearing of case#2478 be,and hereby is,adjourned to the November 28,2001 Zoning Board meeting for the purposes of legal counsel providing some research and drafting a proposed resolution for it to be voted on at that meeting. Mr.Gunther informed those present a five minute recess will be taken at this time, 10:55 p.m. The meeting reconvened at 10:25 p.m. The Secretary read the application as follows: APPLICATION NO.3-CASE 2471 Application of Fred Friedman/Ann M.Woods requesting a variance to construct a fence at the rear of the property on the premises located at 4 High Ridge Road and known on the Tax Assessment Map of the Town of Mamaroneck as Block 213,Lot 552. The rear yard fence as proposed has a height of 8.5 ft. where a maximum of 5 ft.is permitted pursuant to Section 240-52 for a rear yard fence in an R-15 Zone District. (TAPE WAS OFF BY MISTAKE) between the two sides. I don't know what else to do. Ms.Martin asked what road it is. I tried to figure it out. Ron said it's the bottom of Hickory Grove Drive when you come off of Rockland Avenue. After some discussion,Mr.Gunther asked if there is a possibility that this could have a ricochet affect on others. Mr.Friedman said only back to the highway. It's way below. It would be way over those houses and we thought of that. The houses that are below on lots 10,11 and 12,are between 40 ft.and 50 ft.below,so even if the sound hit and bounced back,it would be way over those houses. Mr.Winick said your hope is that you're going to basically create a bubble in your back yard,so that what you're really doing is throwing the sound up over your house. Zoning Board October 24,2001 Page 27 f"u\ Mr.Friedman said that's correct. Mr.Winick said if you're moving that sound anyway,you're moving it toward Mulberry. My concern is this,that if we're supposed to be evaluating the impact on you as opposed to the impact on somebody else,there's couple of things. One,is that I don't think we understand....We don't really have much to show that this is going to do what you want. I realize it maybe going up,but I don't see anything that says that this is going to be excessive. I would hate to do this,without knowing what the impact will be of dispersing that sound somewhere else. If we're moving 80 decibels onto somebody elses property,that's something that we need to consider. And thirdly,is the visual impact on your neighbors. If I owned either one of those houses and I wanted to put up the same fence,if I had to live with yours I would be quite unhappy. Mr.Friedman said except for one thing,Mr.Winick. It's a public meeting. None of my neighbors have shown up and none of my neighbors has written a letter objecting. If there's an objection to it,I'd like to hear it. The purpose of the fence is twofold. One is to take the sound out,but more than that,to absorb some of the sound. That's why they're putting in the sound deadening material to screen the two sides. Mr.Wexler asked what that sound deadening material is. Mr.Friedman said I don't know what it's called. It's stuff about this thick,it's pink,it goes in and hopefully absorbs some of the sound,also. Mr.Wexler asked if it's Styrofoam? Mr.Friedman said it's not a Styrofoam. Mr.Wexler asked if it's affected by water? Mr.Friedman said no. They're going to put copper along the top-to keep it dry,so that water doesn't get in. Mr.Coico said he agrees with Mr.Winick's comments about information. I understand that this is a real problem and I experienced what you described in looking at a house at one time. I went to the back yard and said forget it. I understand your predicament and you should try to solve it someway. This is another acoustic question,...inaudible that this proposed solution will help you,but it won't hurt your neighbors because there are all these ....inaudible stories ....inaudible bolstering these stories concerning the surprising affect of what's supposed to reduce noise on surrounding areas. Sometimes it causes a boomerang effect. I would really feel better if there were someway of getting expert testimony that tells us,yes,that we're going to reduce the noise to your property while not causing an increased noise for your neighbors. I also agree with the issue of the aesthetics of this,but I think that could be resolved with screening. Mr. Friedman said it's going to be screened. We're going to stain as opposed to paint,so it can be maintained more easily. We're doing it on both sides,so even the neighbors 50 ft.below won't complain about it. Mr.Winick said my concern is not with the neighbors below,because I don't see any screening on the plan. My concern,we were up on the deck and the steps that lead up to the deck on lot 3,and basically their view from their deck is out over that dropoff. You're proposing to put an 81/2 ft.fence smack in the middle of that field,I don't see how that could be screened. Mr.Davis asked are you suggesting there is a live area...inaudible to this property? Zoning Board October 24,2001 Page 28 Mr.Friedman said he doesn't understand how they have a right to expect to always have an unobstructed view of a....inaudible. They have the whole on their property. Mr.Winick said I think that,I'm looking at our standard here,whether a detriment to nearby properties will be created,I understand that under the zoning law that they only get a 5 ft.fence,they have no say in this. My question is,for you and counsel,if the permissible impact for us to consider there is an impact visually on the adjoining property. We've required screening case after case where we thought that there was a mass put on the property. Mr.Davis said in order to distinguish the screening question,I think it's the interference with the view. Mr.Wexler said the..inaudible is 3 ft.up and there's a 5 ft.fence there above it because...inaudible. Mr.Winick said he's thinking something else. I wouldn't want to look at an 81/2 ft.fence,period. What I think is objectionable,is not arguable. It is not the deprivation of the view,but the object itself that's being proposed. Much in the same way that if someone were to put up an addition,we think about what the impact of that is going to be on the neighbors that look out their window. Mr.Friedman said we're going to screen from the northerly side of the fence with trees. If I didn't have the fence,I planted trees and I let them grow 20 ft.high,nobody could object to that. I'm not just putting up a fence and leaving a raw fence. It's going to be screened with bushes and trees. For our sake,I don't want to look at an 8 ft.fence either,frankly. Mr.Wexler asked,150 ft.is going to be screened? Mr.Friedman said yes. Mr.Wexler asked with what kind of trees? Mr.Friedman said I don't know. I haven't gotten that far yet. Mr.Winick asked,on your side of the fence? Mr.Friedman said on our side of the fence,we will be putting up trees. If we didn't have a fence,planted trees and they grew to 15 ft...left haneine. Mr.Winick said absolutely...inaudible. Mr.Davis asked,did you consult with the..inaudible? Mr.Friedman said he spoke to at least three,including the gentleman,Ron Carpaneto,when I called and asked for help. All of them agreed that this will give me some relief. Nobody could say it will give you 18 decibels, 12 decibels. They approximated 10 decibels. Mr.Davis said 10 decibels is permitted. Mr.Winick said if that's the case,my other concern is who are we removing the sound on? It doesn't go away. It just moves. Mr.Davis said it's diminimis as it moves. Mr.Winick said sure,but there are properties on both sides of the property...inaudible. Zoning Board October 24,2001 Page 29 Mr.Friedman said there's a road behind,Highridge Road,and there are properties on both sides. The property on the westerly side is substantially lower,probably 15 ft.lower. Mr.Davis said one way to look at this procedurally is the applicant demonstrates..inaudible that's there's some...inaudible here. The applicant adheres,by introducing evidence that might not be admissible in court for obvious reasons,but nevertheless it's at least some kind of sensibility to the question and it goes to the point. The question is when the record is finished,he has no obligation to introduce evidence with respect to detriment. The Board has every right to inquire into that,but the Board also gives Public Notice. People who are interested have an incentive to come and establish that there is a detriment to them. You've got to decide whether you're satisfied with how that balances..inaudible. Mr.Friedman said whatever good that does Mr.Winick,if I demolish my home now and fill in the pool, I would have a right to build a tall structure. I could have a very nice one-family house that's taller ..inaudible. If I could do that,then...left benzine. Mr.Winick said that doesn't help you much on your application. Mr.Wexler said it still would be helpful if you presented a landscape plan to show us,if you screened that fence what you would plant..inaudible. Mr. Friedman said it depends on what trees are available. I'm going to get evergreens that will be approximately 5 ft. to 6 ft. high. Beyond that they become prohibitive in cost. They'll be planted approximately 3 ft.apart and they'll mature,grow and screen it. It will not be screened the day after it's finish. Mr.Wexler asked how far apart? Mr.Friedman said I'm told about 3 ft.to 4 ft.apart is what they plant. Mr.Wexler asked,in one row? Mr. Friedman said I haven't gotten to that. I have trouble getting him to cut the grass properly. Remember,Mr.Wexler,we want it to look nice. We're going to be looking at it more than anybody else. Mr.Wexler asked,how did you make the transition from the low level to the upper level? Mr.Friedman said the south side is lower,the house is upper. He asked Mr.Wexler if he's talking about behind the fence. Ms.Martin said down to that lower,patio area. Mr.Wexler said there's an abrupt change in height. How do you make that transition? Mr.Friedman said the fence continues. Mr.Wexler asked,at the same height? Mr.Friedman said no,no,no. It follows the contour of the land. Mr.Wexler reiterated,there will be an abrupt change in the height. Mr. Friedman said there won't be an abrupt change at all. From the way it looks, there might be a difference of 6 inches at that point. What happens is the posts go down,you follow the land. Zoning Board October 24,2001 Page 30 Mr.Gunther said the panels are all horizontal and there are steps as the grade changes. Mr.Friedman said that's correct. It doesn't go straight across. Mr.Winick said there are posts on your property now. Mr.Friedman said there is a miscommunication. I thought Steve Garcia got a permit,he thought I got a permit and nobody got a permit. Mr.Winick said so those are the problems,what was done,what's intended. Mr.Gunther asked Mr.Wexler if there are any other questions. There being none,Mr.Gunther thanked Mr.Friedman. Mr.Gunther asked if there are any other questions or comments from the public. Michael Riad, of 187 Hickory Grove Drive, addressed the Board. The first thing I'd like to say is sympathized with you extremely. I live right below you,I hear the highway noises. There are several nights where I could keep...inaudible as well. There are some things that I am concerned about with this fence. I was a little shocked to see posts so high put up,without ever being asked or shown anything or told about this. I've spent nineteen years of my life in this house. We owned the house since 1975. I have a dog that spends a lot of time in the yard. These are my views and this is what I see every day. I was a little concerned about what this was going to look like,what this obstruction was and why it was being put in. I was just concerned about the safety of it. Building this fence is going to be knocking rocks loose and sending them down into my yard. I understand your position and I hope that something can be done to help alleviate the noise problem. I know that they have started building a Town barrier on I-95, but we were told it was going to connect to the one that's at the duck pond that has yet to be finished. I don't know if that's going to have any significant difference or not. I know your house is much higher than ours. We have not noticed any difference,as far as the sound improving. It does keep us up at night sometimes,but it's part of living where we live. Mr.Riad said also on a separate issue,the wall is pretty much unusable land. It's a cliff. It's a beautiful cliff and it's part of the reason why my parents bought the house in the first place back in'75. I don't remember who the owner was before Mr.Friedman,but somebody decided to put a fence down the wall and a little 4 ft.segment just making a line on it if you can imagine just goes down the wall and goes 4 ft.to the right,basically to mark their property line which has been an eyesore. It's just a metal fence on this cliff that serves no purpose, other than to mark a property line. That's something that has just bothered me. I don't know if one thing has to do with the other,but I'm just feeling a little concerned. All of us as far as the neighbors on Hickory Grove Drive,across the street,and on both sides of me and down the street,we all have a pretty good relationship with each other. It does seem that I've been there longer than anyone else. I'm concerned about these issues and just hope that they will be addressed. I have no problem dealing with you,one on one,if we ever wanted to call and talk to each other,that's totally fine. I just want to make sure that there is consideration for the other people who are living around. This is 8 ft.of my sky,which is going to be taken up. I understand that. It is going to be serving a purpose for them,but at the same time,this is what I have to see every day. They're going to have trees on their side,but we're not going to have them on our side. I just wanted to make a note of that and bring it to your attention. Mr.Friedman said with regard to rocks and stones,this is all being built on the part that is not water. The rocks and stones are on the other side, on the southerly side of the fence. They're not going to go anywhere near there. This is on the northerly side,so there are no rocks,there are no stones and there's a natural barrier that comes up on it,2 ft.or something,so that takes care of that. Mr.Friedman asked,is this what you're talking about,the chain link fence? Zoning Board October 24,2001 Page 31 Mr.Riad said yes. Mr.Friedman said I wasn't even aware it was there. Take it down. Mr.Riad said I will be happy to take it down. Mr.Friedman said so that's the chain link fence on the southerly end of the property in the middle,that little piece. I have no idea who did it,when it was done,take it down,be my guest. I'll send you a letter. I couldn't care less. I was shocked to find it,because I never go down there. Mr.Riad said it went up when we were kids. It went up many,many years ago. We had a swing set there and one day some guy just walked into our yard and said this is his property...inaudible and he was putting a fence. It's going to be stained on both sides. Mr.Gunther asked if there were any other questions or comments on this application. Mr.Wexler asked if there is any possibility of screening this from the other side. Mr.Coico said you seemed to have positioned it so that it's right at the cliff head,I didn't see it. Mr.Friedman said it's back from the cliff. Mr.Coico said couldn't you do what you normally do. Mr. Friedman said no,because there's not enough soil and that whole side,if you take a look at the survey,the southerly side of where the fence is all full of trees. It's not just a barren piece of land. It's loaded with trees. From April to October,you see nothing but trees. In the wintertime,yes it gets bare, but the trees are still there. Mr.Gunther asked Ms.Roma if we have any pictures. Mr.Friedman said,yes there are pictures there. They're not very useful. Mr.Wexler asked if all the posts are in. Mr.Friedman said yes,all the posts are in. Mr.Wexler said so whatever rocks are going to fall,there stuck with it. Mr.Friedman said it's all on this side. There are no rocks on that side. Mr.Gunther asked Mr.Carpaneto if the plans include detail as to what is being put in between the fence panels. Mr.Carpaneto said I don't think it would be necessary. If they wanted to add that,it's fine. Mr.Gunther asked,you don't need to have a record of something being...inaudible. Mr.Carpaneto said no,I don't think so if that's what they're going to do. Mr.Friedman said we're trying to find the best material. Mr.Carpaneto said I can go with the architect and once they've decided,between the architect and myself we just put a note on the plan. Zoning Board October 24,2001 Page 32 Mr.Gunther said speaking for,the Board,I don't know if there's going to be screening put on there. I think the Board would like to know what screening it's going to be,so that we are well aware of what the proposal will be and they build what. Mr.Friedman said we're going to screen it with evergreens. What kind I can't tell you. I don't know one evergreen from another. Just something that will stay green all year. Mr.Gunther said with regard to the screening,the Board ought to indicate a condition..inaudible. Mr.Wexler said he said he will provide 5 ft.evergreens. That's the height from the top of the ball, approximately 3 ft.to 4 ft.on center,along the entire length of the fence on his side. It doesn't address the concerns of drainage. Mr.Friedman said he's going to stain the other side,so it will be attractive. Mr.Winick said when I went to look at them,I was not able to locate the posts on Monroe. I think now that I know an address,I might want to go back and take a look at the back yard to examine it,because the posts are up. I also don't see why. Mr.Gunther said it's so green now,even though they won't see it now until all the leaves fall. Mr.Friedman said when the leaves are in you can't...inaudible them. From your yard you can,but from the street you can't...inaudible. When I first found out about this,I did go up to try to talk to,I don't know who it was at the time,and I called to him. It was just something that had to be done. There were people working up there putting the posts in. I apologized also to find out what the rights were as { • neighbors and what we had to notify each other to know about. Somebody from,I can't remember who, came,met me at my house and didn't even bother coming into my back yard,because you can see this from the street inaudible. Mr.Gunther asked would you rather wait until...interrupted. Mr.Wexler said no,let's do this. Mr.Gunther said I think,given the sense of the Board at this point,there are a couple of issues. One is they want to see a screening plan and want to take another look at what you are proposing,before acting on the application. Ms.Martin said the Board should get a report in writing. No disrespect,but you have given us an oral report about some of your conversations,but we could get an expert to tell me that by putting up this fence it reduces..inaudible. Right now,I see a hypothetical situation,a reasonable one,but a hypothetical one. I would feel more comfortable inaudible. Mr.Coico said I agree,but in the same vain I would also feel more comfortable if that same expert would give us firsthand evidence that while reducing journalist(?)problems,we don't create notice problems for others. Mr.Winick said I would take to heart Mr.Davis'statement before,that the applicant doesn't have the burden to come forward with evidence about detrimental impact on the neighbors. Since we as a Board ...inaudible we add to that information and that's a tradition to ourselves. I don't think we should be doing...inaudible. Mr.Friedman said I didn't mean to say that you can't ask. Mr.Davis said it's a difficult problem,but if you think you're at the line..left hanging. Zoning Board October 24,2001 Page 33 Mr.Martin said I'm weighing the benefit to the applicant versus the detriment. I see a detriment,because there's a circle of neighbors on this side potentially,I couldn't find out what the road was below,so right now there is to me a significant detriment in creating this structure. If his benefit outweighs that,then I'd like to know that,but I'm not convinced right now. Mr.Winick said visually or acoustically? Ms.Martin said visually,because I don't have an acoustical report. Mr.Davis said but asking him to bring in evidence about what the acoustic affects will be on neighbors is....left hangine. Ms. Martin said I'm asking for him to bring in evidence about what the acoustic affect is on the ...inaudible. If he has a huge benefit,we just went through this about ten minutes ago. Mr.Davis said I thought you were asking for something else. Mr.Friedman said I will try to get that for you,Ms.Martin,see if the engineer will give me his best understanding of what the benefit will be. Again,please let me remind you,meaning no disrespect,it's a public meeting,published and notices are specifically mailed to the neighbors. If they elect not to object, why does that become a problem? I understand your obligation. Ms.Martin said we have an obligation...interrupted. Mr.Friedman said if they don't object,do you have an obligation? Ms.Martin said yes. Mr.Friedman said then that answers..interrupted. Mr.Davis said at some point,the record has to be closed and if the evidence you have from him is that it provides him with a real benefit and there is no evidence in the record with respect to detriment,that's the record to deal with at that point. Mr.Winick said it seems to me Mr.Friedman doesn't have the obligation and perhaps doesn't have the inclination to help him produce contrary evidence. The question is, does the Board want or ask for submission of acoustical experts to talk about where that sound may go or not? There's really a question of whether we want to take this burden among ourselves. Mr.Davis said I think it's reasonable,as long as you're asking him to demonstrate the benefit,to ask him whether his expert is willing to say,if anything,about detriment. Maybe,therefore,it's not willing or not able without doing some work beyond what's..inaudible. Mr.Winick said you know what's cynical about experts,once you say what your experts say rather than what we would...inaudible. Mr.Friedman said he really has mixed feelings and believes that your expert would say the same thing, that there will be a substantial benefit. However,the other side of me says maybe you ought to let them do it and not spend your own money. This fence is going to cost me in the neighborhood of$12,000.or $14,000.when it's done. Mr.Winick said there are two different things here. One is whether or not you want to present acoustic evidence from an expert or some other source. It can be in the form of a letter,so that the benefit is to Zoning Board October 24,2001 Page 34 you. The other issue is whether or not you want to present evidence about any detriment to any neighboring properties or lack of detriment. Mr.Friedman said,Mr.Winick,I can't tell you what he will say about that. I've never discussed it. I did discuss that there would be a benefit. A benefit was approximated to me. He said that you might get as much as a 10 decibel benefit,and that's a huge benefit to me. Mr.Davis said and the request to you is,can you get him to say it in writing? We're not asking you to be any more precise than he can or especially do and to the extent that he could also say something about whether ameliorating your problem will result in a detriment to your neighbors. If you can say something about that fine. If not,just write his letter. Mr.Friedman asked,are you then,Mr. Chairman,adjourning this to the next meeting,November 28, 2001. Mr.Gunther said yes. Mr.Wexler asked Mr.Riad his address. Mr.Riad said it's 187 Hickory Grove Drive. I just want to say that I don't want to have a problem with this fence going up. It's going to solve their problem and it's not going to by an eyesore for others. Granted I wish that the....inaudible would just go away and they didn't have to put up a fence,but I'll be happy that someone in our neighborhood can get away with...inaudible.That's one of the known reasons why we're considering moving out. It's just the noise. Other than that,it's an absolutely beautiful neighborhood. The neighbors are all great and...inaudible are the only things that I'm concerned about. Mr.Gunther thanked Mr.Riad. On a motion made by Mr.Gunther,seconded by Mr.Wexler,it was unanimously RESOLVED,that the Public Hearing of case#2471 be,and hereby is,adjourned to the November 28,2001 Zoning Board meeting. The Secretary read the application as follows: APPLICATION NO.4-CASE 2472 Application of Michael D. and Carla Mathias requesting a variance to construct a tennis court on the premises located at 5 Cornell Street and known on the Tax Assessment Map of the Town of Mamaroneck as Block 201,Lot 205. The tennis court as proposed is not within the rear one-third of the property as required pursuant to Section 240-21C(7)(a);and further, the fence has a total height of 10 ft.where a maximum of 8 ft.is permitted pursuant to Section 240-21C(7)(e)for a tennis court fence in an R-30 Zone District. Ron Tetelman,a partner in the firm of Eberlin and Eberlin in New Rochelle,engineers and landscape architects,appeared to address the Board. Mr.Tetelman said I'm a landscape architect. I think the plan is pretty clear. We'd like to relocate the tennis court 90 degrees,to run it north and south,which is the correct orientation for a tennis court. We're going to redo the surface from an asphalt type to a har-tru, which is a softer surface,as Mr.Mathias'knees are not as good as they use to be. That's basically what we'd like to do. Mr.Wexler asked what the reason is for rotating it. Zoning Board October 24,2001 Page 35 Mr. Tetelman said proper orientation to play. It's best to play north/south rather than the east/west orientation it is now. Mr.Winick asked how long that tennis court has been there. Mr.Tetelman said 15 years. Ms.Martin said,can you tell me the situation of the house next door? Mr.Tetelman said I think directly next door,Mr.Mathias owns that piece of property. There's a field right next to it. The adjacent house is further away,I do not know. Ms.Martin said she is talking about the house that's right next door to where the tennis court will be. It looks like it's under a lot of construction. Mr.Tetelman said no,I don't know anything about that. Ms.Martin said what concerns me again is the impact that this relocated court will have on the people in that house. You're bringing the tennis court down directly under a structure that's very close. I don't know if it's a side yard guide. Mr.Winick said one of the impacts of the permitted,the forcing of those structures back into the one-third of the property,is to keep them behind the houses that are adjoining the property. My concern,because I was standing there,is to see where you oriented the tennis court because I'm a tennis player. Certainly we have east/west tennis courts where we play and it's not a lot of fun,but what you're doing. The applicants will get a wonderful free piece of property facing that golf course at the back third of the property,but what you've done is you've completely reoriented that,so you've intruded into where the house is next door. Where the house will be renovated, there are windows which look out in the bedroom. You're putting the tennis court in your neighbor's face, while giving the back third of the property a pretty..inaudible for use. I think the impact is kind of distant here. Mr.Wexler asked if they were notified when this was started. Mr.Winick said the house is unoccupied. Mr.Carpaneto said that 7 Cornell is under construction. Ms.Martin said she's talking about the house right at the corner,literally at the intersection of Weaver and Cornell,which is mostly in the Town of Scarsdale. Mr.Carpaneto said that's not us. Ms.Martin said she realizes that. We don't have to notice the people about this? Mr.Carpaneto said we notice the Town of Scarsdale. Ms.Martin said nobody lives there. It's under construction. Mr.Wexler said reconstruction. Ms. Martin said reconstruction, but it impacts very strongly on it. We must have some kind of responsibility to that. Just because it's in the Town of Scarsdale,we can say well...inaudible. Zoning Board October 24,2001 Page 36 Mr. Carpaneto said that's how we notice it though. Once it goes to another town,it's the town that's noticed. The Town of Scarsdale was noticed for this application. As a matter of fact,I think I send Scarsdale,New Rochelle,the Village of Larchmont,the Village of Mamaroneck automatically for every variance,just so we're covered. Mr.Gunther asked if there are any other questions from Board members. Mr.Wexler asked how do we proceed? Mr.Gunther said first,are there any comments from the public on this application. There was no response. He asked is there a sense of where you want to go with this? Ms.Martin said this isn't to me a situation. I play tennis too. Mr.Winick said I want to deny it. Ms.Martin said this is why they put it in the back third of the lot,so it's not right on his property,the window. The fact is that the house now is vacant,but it's not going to vacant long. Somebody is going to want to live there and it's going to really impact on their living conditions. Angelo Pugliesi,one of the owners of inaudible, acknowledged his presence. Ms.Martin said but you're asking us to change something. Right now where it's located is where it's legally able to be located,so I'm not going to talk about what the conditions are now. You're asking us to change it and to grant a variance to where it's not legally...interrupted. Mr.Pugliesi said that the fence will be lower on that side,also. It won't be 10 ft. Mr.Martin said you're talking about a 10 ft.fence. We didn't even discuss the height. Mr.Wexler said it also presents a much longer elevation of a fence to the neighbor. It's 6 ft.from the short side. Mr.Winick said where the tennis court is oriented now,the neighbor doesn't see the fence. There's trees, there's screening and the highest part of the neighbor's house is exactly in the middle third of the property where this tennis court will extend,if this variance is granted. I have a view of the tennis court from my house....inaudible. Mr.Wexler asked what bearing does it have on this tennis court in this application,how it's straddled on the side yard. Mr.Carpaneto said none really. We have the majority of it,so we would have to pull the file on it,at which time a discussion ensued. Ms.Martin said that house seems atrocious. In terms about the grading,it's fairly out on the...inaudible, but the lawn slopes down toward the golf course. Mr.Tetelman said it will be a little bit down and cut and fill. I think we've got a 3 ft.to 4 ft.rise,so we're going to situate and grade the course so that we cut out on one side and fill on the other,so we won't have to take away much material. That's how you achieve the balance in grading the side. Mr.Wexler said so you're 10 ft.fence facing Cornell,will look like an 8 ft.fence. Mr.Tetelman said possibly from that street,yes. • Zoning Board October 24,2001 Page 37 Mr.Wexler asked,are you planning on putting a retaining wall there or are you going to grade it back? Mr.Tetelman said I think we'll grade it. There's enough for a reasonable grade. The court area is flat and the 10 ft.fence is on the perimeter of the court. A 10 ft.fence,is a 10 ft.fence. Mr.Wexler asked,what happens on the other side? Mr.Tetelman asked to the bottom of the court? Mr.Wexler said no,on the other side of the house. After some discussion,Mr.Tetelman said with the side you might be constrained with the natural pieces there. We have some nice trees and stuff. On motion of Mr. Gunther, seconded by Mr. Winick, the following resolution was proposed and ADOPTED unanimously,5-0. 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, Michael D. and Carla Mathias have submitted an application to the Building Inspector,together with plans to construct a tennis court on the premises located at 5 Cornell Street and known on the Tax Assessment Map of the Town of Mamaroneck as Block 201,Lot 205. The tennis court as proposed is not within the rear one-third of the property as required pursuant to Section 240-21C(7)(a); and further,the fence has a total height of 10 ft.where a maximum of 8 ft.is permitted pursuant to Section 240-21C(7)(e)for a tennis court fence in an R-30 Zone District;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 240-21C(7)(a)and Section 240-21C(7)(e);and WHEREAS,Michael D.and Carla Mathias 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 weighing the benefit to the applicant against the detriment to the health,safety and welfare of the neighborhood or community if the variance were to be granted, that the variance be DENIED. In reaching this conclusion, the Board considered the following factors: A. The applicant's representative expressed two(2)reasons for the variance. One is a reconstruction of the court with different material that will be easier on the applicant's knees. That obviously can be done,no matter where the court is constructed. The court can be reconstructed in its present location and that goal achieved. Zoning Board October 24,2001 Page 38 B. The other goal expressed by the applicant's representative was the change in orientation of the court to north/south,which is certainly advantageous to a tennis player. However, that benefit to the applicant is outweighed by the detriment to the adjoining property,as explained below. C. The purpose of the zoning requirements that requires a variance here,is to keep structures in the back third of the property. The way the house is sited with the front and rear yard,the affect of that is to push those structures back past where they impact the adjoining properties. The application here would simply undo that and move part of the tennis court on a line with the adjoining property. The adjoining property has a sort of a tower structure with several large windows which overlook where this tennis court would go. The detriment to the adjoining property will outweigh the benefit to the applicant,because there would be too little distance between the tennis court and the adjacent property. D. The variance is quite substantial. It's going to pull that tennis court all the way up about two-thirds of the way into the property. E. This difficulty is not self-created. The court is fifteen/sixteen years old. It's been there for a while. NOW,THEREFORE,BE IT RESOLVED,that the subject application be and the same is DENIED. This decision shall be filed with the Town Clerk as provided in Section 267-a(2)of the Town Law. Mr.Gunther asked if anyone was present for application number 5,as listed below. No one answered. A gentleman in the audience said he was present for this case,but did not want to speak. He was just present to learn about the process for a future application. APPLICATION NO.5-CASE 2473 Application of Mr.&Mrs.Stephen Standor requesting a variance to construct a rear wood deck on the premises located at 72 Vine Road and known on the Tax Assessment Map of the Town of Mamaroneck as Block 109,Lot 216. The rear wood deck as proposed has a rear yard of 14 ft.where 25 ft.is required pursuant to Section 240-38B(3);and further, the deck increases the extent by which the building is nonconforming pursuant to Section 240-69 for a residence in an R-7.5 Zone District. The Secretary read the application as follows: APPLICATION NO.6-CASE 2474 Application of Mr.&Mrs.James Simone requesting a variance to legalize the conversion of a screened porch to habitable space on the premises located at 10 Homer Avenue and known on the Tax Assessment Map of the Town of Mamaroneck as Block 120,Lot 37. The existing converted porch has a side yard of 7.77 ft.where 8 ft. is permitted pursuant to Section 240-38B(2)a;and further, the porch increases the extent by which the building is nonconforming pursuant to Section 240-69 for residence in an R-6 Zone District. James Simone, of 10 Homer Avenue, addressed the Board. He thanked the Board for hearing this application. He said his architect,Michael Csenge,will do the presentation,but first he would like to submit a letter to the Board from his seven(7)neighbors supporting this application,marked exhibit#1. Zoning Board October 24,2001 Page 39 Mike Csenge,architect,said we have an existing structure that was built some time ago. The actual terrace that sits underneath this was built at the time the original house was built. There's a subsequent • application,had a building permit to put a roof over it and to enclose it with a screened enclosure. The screens have been taken out,real windows have been put in. The arch is actually in the original drawings from the original house. It's been there that long. There is the impact to the neighbors of the neighborhood. This has always been there,and it will be probably more of an impact in taking it out. It will be more of a disruption in removing it. The owner,in dealing with his young daughters and giving them a little additional room to play in the house,cleaned it,up,renovated it,and put heat in it for them. It previously had not been heated. It still has skylights the way it was built back years ago,when the original porch was put on. Self-created,yes I guess you could say that,but it was already there. They just renovated it. Mr.Martin said it was much more in Dr. Simone's need of improvement,because it was an unheated screened porch. Mr.Csenge said it was an unheated,covered,screened porch. It had a roof on it and it had skylights on it. These are from Ron Carpaneto's files. Mr.Wexler asked when was it. Mr.Csenge said it doesn't even have a date on it,but they're reverse printed so they go back a while. Ms.Martin said there will be no additional change to what's there. Mr.Csenge said there is no change to the original footprint of the house. Ms.Martin asked,you don't plan to do additional alterations? Mr.Csenge said right. We're just legalizing the conversion. The variance is for.23 inches. After some discussion,Mr. Gunther asked if there were any other questions from the public on this application. There being none, on motion of Mr. Gunther, seconded by Ms. Martin, the following resolution was proposed and ADOPTED unanimously,5-0. 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.Coico,seconded by Ms.Martin,the following resolution was ADOPTED: WHEREAS,Mr.&Mrs.James Simone have submitted an application to the Building Inspector, together with plans to legalize the conversion of a screened porch to habitable space on the premises located at 10 Homer Avenue and known on the Tax Assessment Map of the Town of Mamaroneck as Block 120, Lot 37. The existing converted porch has a side yard of 7.77 ft.where 8 ft.is permitted pursuant to Section 240-38B(2)a;and further,the porch increases the extent by which the building is nonconforming pursuant to Section 240-69 for residence in an R-6 Zone District;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 240-38B(2)a and Section 240-69;and WHEREAS,Mr.&Mrs.James Simone submitted an application for a variance to this Board for the reasons set forth in such application;and Zoning Board October 24,2001 Page 40 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. No undesirable change will be produced in the character of the neighborhood, or a detriment to nearby properties created. This is an existing condition and the applicant has provided testimony from neighbors all supporting the presentation. B. There is no reasonable alternative that wouldn't involve the necessity of an area variance. It's a continuous condition that's been there without complaints for many,many years. C. There will be no adverse impact on the physical or environmental conditions in the neighborhood. D. This is not a self-created difficulty. 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. 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 1T 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. Zoning Board October 24,2001 Page 41 The Secretary read the application as follows: APPLICATION NO.7-CASE 2475 Application of David Katz and Cecelia Absher requesting a variance to construct a second floor bay window and to extend a first floor on the premises located at 1 Knollwood Drive and known on the Tax Assessment Map of the Town of Mamaroneck as Block 109,Lot 69. The bay window as proposed has a rear yard of 22 ft.where 25 ft.is required pursuant to Section 240-37B(3);the breakfast area extension as proposed has a rear yard of+-22.5 ft.where 25 ft.is required pursuant to Section 240-37B(3);and further,the addition increases the extent by which the building is nonconforming pursuant to Section 240-69 for a residence in an R-10 Zone District. Chris Powell,of 231 West 16th Street,New York,New York,the architect,addressed the Board. Mr. Powell said this application is for a project that is actually under construction and is a variance that you granted earlier this year. I made it pretty clear to the owner that anything that we wanted to add or do should all be on one application and of course they came back later on,down the line,and wanted to make things a little bit bigger and make a couple of changes. Basically,what I am doing is filling in an area of the house,this is on the first floor where the breakfast room is,that is an indentation and I'm expanding the breakfast room out into the same space as the rest of the wall of the back of the house. That's one aspect of the application. The other is to put a bay window atop that first floor roof that was already granted a variance and has been built there. That's really all there is to it. Ms.Martin said originally you need a variance for a bay window,simply that it's an alteration to the plan that was approved. Mr.Powell said yes. Ms.Martin said if someone were to put a bay window in,would they need a variance? Mr.Carpaneto said if they were in the setback,yes. Mr.Winick said at one point in this application it also talks about the front porch. It's on the application form. On the description of the project,there's three items. I noticed one that hasn't been noticed,I think. I don't want to make problems for anybody,but it doesn't seems like..interrupted. Mr.Powell said you are correct and I want to address that. Mr.Powell said I didn't notice that when I read the notice. I didn't catch that it hadn't been put into the notice part,but that is part of this application as well. I thought I would just get to that after we talked about these things first,because it's the other side of the house. Mr.Carpaneto said,but it hasn't been noticed. After some discussion,Mr.Powell asked do you want to talk about that part now,or shall we talk about the back which has been...left hanging. Mr.Wexler said you've only been noticed for the back. Mr.Powell said I've described what the variance is for the two additional aspects of the rear of the house. Mr.Gunther asked,when you say a line,what do you mean by a line? Ms.Roma reminded the Board that the meeting was being taped and if what is being said is to be put on the record you have to tell us. Zoning Board October 24,2001 Page 42 Mr.Gunther said Mr.Powell is pointing to the drawing to show exactly where the addition will occur. Mr.Gunther asked about the window on the second floor. Mr.Powell said the existing structure...inaudible,it's easier to see on the elevation. That was the part that was already granted. The owner wanted to push out in that little space 2 ft.more and I said it was very important to keep those two spaces in line for the balance on the house. It's a compromise that I sort of forced him to do that would not increase the mass of..inaudible. Mr.Wexler said it appears that the..inaudible goes to the front also. Do we keep this agenda item open to next month and renotice it as part of this application,so we can hear everything next month? Mr.Powell said I have a problem with that,because we're under construction and a lot of time. Mr.Wexler said I don't think we should listen to this problem,if he's taken any action on it. Mr.Davis said you can't even properly make a record of it in court. Mr.Wexler said if we make it a vote on the rear two,you have to then file a separate application. Mr.Powell said I actually have a proposal that I think will work. Mr.Winick asked counsel can we vote these two and still keep the application open,if we renotice the third thing that's supposed to be required? Mr.Davis said I don't know of any rule of law that governs this situation,but I don't see why not,since the application covered all three. Mr.Winick said that would just require it be noticed. Mr.Davis said it's not the neatest way of proceeding. You said you had a proposal that covered this? Mr.Powell said basically let me describe the front. It's very simple. It's two posts coming down onto an existing porch with a little vaulted roof that provides a little shelter in the front. If I push the posts back a foot,then I'm within 30 ft.and it doesn't need a variance,which is what I'm going to do because I'm not going to...left han2ine. Mr.Carpaneto said correct,we're not even going to address that now. Mr.Powell said,so I say we just don't address the front and then you don't have to deal with it. Mr.Carpaneto said you're going to revise plans and...inaudible another 30 ft.on line. Ms.Martin said so you're making the porch narrower? Mr.Powell said there is no porch. There is a flagstone stoop. I'm going to withdraw that and I'm going to just move my four posts back. Mr.Wexler asked does the canopy intrude into their...inaudible? Mr.Winick said 2 ft. Mr.Powell said I'll just treat it as an overhang. Zoning Board October 24,2001 Page 43 Mr.Carpaneto asked Mr.Powell how deep the protrusion is from the house. Mr.Powell said it is about,from the lower face of the house,2.9 ft.and from the upper face of the house, because the upper face of the house overhangs about 1'h ft.,it's really only about 2'h ft.or 3 ft.beyond the upper face of the house. Mr.Carpaneto said push it back and put in a revised plan of 30 plus feet. Mr.Powell said I'll push the posts back and it will be an overhang. Mr.Wexler said why did you put in a trellis in the back off the new extension that was approved? Mr. Powell said the trellis is indicated as what is the 22'h ft.where 25 ft. is required. That is the dimension to the posts. You can see the little dot on the survey. The actual extension of the breakfast room itself is even a little further back than that. I've dimensioned it to the trellis,the posts of the trellis. Mr.Wexler said and you give a plus or minus. He asked,how did you arrive at a plus or minus,because of the rear yard of 22 ft.? He said 22 ft.goes to second floor bays. After some discussion,Mr.Carpaneto said we've done plus or minus before. We're talking about 22 ft. here,22 ft. Mr.Wexler said but that goes to the bay. Mr.Carpaneto said that's the closer dimension anyway. Mr.Gunther asked,can we indicate 22.5..inaudible? After further discussion,Mr.Carpaneto said we're talking about within a little bit. Mr.Davis said you would give 3 inches whether or not it..inaudible. Mr. Carpaneto said if somebody specifically said that that was going to come in at 22 ft.5 inches and that's what is specified on the application...interrupted. Mr.Davis said but no one should ever say that. Mr.Carpaneto said I'm surprised that it's the first time you've noticed plus or minus on these applications. There have been many. Mr.Powell said I've always put it in as plus or minus,because I'm not a surveyor. Mr.Wexler said but I never,to my recollection,approved a variance without...inaudible. It might come in this way,but we tie down the numbers. After further discussion,Ms.Martin said why don't we give him a greater number and give him a little more leeway. Mr.Powell said I'm comfortable with 22.5 ft. It's very close to what it's going to be. I'll make sure it's 22.5 ft. Mr.Wexler said,it's not built yet. Mr.Powell said no. • Zoning Board October 24,2001 Page 44 On motion of Mr. Gunther, seconded by Ms. Martin, the following resolution was proposed and ADOPTED unanimously,5-0. 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.Martin,the following resolution was ADOPTED: WHEREAS, David Katz and Cecelia Absher have submitted an application to the Building Inspector,together with plans to construct a second floor bay window and to extend a first floor on the premises located at 1 Knollwood Drive and known on the Tax Assessment Map of the Town of Mamaroneck as Block 109,Lot 69. The bay window as proposed has a rear yard of 22 ft.where 25 ft. is required pursuant to Section 240-37B(3);the breakfast area extension as proposed has a rear yard of+- 22.5 ft.where 25 ft.is required pursuant to Section 240-37B(3);and further,the addition increases the extent by which the building is nonconforming pursuant to Section 240-69 for a residence in an R-10 Zone District;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 240-37B(3)and Section 240-69;and WHEREAS,David Katz and Cecelia Absher 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. There will be no detriment or undesirable change produced in the community. The existing rear wall of the house as it presently exists,and the extension of the first floor into that area,will lie in the same line and therefore will be no closer to the rear property line than the house presently exists. B. It is the desire of the applicant to make their breakfast area larger and the master bedroom larger. It cannot be achieved in any other manner. C. Given the fact that the house presently is 15 ft.from the rear property line and the new construction requested is 22.5 ft.,it is not substantial given the fact that the house presently is much closer to the property line. D. This is in keeping with the homes that are in that community,and will not have any adverse affect on the physical or environmental conditions in the neighborhood or district. E. Since this house is under construction and given the cycle of the construction activity at this point in time,this was self-created. But under the circumstances, we do not give that factor any weight. Zoning Board October 24,2001 Page 45 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. The Secretary read the application as follows: APPLICATION NO.8-CASE 2476 Application of Richard Bernstein requesting a variance to construct a family area addition to the existing kitchen on the premises located at 24 Winged Foot Drive and known on the Tax Assessment Map of the Town of Mamaroneck as Block 204,Lot 310. The addition as proposed has a rear yard of 33.23 ft.where 40 ft.is required pursuant to Section 240-35B(3)for a residence in an R-20 Zone District. Rick Bernstein appeared to address the Board and asked if he could pass this out first. Mr.Bernstein said they are letters from neighbors and a tax assessment map,marked exhibit#1. Mr.Bernstein said he lives at 24 Winged Foot Drive and comes before the Board tonight to request a variance that will allow me to construct a modest addition in which only 58 sq.ft.of the proposed 232 sq.ft.is beyond the required rear building setback line. The addition is to contain a single room,which we've elected to call a family area. The family area will be open to my kitchen and will provide a space in which my three small children can do such things as play,homework and be supervised while my wife and I are involved in kitchen activities. The family area will provide an immediate and long-term benefit to our family. In making your determination,I ask that you take the following points into consideration. Attached,which I just passed out,is a packet that includes a tax assessment map as well as letters from three of my neighbors,our next door neighbor,the Landis family at 26 Winged Foot Drive,the Strauss family at 22 Winged Foot Drive, and the Delehanty family who live across the street from us at 25 Winged Foot Drive. Mr.Bernstein said in reading these letter,I believe it's evident that my most immediate neighbors voice no objection with the modifications I propose. Zoning Board October 24,2001 Page 46 Mr.Bernstein said if anything,we believe that these plans will provide a desirable change in the character of the neighborhood. I'll be the first to admit that the rear elevation of our home is not the most attractive. Simply put it's a flat surface, there are no lines,there is no texture,no design,no detail work. The addition we are proposing will break up the boxy shape of our home with an element of design,it will provide a sense of texture with the brick facade and will compliment the front and side elevations and from an architectural standpoint will be consistent with the style and period of our home. Combined with the other improvements we plan to make,which include adding a roof line to the second floor,building a new deck with brick piers,painting the top portion of the home a slightly (")shade which will minimize the appearance of the floor. We are proud of our neighborhood and our home. It is our desire to make it as attractive as possible from all vantage points. Mr. Bernstein said when we moved into this home six years ago, our house was the eyesore of the neighborhood. With the plans I have in front of you tonight,in addition to plans for improving the front elevation,we hope to bring only a positive affect on our neighbors,our neighborhood and for everyone who travels on Winged Foot Drive or walks behind our home on the Leatherstocking Trail. Because of the proximity of the kitchen in relation to our home,it's really not feasible for us to achieve our needs without a variance. Moving the kitchen to the other side of our home which does have a greater setback area,would,one,be quite offensive and second,would create a very illogical layout that would not be very functional. Mr.Bernstein said the modification requested is for a relatively small space. The area protruding into the setback is only 58 sq.ft. This is approximately 1%of the total rear yard setback of 5,761 sq.ft. The furthest distance in the non-compliant area protrudes into the setback of 6.77 ft.,after which the protrusion decreases as you traverse the outer perimeter of the proposed modification. Mr.Bernstein said please let me emphasize that the modification is only one story. It's the minimal space necessary to achieve our needs. The modification does not extend across the entire rear of the home,but just one small portion of the house. At one time,we did considering adding a mudroom which would have extended to the back right corner of the house closest to the Landis home,but the decision was to be the least intrusive as possible and utilize the modification you have in front of you tonight to also serve this purpose. Mr.Bernstein said the closest point of the modification from our rear property line is 33 ft. On the attached tax assessment map,I have depicted the walking path in the Leatherstocking Trail with a black line. At no point is that path any closer than 55 ft.to our property line,which means that there would be a minimum distance of 88 ft.from the path to the corner of the modification. There is also a significant drop in the grade between my house and the walking path. A person standing on the path is approximately 12 ft.below the base of our house,plus the many trees and brush between the path and property line camouflage our home from anyone using the Leatherstocking Trail. For these reasons,I believe that the proposed modification will not have an adverse affect or impact on the physical or environmental conditions in the neighborhood. Mr.Bernstein said,is the alleged difficulty self-created? That's a good question. When this house was built the decision was made to position it roughly parallel to the street and in line with the homes of 22 Winged Foot Drive and 26 Winged Foot Drive,rather than parallel to the rear property line. Thus the house is 25 degrees out of parallel to the rear property line and in so doing,it's depressed design makes it virtually impossible for us to build a rectangular addition adjoining our kitchen without having one corner of the addition protrude into the setback. Had our home been designed with the kitchen on the other side of the house this would not have been an issue,since the back left corner of the porch is 17 ft.from the setback line. Mr.Bernstein said in closing I hope you agree that the appeal I've made serves a good purpose,that the variance I've requested is extremely minimal,that it provides a tremendous benefit to my family,while at the same time having no measurable impact on the health,safety and welfare of the neighborhood or the community. Thank you very much. Zoning Board October 24,2001 Page 47 Mr.Gunther asked if there were any questions from the Board members. There were none. Mr.Gunther asked if there were any questions from the public on this application. There were none. Mr.Wexler asked a question regarding the size of the drawings. He said when the drawings are this big and they are done on the computer,would you request them to be half size? They're unwieldy. I've presented in a couple of communities that require only a specific size drawings. Mr.Davis said that is a requirement..inaudible. On motion of Mr. Gunther, seconded by Ms. Martin, the following resolution was proposed and ADOPTED unanimously,5-0. 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 Ms.Martin,seconded by Mr.Gunther,the following resolution was ADOPTED: WHEREAS,Richard Bernstein has submitted an application to the Building Inspector,together with plans to construct a family area addition to the existing kitchen on the premises located at 24 Winged Foot Drive and known on the Tax Assessment Map of the Town of Mamaroneck as Block 204,Lot 310. The addition as proposed has a rear yard of 33.23 ft.where 40 ft.is required pursuant to Section 240- 35B(3)for a residence in an R-20 Zone District;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 240-35B(3);and WHEREAS, Richard Bernstein 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. Taking into consideration the testimony of the applicant at the meeting and personal observation at the premises, there will be no undesirable change produced in the character of the neighborhood, or detriment to nearby properties. The neighbors in the immediate vicinity have indicated that they are in favor and do not object to the addition which would enhance the character of the neighborhood. B. There is no reasonable alternative to the applicant to expand the kitchen and create a family area off of the existing kitchen. To relocate the kitchen is not a reasonable alternative. Given the unusual configuration of the property and the location of this house as it exists on the property,there is no way for the Zoning Board October 24,2001 Page 48 applicant to create this family area off of this kitchen which would not involve the necessity of an area variance. C. This variance itself is not substantial. The applicant produced figures that the provisional setback is approximately 1%of the total rear yard setback. D. This will not have an adverse impact on the physical or environmental conditions in the neighborhood or district. They're recreating the deck essentially in the same location as it is now and creating an area off the kitchen for their children to play. Based on the view of the property from the Leatherstocking Trail, because of the difference in grade to the walking path on the Bernstein property, there will not be an adverse impact on the use of the Trail. E. There is no self-created difficulty. They are just bearing with the existing conditions on an unusually shaped parcel. 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 one(1)year of the filing of this Resolution. 3. The building permit shall be void if construction is not started within one(1)year 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.Winick asked Ms.Martin to add one finding to that which is based on a view of the property from the Leatherstocking, because of the difference in grade, which is the walking path on the Bernstein property,and there will not be an adverse impact on the users of the Trail. Mr.Gunther informed the applicant to see the Building Department during regular hours for a building permit. Zoning Board October 24,2001 Page 49 Mr.Bernstein said he may not begin construction until about April or May,and I believe Mr.Carpaneto said that neMs to be addressed in some manner now. Mr.Carpaneto said the application is now going to proceed to the Planning Board which should really be no problem,but to extend the time frame for obtaining a building permit,six months to obtain and then add a year to finish. If you can extend the initial permit granting up to a year that will be good. Mr.Gunther informed Ms.Roma to write the resolution with one year to get a building permit. Mr.Gunther said we're going to call application#2473 of Stephen Standor one more time. If he's not present,I'll make a motion that the application be held over until our next meeting. No one was present for this application. On a motion made by Mr.Gunther,seconded by Mr.Winick,it was unanimously RESOLVED,that the Public Hearing of case#2473 be,and hereby is,adjourned to the November 24,2001 Zoning Board meeting. APPROVAL OF MINUTES Mr.Gunther said the review of previous open Minutes will be held over until the next meeting. NEXT MEETING The next meeting of this Board will be held on November 28,2001. ADJOURNMENT On a motion made and seconded,the meeting was adjourned at 12.10 p.m. Marguerit Roma, Secretary