HomeMy WebLinkAbout2001_09_19 Zoning Board of Appeals Minutes MINUTES OF THE REGULAR MEETING OF THE
ZONING BOARD OF THE TOWN OF MAMARONECK
SEPTEMBER 19,2001,IN THE COURT ROOM,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: Peter R.Paden,Counsel
Ronald A.Carpaneto,Director of Building
Nancy Seligson,Liaison
Thelma Tallegrand,Public Stenographer DEC 'to
Carbone&Associates,Ltd.
111 North Central Avenue
Hartsdale,NY 10530
Marguerite Roma,Recording Secretary
CALL TO ORDER
The meeting was called to order by Chairman Gunther at 7:50 p.m.
Mr. Gunther said before the meeting starts, he made note of all the events that have occurred in our
country and city within the last week or so. This Board's meeting is being held,because a public notice
was placed in the newspaper a while ago which is required. If there is any applicant here who would like
to have their application held over until the next meeting,the Board will be perfectly happy to hold that
application over until then. On the other hand,if your application is called tonight and you would like to
proceed, the Board is ready to proceed as well. However you decide to have the Board handle your
application,we will be happy to go in either direction.
Mr.Gunther said before reading the first application,the application of Robert Bell Associates for Jeff and
Karen Berman which was adjourned from a prior meeting,he will read the application. Before calling it,
Mr.Gunther said he has a letter from counsel,Edward M.Lieberman,from someone with regard to that
hearing.
The Secretary read the application as follows:
APPLICATION NO.1-CASE 2459(sdjoamea 6/27/01;7/18/01)
Application of Robert Bell Associates for Jeff and Karen Berman requesting clarification of the Zoning
Board of Appeals resolution No.2434,dated December 20,2000,which granted a variance to construct
a two-story addition and chimney 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.
Mr.Gunther asked if the applicant was present and if they wanted to proceed.
William Simon,of McCullough,Goldberger&Staudt the attorneys for this case,said they are prepared
to proceed. He said they understand that Mr.Lieberman requested the case be moved back in the agenda,
due to services for Rosh Hashonah,which Mr.Gunther read into the record.
Zoning Board
September 19,2001
Page 2
Mr.Gunther said if there is no objection,he would like to hold the application over until Mr.Lieberman
arrives. There was no objection.
Mr.Gunther informed those present that application 1 and lb both pertain to the same matter. He said
if anyone was present for application No. 1 with regard to Jeff and Karen Berman of 5 Avon Road,the
Board will hold the application over until the attorney or a neighbor arrives on this matter.
The Secretary read the next application as follows:
APPLICATION NO.lb-CASE 2459b
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 there was anyone present for application number 2,David Maisel,and if he would
like to proceed.
Mr.Maisel was present and said he would like to proceed.
The Secretary read the next application as follows:
APPLICATION NO.2-CASE 2462
Application of Mr.&Mrs.David Maisel requesting a variance to construct a rear addition and to legalize
an existing wood shed on the premises located at 36 Villa Road and known on the Tax Assessment Map
of the Town of Mamaroneck as Block 111,Lot 170. The rear addition as proposed has a side yard of 8.3
ft.where 10 ft.is required pursuant to Section 240-38B(2)(a);and further,the addition increases the extent
by which the building is nonconforming pursuant to Section 240-69 for a residence in an R-7.5 Zone
District. Also,the existing wood shed located in the rear yard has a side yard of 1.7 ft.where 5 ft.is
required pursuant to Section 240-38B3(b).
David Maisel,of 36 Villa Road,Larchmont,New York,addressed the Board.
Mr.Gunther asked if Mr.Maisel to go through the application with the Board and if Mr.Maisel had
photographs.
Mr.Maisel said he has some photographs,which were marked as an exhibit.
The secretary said she also had a few pictures in the file.
Mr.Maisel said he would also like to submit a letter from 42 Villa Road,the neighbor that is directly
adjacent to where the shed is.
Mr.Maisel then pointed out the back of the house and indicated where they want to build the 8.3 ft.
addition to the property line. He then pointed out another view of the side of the house and the property
line. He pointed out the structure that is a garage of his next door neighbor,who gave him a letter saying
that she personally has objections to the 8.3 ft.addition as well as the shed. The next picture is the shed,
which was there when they purchased the house approximately six(6)year ago. It's on a concrete base
and it always was there.
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September 19,2001
Page 3
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Mr.Gunther read a letter from Patricia Healy Bainton of 42 Villa Road,which is a part of the record,who
has no objection.
Mr.Gunther asked if there were any questions from Board members.
Mr.Wexler said that the survey that came with the application has 8.6 ft.as the rear of the existing house.
It has no dimension on the front of the house. (...sorry,can't hear) The architect is extending that line
out 11' ft.,not running parallel(...sorry,can't hear).
Mr.Maisel said he believes it does run parallel.
Mr.Wexler said he doesn't know how Mr.Maisel knows that.
Mr.Maisel said he believes the architect has drawn it 10 ft.,but Mr.Maisel came out 111/2 ft.parallel.
This is the current existing wall. Coming out 10 ft.will still be the same distance away.
THERE IS QUITE A NOISE DISTURBANCE ON TAPE!
Mr.Gunther said Mr.Wexler's point is well taken,because if you look at the width of the shed it's 5 ft.
11 in.and in the survey it's further back, 1.9 ft.
Mr.Wexler said that goes to the fence.
Mr.Maisel the fence is on the side,outside of the property.
MR.WEXLER IS SPEAKING BUT I CAN'T HEAR IHM,DUE TO THE NOISE ON TAPE.
Mr.Winick the variance requested,if granted,would be granted as it is written to allow Mr.Maisel to
' build 8.3 ft. from the property line. (sorry can't hear what' being said.) The architect ne ds to
understand the finished product has to be....(sorry can't hear).
Ms.Martin said the same with the shed.
Mr.Gunther said that the survey notes the shed as being 1.7 ft.,'
Mr.Gunther asked if there were any other questions from Board members. There being none,he asked
if there were any questions from the public on this application. Chere were none.
On motion of Mr. Gunther, seconded by Mr. Winick, the bllowing resolution was proposed and
ADOPTED unanimously,5-0.
RESOLVED, that this is a Type II action having not significant impact on the environment
pursuant to 6 NYCRR§617 et seq. Accordingly,no further action under SEQRA is required.
On motion of Mr.Winick,seconded by Mr.Gunther,the following resolution was ADOPTED:
WHEREAS,Mr.and Mrs.David Maisel have submitted an application to the Building Inspector,
together with plans to construct a rear addition and to legalize an existing wood shed on the premises
located at 36 Villa Road and known on the Tax Assessment Map of the Town of Mamaroneck as Block
111,Lot 170. The rear addition as proposed has a side yard of'8.3 ft.where 10 ft.is required pursuant
to Section 240-38B(2)(a); and further, the addition increases the extent by which the building is
nonconforming pursuant to Section 240-69 for a residence in an R-7.5 Zone District. Also,the existing
wood shed located in the rear yard has a side yard of 1.7 ft.where 5 ft.is required pursuant to Section
240-38B3(b);and
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September 19,2001
Page 4
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),Section 240-69 and Section 240-38B3(b);and
WHEREAS,Mr.and Mrs.David Maisel 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. The application proposes a bump-out of the house along the existing wall that
is indicated on the plans as being 8.3 ft. from the side property line. The
border between the applicants'property and the property next door is screened
and the depth of the back yard is such that based on inspection of the property
and review of the plans,there will not be an adverse impact on the adjoining
neighbors'use of their back yard.'The houses are sufficiently in line. This is
a sufficiently small addition that does not adversely affect the neighbor.
B. Given the size of the lot, the size of the house, and the lack of any other
practical place to add on the proposed room,the applicant's cannot achieve their
goals via a reasonable alternative which does not involve the necessity of an area
variance. The placement of the house and patios precludes construction of the
addition in another place that wouldn't require a variance.
C. The variance is not substantial. It is at most 2 ft.from the required setback.
It is relatively shallow given the size of the back yard,and hence does not have
that great an affect on the adjoining property.
D. This is not a self-created difficulty. Obviously the condition here is simply the
result of the placement of the house on the lot,which is fairly typical in our
community. It predates the ownership;of the property and was not caused by
anything that's been done on the property by the applicant.
E. The other half of the resolution addreses an existing shed which the applicant
had stated was on the property when it was purchased six(6)years ago. The
shed is built on a concrete foundation. The neighbor does not oppose the
granting of this variance. While it's not determinative,it should be given some
weight here. The shed as it's situated is screened somewhat from the neighbor's
property by the neighbor's garage, is fairly small and as such, the impact,if
any,on the neighbor will be minimal.,
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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.
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September 19,2001
Page 5
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G. The variance is the minimum necessary to alleviate the difficulty detailed in the
application yet also preserves and protects the character of the neighborhood and
the health,safety and welfare of the community.
H. The strict application of the Zoning Ordinance and the Town Code would
deprive the applicants of the reasonable use of the land/or building,and the
variance granted by this Board will enable such reasonable use.
NOW,THEREFORE,BE IT
RESOLVED,that the subject application be and the same is GRANTED,subject to the following
conditions:
1. This variance authorizes the construction as shown on the plans presented and no other.
2. The applicant shall obtain a building permit within six(6)months of the filing of this
Resolution.
3. The building permit shall be void if construction is not started within six(6)months and
completed within two(2)years of the date of said permit.
4. Construction shall be in substantial compliance with the plans submitted in connection
with this application.
This decision shall be filed with the Town Clerk as provided in Section 267-a(2)of the Town Law.
Mr.Gunther informed the applicant to see the Building Department during regular business hours for a
building permit.
Mr.Wexler asked Mr.Carpaneto on the application,the short environment assessment form,#10,"DOES
ACTION INVOLVE A PERMIT APPROVAL OR FUNDING,NOW OR ULTIMATELY FROM ANY
OTHER GOVERNMENTAL AGENCY(FEDERAL,STATE OR LOCAL)?if that should be yes for a
building permit.
After some discussion,Mr.Paden said he would say no.
The Secretary read the next application as follows:
APPLICATION NO.3-CASE 2464
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.
Mr.Collado,of 3 Hawthorne Road,Larchmont,New York,said he is proposing to move the driveway,
which is currently facing Palmer Avenue away from Palmer Avenue to face Hawthorne Road. The biggest
motivating factor to make that move was for safety purposes,not only for himself but for his family as they
have a three year old son and another one on the way,and also for the pedestrians. Palmer Avenue is a
highly trafficked road,cars are often speeding and often they lookfor these signs that alert drivers that they
are speeding. Obviously,it is a fairly dangerous road. Mr. Collado said his proposal is to switch the
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September 19,2001
Page 6
driveway to Hawthorne Road,which is a lower traffic road. No pedestrians are really crossing that road
that often.
Mr.Collado also proposes that the new driveway is going to be a bluestone driveway,which will have
minimal impact on the environment. The current driveway that is now facing Palmer Avenue,is going
to be ripped up. It is a blacktop driveway and that will be seeded,which will increase the area of the
ground surrounding the property. It will actually improve the environment.
Mr.Collado said when they took into consideration the actual design of the new driveway,they tried to
design it so it would adhere as much as possible to code keeping the driveway at least a 5 ft.minimum
from the property line. If the Board looks at his design,the Board will note that the driveway actually
begins about 6 ft.away from the property line and gradually moves to a position where it is no longer
according to code.
Mr.Collado said with respect to the addition on the garage itself,he tried to make that addition so that you
would have the least impact on the environment. He designed it so that it would be a 7 ft. by 9 ft.
addition,which is below that 100 ft.threshold so that no drainage issue exists. Again,it will not be a
problem.
Mr.Collado said in addition to that,the garage is an existing garage. The addition itself is a going to have
a stucco exterior,which will make the addition non-combustible. The actual building itself is 5 ft.from
any premises within his property line as well as his neighbors.
Ms.Martin asked Mr.Collado what entrance does he use as a guest entrance coming to his house.
Mr.Collado said they use the Hawthorne Road entrance.
Ms.Martin said currently if you park in front,you have to walk all the way around the house to get in the
front door,correct?
Mr.Collado said they have an entrance in the back of the house. The way the driveway is configured
now,it actually kills the back yard. They don't really have a back yard for play.
Mr.Wexler said when you cut off the deep driveway,you're cutting through your property,with which
Mr.Collado agreed. Mr.Wexler said you're coming up a rath&steep grade and asked if Mr.Collado
is going to build retaining walls there.
Mr.Collado said he won't do that unless it is necessary. If thegrade is steep,they will have to build a
small retaining wall using cobble stones.
is
Mr.Wexler said he doesn't know how Mr.Collado is going to do that without a retaining wall.
Mr.Collado said the actual rise is not that close to the sidewalk The rise Mr.Wexler is referring to is
probably about 10 ft.into the property line,unless he's mistaken.
Mr.Wexler asked how do you get up to that rise? You'll have;to bring that slope back further.
Mr.Collado said his architect designed it. It's not a huge slope,
Mr. Wexler said there are no contours here and asked Mr. Carpaneto if he has to show that on the
drawings.
Mr.Carpaneto said not necessarily.
Mr.Wexler said those retaining walls cannot be in that area.
Zoning Board
September 19,2001
Page 7
Mr.Carpaneto said sure.
Mr.Gunther asked if there were any other questions from Board members. There being none,he asked
if there were any other questions for this applicant from the public.
Sandra Weed,of 6 Hawthorne Road,said she is concerned if there is a drain,about the drainage and the
impact on the trees that are on the next property. She said they look out at it and enjoy looking at the
trees. If they're going to be compromised with the fact that there will be a driveway there,which will be
spewing out some kind of oils and whatever,it's natural. If there's going to be a wall,are the trees going
to get enough water? She is also concerned about the size of the garage. Is it going to be the same size
as it is now,or is it going to be bigger?
Mr.Gunther asked Ms.Weed if she looked at the plans.
Ms.Weed said that she looked at it and it looks like it's going to be a little bigger. She's concerned about
it being 1 ft.from the property line.
Mr.Gunther asked Ms.Weed if she had any other questions and she said no.
Mr.Collado said he is also very much environmentally conscious,which is really the reason to build a
driveway that is bluestone and not blacktop. It should not have any impact to the environment and should
not affect the trees along my neighbor's property line. With respect to the addition,it's a 7 ft.by 9 ft.
ft.addition,about 84 sq.ft. It's the smallest possible addition Mr.Collado could make to accommodate
the new entrance,without any significant impact to the environment.
Mr.Winick said looking at the plans,and as drawn on the site plan,which is part of the submission for
the variance and on the architects plan,the addition is shown as 7 ft.6 in.by 12 ft.
Mr.Collado said that's correct.
Mr.Winick said the 12 ft.width would be the width of the face of the driveway,which is going to now
be the entrance for a car.
Mr.Collado said yes. This will be the facing side and the t will be 7 ft.
Mr.Wexler said he's proposing a 12 ft.wide driveway,leading to a door that's 8 ft.wide in the garage.
Mr.Collado said the door Mr.Wexler is looking at is a proposed door on the side and could be 8 ft.
Mr. Wexler said Mr. Collado has no way of screening on that side in that 1 ft., to the 12 ft.wide
driveway. He said Mr.Collado is leading to a door that's only 8 ft.wide and asked why.
Mr.Collado said the architect drew the plans to accommodate a one-car garage and wishes he was present
to answer that question.
Mr.Wexler said he doesn't think Mr.Collado needs a 12 ft.wide driveway to go into that don,.
Mr.Collado said he thinks they had recommended a 10 ft.driveway there.
After some discussion,Mr.Wexler said what is drawn of the 12 ft.wide building,it shows the driveway
coming in. It might be 10 ft.at the front,but he widens it out to the full width. It leaves him 1 ft.,or
a strip of land. Mr.Wexler thinks he can definitely pull that in 2 ft. At least you can put some screening
there and some shrubbery.
Zoning Board
September 19,2001
Page 8
Mr.Coico said in constructing this driveway,when he looked at the property,it was his impression that
Mr.Collado was not going to remove any trees.
Mr.Collado said he is not removing any trees.
Mr.Coico said the dividing line between the two properties,there are trees there.
Mr.Collado said there are there now along the perimeter.
Mr.Wexler asked if the trees are on that property line or on this side of the property line.
Mr.Collado said there is existing shrubbery between the two properties.
Mr.Wexler said nothing on his property is being removed.
Mr.Collado said nothing on his property is being removed,just the tree.
Mr.Wexler said there is nothing on his side,with which Mr.Collado agreed.
After some discussion,Mr.Winick asked if Mr.Collado has been able to talk to his neighbor about any
submission or anything that the neighbor seems fit to make with regard to Mr.Collado's application.
r , Mr. Collado said no. He has no objection to Mr. Collado putting the driveway on that side of the
property. None of his neighbors,other than the ekception'of Ms.Weed,has any objection to him putting
the new driveway there alongside. She fully supports it. Mr.Collado said that the house that he bought
at 3 Hawthorne Road has been neglected. It is an eyesore to the neighborhood. He took it over and he's
been making it as liveable as possible.
Mr.Winick said if he can read Mr.Wexler's mind for Mr.Collado,Mr.Winick said he thinks what his
concern is is when one of these variances was granted,it was granted basically for all time. He said Mr.
Collado's neighbor may move out,someone else may move in. Mr.Winick said what the Board is told
to do in the Zoning Law is to grant the least variance that the Board can that achieves the applicant's needs.
Mr.Winick's concern here,and what Mr.Wexler verbalized,is that it is possible to grant a variance here
that leaves a strip of earth on your side of the property which could be combined with a condition on the
variance. The variance could be conditioned with a requirement that you could keep the driveway screened
from your neighbors. It seems reasonable to put the burden on you,because you want to do the work
rather than your neighbor. There may be no need for screening at this point,because there is adequate
screening on the other property. None of us know what's going to happen in the future,as people continue
to work on their homes incessantly as they do here.
Mr.Winick said there's one possibility that the Board can propose here,which is to grant the variance with
that condition. That's something Mr.Winick thinks is reasonable,given Mr.Wexler's observations about
what's possible here. Given the fact that the architect is not present,Mr.Winick does not know what
impact that will have on his design. Mr. Collado may not know. A possibility would be to let Mr.
Collado talk to the architect,hold this over for a month and let him come back. Mr.Winick realizes that
it's getting late in the year hut would hate to grant a variance with a condition and then have your architect
tell you it's not going to work.
Mr.Collado said one of the things he will be doing on the property,is to put a small fence. He doesn't
know if that will meet Board requirements or is the Board saying they want shrubs?
Mr.Wexler said once Mr.Collado puts up that driveway there,there is no ability to put shrubs there. At
least it will give someone an opportunity in the future to put shrubs there. Mr.Wexler said he doesn't
think Mr.Collado needs that wide a driveway. It's still only a one car wide driveway. Leading to your
Zoning Board
September 19,2001
Page 9
garage,it's 12 ft.wide. You can get away with a 10 ft.wide driveway and that leaves the left side of it
in line with the left jam of your garage door.
Mr.Coico asked,aren't you suggesting that if this were done,the driveway would be narrow to the front?
In each case,you would simply gain 1 ft.on each side.
Mr.Wexler said no not 1 ft.,2 ft.on that side.
Mr.Coico said then the architect needs to confirm that shifting it 2 ft.as opposed to centering it 1 ft.that
1 ft.will be accessible.
Mr.Wexler said there is an architect who submitted this and professional engineer,but the person who
designed this should be aware of that.
After some discussion,Mr.Wexler said it won't be such a monumental variance.
Mr.Gunther asked Mr.Wexler to review the conditions,so that the applicant can proceed.
Mr.Wexler said one is that the driveway should be reduced to a 10 ft.wide driveway and that the left side
of the driveway should align itself,at least when it comes to the garage,with the left jam of the garage
door. That will give them 3 ft.from your property line. You can also build your extension 1 ft.further
from the property line and add the space to the other side,which would give a little break in that facade.
It won't look so large,and just add that to this side.
Mr.Collado asked,move the addition 1 ft.over?
Mr.Wexler said move the addition 1 ft.over,it will give you what you want and get the driveway a little
further away. The drawing should really show that.
Mr.Gunther informed Mr.Collado the Board can proceed any number of ways. First move a resolution
indicating the change or,what would probably be a better recommendation,is that we have a plan from
you which specifically states what you want to do,after consulting with your engineer,and have him draw
it appropriately.
Mr.Collado said that will delay the decision.
Mr.Gunther said what the Board would do in that case is that the Board would not have to renotice the
application,because it would be less than what was requested and not more. We would merely adjourn
the application until the next meeting,which is normally the fourth Wednesday of each month.
Mr.Winick said maybe what we can do is firm up our meeting date and also tell Mr.Collado the last day
to submit papers.
After some discussion,Mr.Gunther asked how Mr.Collado!would like to proceed.
Mr.Collado said he can always come back.
Mr. Gunther asked if there were any other questions from anyone in the public with regard to this
application before we proceed? There was no response,
After some discussion regarding the next meeting date,on a motion made by Mr.Gunther,seconded by
Mr.Winick,it was unanimously
Zoning Board
September 19,2001
Page 10
RESOLVED,that the Public Hearing of case#2454 be,and hereby is,adjourned to the October
24,2001 Zoning Board meeting.
Mr.Gunther informed Mr. Collado that if he has a question along the way,don't hesitate to call the
Building Inspector and he can guide him as to what to expect.
Mr.Gunther said that Mr.Lieberman has arrived and asked if he would like to proceed with application
2459 and 2459b. In deference to your letter request,we held off your application.
Mr.Gunther recalled application No.1,case 2459,which has already been read,and asked if the applicant
is present.
Robert Bell is present,along with counsel.
Mr.Gunther asked whomever is going to speak for the applicant to come forward and identify themselves
along with his address for the record.
William Simon,of McCullough,Goldberger&Staudt, 1311 Mamaroneck Avenue,White Plains,New
York,counsel for the applicant,appeared to address the Board. He said also present with him this evening
are Robert Bell,the architect,and Mr.&Mrs.Berman,the homeowners.
Mr.Simon said what he would like to do is to clarify what it is they're talking about and what it is they're
not talking about. He said there are two applications;one is for clarification and one for an area variance
of 1.2 ft.
Mr.Simon said that the application for clarification is withdrawn. They are only addressing the application
for the variance.
Mr.Gunther said in that case what he would like to do is have application lb read. Let the record show
that application#1,case 2459,has been withdrawn by the applicant.
The Secretary read the next application as follows:
APPLICATION NO.lb-CASE 2459b
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.
William Simon,of McCullough,Goldberger&Staudt, 1311 Mamaroneck Avenue,White Plains,New
York,the attorney for the applicant,addressed the Board.
Mr.Simon said they are present to address only the area variance, 1.2 ft.or 1.3 ft. It amounts to a small
corner of the building. The Board will weigh the benefit to applicant against the detriment to the health,
safety and welfare of the neighborhood. He suggests,if the Board finds no detriment,it is your duty to
grant the application.
Mr.Simon said it's important to understand what they're here to talk about and what they're not here to
talk about. There was a prior application. It was granted. This addition of 74 sq.ft.was granted by this
Board back in December of 2000. That was an addition to the lot coverage of roughly.7 of 1%. We're
not here to revisit that and hopes the Board won't get into a discussion of that. He regrets that they're
back here at all and he thi k it is important that he make it clear to the Board why they're back. He said
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Zoning Board
September 19,2001
Page 11
Mr.Bell,the architect,will give the Board details of why we are back here. He said we are not back
here,because there was a builder's error. The builder did not do anything wrong. He built precisely in
accordance with the plans. That's not an issue here. There was no architect error. Third,there was no
effort on the part of the applicant to get something more than they were entitled to. They didn't build
anything different. They didn't add anything on. They built per the plans. There has been no suggestion
by anyone that there have been efforts to build something and get something extra.
Mr. Simon said here's what happened. The architect relied upon the survey done by Mr. Spinelli
originally from 1988. That survey was updated in 1991. When it was updated,no red flag was raised that
there was any kind of problem with it. People relied upon it. That survey was again relied upon in 1995,
when Mr.&Mrs.Berman bought their house,both by the bank that gave them the mortgage and by their
title company. Again,no question was raised. When our architect took that survey and relied upon it,
his reliance was utterly reasonable. Again,there's been no suggestion to the contrary by anyone.
Mr.Simon said during construction,an additional survey was done by Mr.Boumazos. That survey differs
very slightly from Mr.Spinelli's survey. He said Mr.Bell,our architect,will explain to you what that
did and how that impacted this building. He has to tell the Board as he stands here,he's not sure and he
doesn't think anyone knows whether Mr.Spinelli was right and Mr.Bournazos was wrong,whether the
reverse was true or whether they're both wrong to some degree or whether a third survey would produce
a confirming or different result. In the face of that,we thought what's appropriate here is to take the most
conservative path. The Bournazos'survey says we've got a problem. Rather than go fishing around for
additional surveys looking to confirm Spinelli or get a third reading,we thought the appropriate thing to
do was come here and address this with you. We're talking about a very small chunk of this building.
Our architect has an actual scale markup. We're talking about an utterly minimal additional variance.
We're talking less than 3 sq.ft. That's all we're here to talk about. He suggests as the Board looks at
that 3 sq.ft.,and you think about the benefit to the applicant of literally having to take a chain saw and
slice it off,you will see there's a tremendous benefit to the grant of this application.Mr.Simon suggests
to the Board,and won't go into detail at this point,as you look at that building as it exists today,or if you
took that chain saw and you shaved off that little strip in the corner, it is not going to impact the
neighborhood in any way. It's not going to be visually different It's simply just going to have no impact.
at all. There is no reason to be concerned about some kind of precedent that will be set from allowing this
1.3 ft.little triangle,in view of the unusual configuration of this corner lot the extraordinary topography
of the lot and the good faith mistake as opposed to a builder's error that occurred here.
Mr.Simon said something that was raised previously and has been raised anew here,is the issue of side
yard versus rear yard. He said although this is basically a triangular plot of land,it does have a fourth
side. Your code provides that with a corner lot,a rear yard shall be provided. That's mandatory. That's
not discretionary. The owner shall elect which yard is the rear yard. For some reason,that has been sort
of passed by in earlier days and he doesn't want to revisit that..=He doesn't think we're here to revisit the
past,but in terms of looking at this application,had we electedtto have the short fourth side be that rear
yard,we wouldn't be here. He throws that out for your consideration as well.
Mr.Simon said at this point what he would like to do,is turn the floor over to our architect. He'd like
him to give you some more detail on exactly what he did andtexactly how this mistake happened. He
thinks the Board will agree with him that there was no bad faith in doing this part. At that point,either
Mr.Bell or I will be happy to answer any questions you have. What he'd like to do then,with your
permission,is defer to the folks here who may want to speak and then if you have questions that are raised
by the opposition,he would be happy to come back and address them. With Board permission,Mr.Simon
turned the floor over to Mr.Bell.
Robert Bell,of 3230 P.Street,Northwest,Washington,DC addressed the Board. Mr.Bell said he's the
architect for the project,and this is his fourth visit on this issue. Just to put it in prospective,the first
thing that he wanted to do was to actually give you a full scale drawing of the amount of area that we're
speaking about,so you get clear what we're talking about on the variance, too. From that,this is the
triangle that we're talking about,this is the corner of the building and if the owners were to not be able
Zoning Board
September 19,2001
Page 12
to have this variance,then we would have to cut that section off the building in order to meet criteria set
by this Board in earlier existences. That just gives you some perspective of what this issue is about. This
is not like a quarter inch scale or half inch scale or anything. This is full scale and exactly the amount of
area you're talking about. It's a little bigger than a football.
Mr.Bell said how did this occur and why did we have an error? He actually has two sets of copies of
each of the surveys for the Board.
Mr.Gunther asked Mr.Bell if these were exhibit#2 that were submitted by Mr.Simon.
Mr.Bell said yes,you all have those? •
Mr.Gunther said yes. Mr.Gunther said Mr.Bell might want to ask if there is anyone in the public who
would also like a copy,since you have extras.
Mr.Bell asked if anyone wanted a copy and provided same to those that did.
Mr.Bell said let him explain. For an architect,when they received this drawing to scale from the surveyor
we scan it into our computer and we scale it to the exact scale. What we didn't have is the shape of the
property, but we have on the property a fixed object,a building. Then we have to locate the exact
relationship of the building to the outside shed. We originally got the first survey. The first day that they
began this project they looked at the property,scaled it out,then rotated the piece of property so that the
distance on this corner was 31.2 ft. Then we went to this corner from the line and we gave a distance of
7.65 ft. Then we went to this corner and we gave a distance.,of 31.9 ft. Those three points,given a
physiology relative to a fixed shape,gave us the exact location of the object in the shape. In other words,
the location of the building on the property.
Mr.Bell said what's happened on the second survey,when we looked very carefully we realized that these
distances had changed. So the distance on this original survey that said 31.2 ft.,this distances says 31.5
ft. This distance to this corner says 7.65 ft. The distance on this said 7.5 ft. Here instead of being 31.9
ft.,it was 31.8 ft. Now you ask yourself why,given these seeming minuscule differences in dimensions,
would this throw off the location of the building. He said to think of it as a giant clock. Because of the
shape of this property,the view swings. If you have a second hand of a clock and you throw it off just
a slight distance and then extend it out 100 ft.,the distance is tremendous. In here,you can see how little
the distance is,because we're really talking about the perpendicular distance across here had changed.
That is the mystery and that's the solution. There was a change here. The builder built it according to
plans. We redesigned it according to survey. The second survey is different. What's the correct survey,
as we said we decided to take the conservative approach here and asked for a variance.
Mr.Bell said the final thing he would like to point out is,what Nirould be the difference to the community,
to the neighbors,if the Board were to say,sorry you called that!dimension wrong,there's no forgiveness
here,wipe it off. What it would mean is they would lose the thickness of a wall,1/2 inch sheetrock drawn
on the plan. It would mean they'd lose this section in their entrance hall,they'd lose this section in their
upstairs. It would be a tremendous inconvenience to go over there and figure out a way to saw off the
edge of this building. For the neighbors looking at it,it will change the prospective absolutely not at all,
so that you can see the difference of the height of this as you look at it from a distance that's going to be
unchanged. If you look at it this way,that's going to be unchanged. Is it going to change the sound? No,
it is not going to change the sound in this neighborhood or between the neighbors to cut this football off
the edge of the building. Is it going to change the entrance way? No,here is literally the door here and
in this place the door ended up being over a few inches more,but the door to the exterior could be exactly
where it is. Really,it would change absolutely nothing. It would punish them for two different surveys
with a different system.
Mr. Wexler asked if that triangle represents the foundation that would have to be cut off,that or the
overhang.
Zoning Board
September 19,2001
Page 13
Mr. Bell said if that's first floor or second floor, the foundation is right to there. The foundation is
actually one-half inch,that from that to that,so the plywood goes up to the concrete and the shingles go
on top of that.
Mr.Wexler said the survey is taken from the foundation,he believes.
Mr.Bell said from the edge of the foundation.
Mr.Wexler said he just wants to know where he is projecting the triangle on the plans.
Mr.Winick said he noticed on this drawing that the Board got tonight,he's shown the steps on this plan.
The steps were not shown on the plan that was submitted at the time the first variance was granted.
Mr.Bell said they have the plans,which were signed that night at the end of this discussion. The actual
drawing that we had in front of the Board,we signed that night with Mr.Carpaneto about ten minutes after
our discussion. He said these are the drawings and they do show the stairs at least in four places.
Mr.Gunther said while they're looking through that,he wanted to ask if there's a difference between the
plans that were submitted for building and the plans that were submitted to the Board,are these the detailed
drawings for building or are these the plans that were given to the Board,because he is holding what was
given to the Board and there are no steps on them.
Mr.Carpaneto said that's the site plan,that's correct.
Mr.Gunther said this is what was given to the Board.
Mr.Bell asked if the Board does not have the...interrupted.
Mr.Gunther said that the Board does not generally get....interrupted.
Mr.Carpaneto said that the Board had another set of plans.
Mr.Gunther said he will be happy to look at the...inaudible,if he can tell him where the steps are on this
plan.
Mr.Carpaneto said there was a set of drawings that the Board had. That's just the site plan right there.
Mr.Wexler said he believes we had a set of drawings.
Mr.Winick said what he's asking to see is not what was signed after the hearing,but what was submitted
on which we voted.
Mr.Carpaneto said he can go upstairs and get the file,which he proceeded to do.
Mr.Winick said apparently this is not it. We never received a submission this thick.
Mr.Bell asked for some clarification on that.
Mr.Gunther said he would like to take a two minute recess while the Building Inspector retrieves the file.
A break was taken at this time for Mr.Carpaneto to retrieve the file(8:55 p.m.to 9:00 p.m.).
Mr.Wexler asked if the date in the lower left-hand corner is the print date or the date of the drawing.
Mr.Bell said it's the print date.
Zoning Board
September 19,2001
Page 14
Mr.Winick suggested since we now have a set of fairly identically looking documents around that we in
some way mark what Mr. Carpaneto just brought down,so we know that that's the document that we
considered at the time the variance was granted.
Mr.Simon suggested that if the plans are not identical,that we marked those that are different,so we have
a record. If they're just multiple sets,it doesn't make any sense.
Mr.Gunther said all he has here is one set of floor plans and the second one is a roof plan.
Ms.Martin said it could not have been submitted at the meeting. It's dated January 5th.
Mr.Gunther said here is the one that's dated July 20,2000.
Mr.Simon asked when was the variance granted.
Ms.Martin said December 20th.
Ms.Martin asked how could something dated January 5th be part of a variance granted December 20th.
Mr.Simon said he's not saying that. He's saying the distance was part of it. He said he's just looking
at the Minutes of the meeting where this was granted and he believes the Minutes indicated that's what was
granted at the January 24th meeting.
Edward Lieberman said there was a second. The Board denied the variance for the chimney in December.
_, They applied a second time for the chimney,he believes,and that was granted in January.
Mr.Bell said he is going to clarify that one didn't show the steps. That's a roof plan,not a floor plan.
That's reasonable that it is the January one,because it dealt with the dormer and the new chimney.
Mr.Wexler said on exhibit 5 of the papers that were submitted,if you have a measurement of 31.8 ft.,
this is,I believe,the dimensions based on the Spinelli survey.
Mr.Simon said it should be from the Boumozos survey.
Mr.Wexler said he's assuming this is just an error,that the diiiension line is normal to the property line
not normal to the building. After some discussion,Mr.Wexler said the dimension line,that 31.9 ft.that
shows the setback from the property line,is drawn;not as the survey is drawn. The survey is drawn
perpendicular to the property line,at that point.
Mr.Bell said exactly. This is the dimension,sort of like taking the line parallel out to that point.
Mr.Gunther said that the record should show that Mr.Wexler's question to Mr.Bell referred to exhibits
#5 and#6 that were submitted by the applicant that•refer to architect's drawings and placement of the
property as compared to the two surveys,the Boumozos survey,•which is the latter survey,and the Spinelli
survey,which is the prior survey.
Mr.Gunther asked if Mr.Wexler had any other questions. He did not.
Mr. Simon asked the Chairman if the record was clear that'Mr. Bell did point out the stairs on the
drawings that you marked.
Mr.Winick said no,it's not. Mr.Winick said he didn't point it out to him. He handed it back to Mr.
Simon. What he would like to do is you and Mr.Bell go out and look at what we had at the time of the
December hearing at which the variance was granted.
Zoning Board
September 19,2001
Page 15
Mr.Bell asked and show the several places where the stairs were included?
Mr.Winick said sure.
Mr.Bell said that the stairs were indicated here.
Mr.Winick said that the record should reflect that he is referring to page 1,of exhibit 1,received tonight.
Mr.Bell said the stairs are also shown here in the elevation in the back,page 4.
Mr.Bell said it's the elevation in line with the stairs.
Mr.Gunther said even though it looks similar to the siding on the home?
Mr.Bell said yes.
Mr.Gunther said he would never view that as stairs.
Mr.Bell said it is stairs,because the siding is 8 inches and this is 6 inches.
Mr.Winick said that the record should reflect that there is nothing that labels that which Mr.Bell has
pointed out on page 4 of the exhibit on the stairs.
Mr.Gunther said Exhibit 1 that the Board is referring to are the original plans that were submitted in the
Building Department file when the original application file of Berman,case#2434,was granted December
20,2000.
Mr. Simon said just for the record, he would point out that the notice of disapproval here was not
predicated upon the stairs or the window well that had been mentioned in the opposition. Obviously,if
the Board wants to explore these things,we'll be happy to address them with you. He would suggest,
respectfully,that they should not be the topic of our conversation tonight.
Mr.Simon asked if there were any further questions that the Board has of us now.
Mr.Gunther said you had mentioned at the beginning of your comments that you're not considering this
to be a building error,a builder's error or architect's error. Later in your comments,when you made
reference to precedence,you said it is a builder's error.
Mr.Simon said then I have misspoken. Let me'please correct it. This is a mistake that resulted from a
discrepancy between two surveyors. He believes the builder did its work honestly and fairly,and he
believes the architect proceeded with all due care. He can't tell the Board as he stands here how that
discrepancy in the surveys arose,which one is right and which one is wrong,or whether they're both
wrong. It is an honest mistake.
Mr.Gunther said he doesn't dispute the owners issue of changing the line. He thinks his question is really
deeper than that. He asked counsel for the Town if there is a difference legally or maybe a deft-",on of
builder's error as it pertains to Zoning Laws,because I am not referring necessarily to the builder building
something incorrectly as I'm referring to the outcome,the difference from what was intended and what is
commonly called,from a legal perspective,a builder's error. That's what I'm addressing in terms of the
question. Not who made the error,whether it was Mr.Boumozos or the builder,or the architect. In my
mind,it is less material at this point.
Mr.Paden said he believes that a builder's error would be,as an example,where the builder does not
follow the plans,but he would have to confirm that view with research before he could give an opinion.
Zoning Board
September 19,2001
Page 16
Mr.Simon informed Mr.Gunther that he would be happy to address that at any time.
Mr. Gunther said if Mr. Simon has an answer; he will certainly take all the answers concerning the
definition of a builder's error. He's sure Mr.Lieberman has one as well.
Mr.Simon said he does and he'll tell you the number of pages and I'm inclined to agree with the number
of pages. Mr.Simon said that builder's error occurs where you have an approved plan and the builder
goes off and does something different. There is negligence on the part of the builder. In those instances,
the courts have been loathed to grant release. In one of the cases cited for example,someone went ahead
and built knowing there was a denial of a Certificate of Occupancy. In another,a tennis court was shown
on the plan as being within the 30 ft.setback. It was then built 10 ft.beyond the setback. Those cases
have aroused very little sympathy in courts. One of the concerns,beyond just the obvious,is that they
might ultimately invite fraud. The builder and the homeowner get together and say let's do something
nefarious. The builder runs away,the home owner comes in and says what did I know,the builder did
this terrible thing,I'm the innocent victim you shouldn't make me tear it down. The courts have been
loathed to go down that road. On the other hand,there are cases we cited,some in the materials given
the Board,where there is a good faith mistake as opposed to negligence or willfully disregarding the plans
that were submitted and where the court has been sympathetic and ruled in favor of the homeowner. That's
the distinguishing line.
Mr.Gunther thanked Mr.Simon and asked if there were any other questions from Board members.
Mr.Coico said he was not a member of the Zoning Board when this application first appeared before the
Board and would like a clarification for his own education here. He asked if this part of this lot is being
defined as the rear yard and asked if that's correct.
Mr.Simon said that's correct.
Mr.Coico said as such,the steps that are built in rear yards are not considered,and asked if that's true.
Mr.Carpaneto said that the code doesn't talk about steps in the rear yard. It speaks about steps in the side
and front yards.
Mr.Winick asked Mr. Carpaneto if there is any question whether steps attached to an addition are a
structure any more or less than the rest of the thing they are attached to.
Mr.Carpaneto said no. He said when he did the Notice of Disapproval he was basically focused on the
19.1 ft.and then 17.9 ft. It didn't include the steps.
Mr.Coico said that's the reason for his question,because if you include the steps we're now about 13 ft.
from the lot line.
Mr.Carpaneto said personally he thinks that's just an error in the Zoning Code,because he doesn't see
how you cannot have a set of steps coming out of the back yard that would require a variance,where you
wouldn't require a variance in the side or the front yards. Mr.Carpaneto said he thinks it's just been left
out of the code through leviclature oversight.
Mr.Winick said he would like Mr.Simon to speak to this,because the variance the Board granted was
a stipulated distance from the property line for the entire structure as shown on the plans. That includes
the steps. When Mr.Winick went to inspect this property,he was staggered to see how close those steps
were to the property line. They were certainly not in what was in his contemplation when the Board did
the original variance. They weren't shown as that close,there was no discussion of them being exempt
from the setback requirement in the variance the Board granted,and frankly,they're an awful lot closer
to the property line than anything that was discussed the night the Board voted on the variance. Mr.
Zoning Board
September 19,2001
Page 17
Winick would like to hear from Mr.Simon why that is not how we should be thinking of this,in terms
of granting a variance,in terms of evaluating a variance tonight.
Mr.Simon said he'll start from what Mr.Carpaneto said. You have in your code a provision that says,
if stairs project into a side yard,if they project into a front yard,it's no problem,it's O.K. There is a
strange anomaly. The back yard is left out. It doesn't make any sense. I can't tell you how it happened,
but it doesn't make any sense. Mr.Simon defers to Mr.Carpaneto on what has been done traditionally
here and I think he just addressed that. Mr.Simon doesn't think first of all it's on the plans. No one has
pulled the wool over anybody's eyes. If it appears larger than imagined,we'll have to address that and
perhaps we can.
Again,Mr.Simon thinks this is permitted. It's permitted because we allow things,steps in particular,to
poke into the side yards,and front yards,and I suggest the rear yard gets treated the same. He said he
agrees with Mr.Carpaneto.
Mr.Winick asked to address this and asked Mr.Carpaneto about a variance application the Board had on
16 Mohegan,the one that was withdrawn. Why was there a variance request for steps in that case? It was
the only thing that was a variance.
Mr.Carpaneto said because they were over the 40 sq.ft. He saw that one today,looked back at that,and
what got Mr.Carpaneto to put that into the variance was because it was in excess of the 40 sq.ft.
Mr.Carpaneto said he filed for the steps and platform.
Ms.Martin said that's just if the area of the steps is greater than 40 sq.ft.
Mr.Wexler says right here, "Steps and their platforms not exceeding a total of forty(40)square feet in
area are permitted to project into any required side yard a distance of no more than five(5)feet and into
a required front yard a distance not more than eight(8)feet."
Mr.Winick said,so what we know is that the code is silent about rear yards.
Mr.Wexler asked so what does that mean when it's silent?
Mr.Winick said to ask the lawyer.
Mr.Wexler asked what does it mean if it is silent? Does it mean he can do what he wants?
Mr.Carpaneto said technically it's not in the code book,but he said there are many applications from
myself,the previous building inspector and the building inspector before him,that people have platforms
and steps in their yards where they have just 25 ft.to the back,of the house,they may need something to
get out of the house and that was never an issue for them. That goes for a fence also. Again,that's no
excuse for me not picking it up the second time around,when the steps were shown on that survey.
Mr.Wexler asked if Mr.Carpaneto is saying they needed a variance.
Mr.Carpaneto said if it's not in the code,what does silence mean. We have a term that could go both
ways.
Mr.Paden said it seems to him if it's not in the code,where the code specifically talks about side yards
and front yards,it's hard to argue a variance is not required in the rear yard. Whether that's a mistake
or not,is really beside the point. He doesn't know how you could make a real persuasive argument that
a rear yard does not require a variance. If it specifically provided that a variance is not required for steps
in a side and a front yard,by not addressing a rear yard,it seems pretty clear that a variance would be
required.
Zoning Board
September 19,2001
y_ Page 18
Mr.Simon would only suggest,respectfully,that an argument could be made,based on a pattern and
practice that Mr.Carpaneto said has been followed over the years. People have to get out their back door
and they have to have steps. If this has been observed,it's been observed in the breach.
Mr.Wexler said there are other issues,too,and that is considering in our community where the terrain
is rather irregular in elevation,there are many gardens that have steps in it to get from one elevation
transition to the next elevation,to the next elevation. They're going to be in yards,side yards and front
yards.
Mr.Paden said steps in gardens? That's not associated with structures. That's just a change in the
elevation in the garden area.
Mr.Wexler said it's not projected from the house then.
Mr.Paden said it's a different situation. With all respect to Mr.Simon's position,zoning is particularly
a statutory based business and we have to start with what the statute says. In my opinion on the face of
this statutory language,it would be very hard to argue that a variance is not required.
Mr.Simon said I would suggest to you that the statute code section is ambiguous and ambiguity is always
to be construed in favor of the homeowner. That combined with the pattern in practice,I think gives them
very good and strong argument.
Mr.Winick said my trade is the same as yours. He would ask Mr.Simon to explain to him why,when
it says yes to"A"and yes to"B"and is silent on"C",it would it be construed as saying yes to'CO.
Mr.Simon said because he thinks it is number 1,nonsensical and he doesn't mean to be disrespectful when
he says that. He thinks it's an obvious oversight and he doesn't believe Mr.Carpaneto was saying any
different. He said it's an obvious oversight. It's a situation that clearly has to be dealt with day in and
day out in this community. That's why I say it is ambiguous. It's an anomaly that doesn't have a ready
explanation,combined with what I think is a pattern and practice that involves every day common sense
practicality. Day in and day out these issues are dealt with. This is not a novel issue.
Mr.Winick informed Mr.Simon that he's been two(2)years on the Board and he has never seen this
issue. No one has come to the Board and said yes, I want a variance for this,or no,I don't need a
variance. How it's being dealt with,Mr.Winick is not sure what Mr.Simon means by that. Maybe
somebody has continuously been making a mistake,maybe they have not,but this Board certainly granted
a variance based on plans that were given to us and it stipulated this is from a property line. That variance
made no distinction between the steps and the edge of the structure. Mr.Winick said he doesn't know
what the Town Board would think was passed. I was here when we passed that resolution and I'm trying
to make sense of your argument in light of what was in front of us at that time and I'm having trouble
doing that.
Mr.Simon said he thinks we've pretty well explored it. The steps were shown on the plans. There is this
anomaly in the statute. Mr.Simon acknowledges and he wouldn't say different,that it clearly is silent on
the one point. He suggests to the Board it makes no sense. He believes the Board will fmd if they
explored it that these things,because people deal with them in a practical every day sense, that's in
harmony with what's written in the code that they go under the radar screen,but he doesn't know that.
I tell you I don't know that,I suspect that's the case,but I want to be clear it's not based on any hard
evidence that I understand.
Mr.Gunther asked if any other Board member has any other questions for Mr.Simon at this point.
Ms.Martin said she was curious about this window well,it's functions and its tie between the very odd
construction to her and its dangerous construction. She doesn't really understand its function.
Zoning Board
September 19,2001
Page 19
Mr. Simon said to let him address that and noted for the record this was not part of the Notice of
Disapproval. What you have is a series of basement windows,partially below grade. This is a retaining
wall to hold here. It is presently large inside and much deeper than it will eventually be. It is to be filled
up and will house an herb garden,so that the dirt will be up much higher. Now you could stand in it,and
it's almost up to your waist. It's not going to be like that.
Ms.Martin asked how deep it will be.
Mr.Bell said he has a photograph showing where we intend to fill it to. The fact is this thing probably
could have been a window well at grade. The contractor called me, he said what should we do,I
suggested we build a circular retaining wall and he went down that distance to support it. It was always
intended to be filled. It just hadn't been filled. He just went down there,in order to come to undisturbed
soil.
The court reporter asked what was said;in order to....
Mr.Bell said you can't put the block and then put soil,so he's going down to undisturbed soil and it's
meant to be filled up.
Ms.Martin asked basically back to grade?
Mr.Bell said yes,basically it's about an 8 inch drop that's going to be showing when it's done. The other
one that existed before,is much higher than this one.
Ms.Martin said the lower wall is more dangerous than the higher one.
Mr.Bell said definitely. It's supposed to be filled in.
Ms.Martin said you have steps right there.
Mr.Gunther asked if there were any other questions from Board'members. There were none.
Mr.Gunther asked if there were any questions or comments from the public on this application.
Edward Lieberman,5 Old Road,Elmsford,New York,the attorney who represents Mr.&Mrs.Weston,
who lives adjacent to this property, addressed the Board. First I want to thank the Board for your
indulgence and moving this case back on the agenda.
Mr.Lieberman asked if they all received the letter that he tried ti.get out in time for the Board packet last
week,which they did not receive. He said he provided copies tit the Building Inspector.
Mr.Wexler asked if he was referring the letter of July 12,2001i
Mr.Lieberman said no. The letter of July 12,2001,relates to the first case.
Mr.Lieberman said he wants to express some surprise over the discussion concerning builder's error,
because if you listen carefully to the explanation of what builders error case is,the explanation that was
given was a fact pattern from a case. It said that plans that were approved said that a structure was set
back a certain amount of distance from the rear of her property line,and what was built didn't conform
to the plan that was approved. That is exactly what is the case here. No matter how the applicants slice
and dice this presentation,the facts are very simple. The requirement for a rear yard is 25 ft.,what they
are proposing is 17.9 ft.,what was granted by the Board was 19.1 ft. What was built did not conform to
what the Board approved. That is the definition of a builder's error case,period.
Zoning Board
September 19,2001
Page 20
Mr.Lieberman said the applicants tried to justify this first by stating to you that it was your fault. Your
decision was ambiguous. Thankfully,they've withdrawn that application. They are now trying to justify
this by calling it a surveyor's mistake,as if that makes it O.K. The surveyor was not the Weston's
surveyor,my client. It wasn't the Zoning Board's surveyor. It was the applicant's surveyor,so if there
was a mistake by the applicants agent,it is attributable and they are responsible for it. The issue before
you is you must bear the consequences of that mistake,the neighbors,who had nothing to do with this,
or the applicant,who hired the agent who made this"mistake".
Mr.Lieberman said as stated in his letter,he believes that the correct standard that you apply in this case
is that for a use variance,because Section 240-69 states that,"no:permit shall be issued that will result in
an increase in the extent by which a building fails to meet such requirement." That is exactly what you
are being requested to do,to authorize the granting of a permit for something which the Zoning Board
specifically prohibits. That is the classic definition of a use variance. If you agree with me that this is a
self-created hardship,then the fact that this is self-created hardship absolutely bars the granting of a use
variance. Also,in order to obtain a use variance,an applicant must prove,by dollars and cents proof,that
they cannot use the property for any use permitted by the Ordinance. The applicants have completely failed
to present any evidence on that point at all.
Mr. Lieberman submits that there is no question here that they are not entitled to a use variance.
However,if you decide to apply the standards of an area variance,I submit you should still not grant the
variance. In applying the area variance standards,you must weigh the benefit to the applicant against the
detriment to the neighboring and adjacent properties. In this respect,I will advise you that my clients
offered to settle this by withdrawing the opposition to the addition. The addition provided simply that the
door on the side of that addition which lead onto the steps which project into the rear yard to within 13 ft.
of the property line be removed. In this regard,we would point out that the applicants already have an
access and egress to the rear yard in an area that my clients do not find objectionable. They also have
access and ingress to their mudroom through their garage. When you get down to it,this case involves
an applicant's desire for a second rear yard and steps against the impact that the door and steps will have
on the neighbors in the enjoyment of their home in that,as they testified in the last proceeding,the door
and the steps direct traffic directly under their windows in an area which is within the required setback both
of the Zoning Ordinance and your variances. Moreover,the applicant learned about this violation back
in April, that's the date of the survey that shows that it was 17.9 ft., if you read the letter from the
applicant's attorney saying that that survey was taken just after the addition had been framed and enclosed.
Mr.Lieberman said they could have,at that time,reconfigured the inside. They should have stopped the
construction right then and there and gotten this legalized before they went forward,but they chose instead
to continue the construction. Now they say to my client,we will not accept,we will not agree to move
that door because to do so would reek havoc on the addition andiconstruction.
Mr.Lieberman said the point of the matter is that at the time that:that violation was discovered,that could
have been rectified right then and there. The door could have been moved,the rooms could have been
reconfigured so that door could have been placed elsewhere. They chose not to,so they have made a
decision that it is all or nothing with one exception. You have the;power of the Zoning Board to condition
any variance that you grant in order to mitigate the impact of that variance,so that although the applicants
have made it all or nothing,you have the power to condition this Variance,if you decide to give it,on the
removal of that door and we would suggest that.
Mr.Lieberman said the applicants difficulty here is self-created for at least two reasons. One,the error
was committed by their agent,and two,they continued to construct after discovering the violation. If you
read the cases that I submitted to you, you will see that when.a difficulty is self-created, the cost of
remedying that violation is not a factor that you can consider in making your decision.
Mr.Lieberman said I would submit that there is another and perhaps more compelling reason to deny this
variance. Since the mid-1980's the Case Law in this state has'been that any variance you give sets a
precedent for future cases. You have granted a variance and that variance was violated. You set that
•
Zoning Board
September 19,2001
Page 21
condition presumably to protect the health,safety and welfare of the community,and if you look at the tax
map that was attached to the applicant's papers in support of the application and you look at the whole
neighborhood,you will see that this rear yard is the smallest separation between houses in the entire
neighborhood. What the applicants are seeking to do here is to take a variance that you granted to reduce
that yard and reduce it even further. The idea that this is only a 1.2 ft.variance is plainly wrong. The
requirement is 25 ft. They want to go to 17.9 ft. That's roughly a 30%reduction. The requirement is
25 ft.and they want to go to 13 ft.for the steps.
Mr.Lieberman said with respect to the issue of the steps and the platform,what the statute says is that
steps and their platforms,not exceeding a total of 40 square feet,are permitted to project into a required
side yard or a front yard a certain number of feet. What does that mean? That means it is not permitted
to project into a rear yard. That doesn't mean you can't have steps in a rear yard. It means that when
you build steps in a rear yard,it is required to meet the setback requirements of the rear yard. It is not
permitted to project into it,as this section permits steps to project into a required side yard and front yard.
Mr. Lieberman said getting back to the point about precedent. If you grant a variance to legalize
construction which was done in violation of a specific, and they've withdrawn their application for a
clarification,a specific and exquisite standard that you set. That sets the precedent for the future. That
may or may not compromise your ability to enforce conditions that you set in the future. Mr.Lieberman
urges you to think long and hard before you think of granting this variance for that reason.
Mr.Lieberman said with respect to the window well,which the applicant's attorney now describes as a
retaining wall. If you look at that photograph,you'll see that the window is,at best, 1 inch or 2 inches
below grade and Mr.Bell specifically said that that could be addressed by grading. If an applicant has a
method feasible for it to pursue which would obviate the necessity for a variance,they are required to do
that. You are required to deny that variance. That is exactly the case here. At most,this so-called
retaining wall is going to be holding back 2 inches of fill. That's it. Mr.Bell indicated he can handle that
by grading. There is absolutely no necessity for this window well,and if you think about it and take a look
at that,that window well extends to within 13 ft. If someone wanted to walk from the garage in the
driveway into that door,that we're hoping you remove, they're going to be forced to walk around that
window well. Therefore,it's forcing pedestrian traffic and noise even closer than the 13 ft.from the rear
property line.
Mr.Lieberman said,finally with respect to the interpretation concerning whether this is a rear yard or
whether it should be a side yard,that's a question that's been settled for this case. In addition to being
erroneous,because if you look at Section 240-16,it says the Zoning Board shall determine how regulations
shall be applied to irregularly shaped lots. If this lot is nothing else,it's an irregularly shaped lot. You
have that authority and you made that decision. In the first case,Mr.Carpaneto made that decision. He
interpreted it to be a rear yard. That is why they required the valiance in the first place. When he made
that determination,the applicants had 62 days in which to appeal that decision. They didn't,so they're
time bared from that. When the variance request came before you in December of 2000,two-thirds of that
meeting was taken up with the discussion of whether this was a rear yard or side yard. You made the
determination that it's a rear yard,and the applicants had thirty(30)days to appeal that decision. They
never have. Those interpretation are now fmal and binding on the applicant,and they cannot bring that
up anew now.
Mr. Lieberman said, so what do we have here? We have a situation where you have a rear yard,
unquestionably as the law of this case,it's a rear yard requirement of 25 ft. The applicant built in violation
of a variance that you gave, the idea that this is only'1.7 sq. ft. or 3 sq. ft., is a minimal variance.
Talking about lot coverage,the applicants are not seeking a variance from lot coverage. They're seeking
a setback requirement variance. The variances that are required here are 28%for the addition and 50%
for the steps and the window well. That's substantial by any method.
Mr.Lieberman said one last point is on the steps in the rear yard. He said Mr.Simon has considered this
to be abnormal. You may consider it to be erroneous,the fact that steps can project into a side yard or
Zoning Board
September 19,2001
Page 22
front yard but not a rear yard,but you are not a legislator. You cannot modify the zoning ordinance. You
are here only to apply the Zoning Ordinance. The Zoning Ordinance says what it says. Steps cannot
project into a required rear yard,where they need a 50%variance for that. For Mr.Simon to say,I don't
think we should discuss tonight,I think we should stay with this and think about that. What they're saying
is they came here for a variance for 19.1 ft. They got it. Now they're asking for 17.8 ft. If they get that,
they're going to come back next time. Now they're going to seek a 13 ft.variance,because they said this
was not considered at this meeting or as part of this application.
Mr.Lieberman said he's been counseling Zoning Boards for a long time. He has a Zoning Board member
that had a name for that. It's called slicing the bologna. Whenever somebody would come back for
another variance after an initial variance,it's just another slice of the bologna. If you look at the letter I
sent and you take that example that I gave,that's is exactly what the applicant is seeking to do here when
they say,don't consider that tonight,we'll come back another time for that. This is all part of one thing.
I will point out that if you look at exhibit#5 and exhibit#6,you won't see any steps on those surveys.
I saw plans that did not show the projection. It showed the steps coming straight out from that addition.
I saw plans all over the place. If you look at the plans that they submitted that allegedly show the
projection,I defy you to find a setback on that plan. They have never said how far back that setback is,
even in their supporting papers. The reason? Because they know a 50%variance will probably be denied.
I submit that you should deny it and what you should do tonight is either deny the variance outright or at
best for the applicant,grant the variance only for the addition on condition that the offending structure,the
door,the steps,which bring the noise right to under the bedrooms of my clients,be removed,because of
the statement in the application that said,at one time there was a deck. Well,that deck was further toward
Avon Road,was not in the area where these steps are going to be and where all this traffic is being
directed by the window well and the step platform. I urge you,respectfully,to deny the variance.
Mr. Gunther informed Mr. Lierberman that he has two different questions for him. I'd like a little
clarification from you and maybe a little more discussion on two of the points that you made tonight. One
is your first point,using the requirements of the standards of a use variance as opposed to an area variance.
Typically,we see a use variance for a commercial property or a use that the code does not specifically
allow in a particular zone,like a food establishment in a residential zone,or that kind of thing. Can you
elaborate a little further in your logic as to why we should consider a use variance here?
Mr.Lieberman said if you look at the exact language of Section,240-69,the last sentence says,"no permit
shall be issued that will result in an increase in the extent by.which such building fails to meet such
requirements",meaning a conventional requirement. Therefore,what the Legislature has said to you is
that no permit shall be issued,and the applicant is asking you to do exactly that.
Mr.Winick said that maybe our counsel could address that,because that sounds like that statute would
simply prohibit excessive area variance applications. That doesn't make it,considering that there is a
conforming use for a nonconforming dimensional requirement.
Mr.Paden said I believe the provision means that Mr.Carpanetp is not authorized to issue a permit that
will result in the increase in the extent of a nonconforming use,3tnd that the matter needs to come to the
Zoning Board to seek an area variance.
Mr.Wexler asked if Mr.Lieberman agrees to that.
Mr.Lieberman said Mr.Paden is entitled to his opinion,I'm entitled to mine.
Mr.Gunther said the second question that he asks has to do with builder's error. I asked a question of
Mr.Simon earlier as to his definition of builder's error and now it's your turn. I realize that you made
some points with regard to it,and in your letter you cite the number of cases. I haven't read those cases,
but if you could explain your view of them for me.
Zoning Board
September 19,2001
Page 23
Mr.Lieberman said it's very simple. Builder's error is a generic term that covers where construction does
not conform to the approved plans. It doesn't matter what the reason.
Mr.Gunther said negligence or no negligence.
Mr.Lieberman said it doesn't matter. There was a case in the footnotes in my letter that was cited by the
applicant given the good faith error,that was the First Department case which is not recognized in this
department. It has not been followed in this department. If you read all the cases,they don't talk about
good faith or not good faith. They talk about the fact that construction did not conform to what was
submitted. That is clearly what happened here.
Mr. Gunther asked Mr. Carpaneto if the plans that were originally submitted to us indicated a 19 ft.
setback.
Mr.Carpaneto said that the site plan shows 19.1 ft.
Mr. Lieberman said if you read my first letter,it relates to all the colloquy that went on at the first
meeting.
Mr.Gunther asked if Mr.Lieberman would have any insight into the whole discussion about good faith
error and bad faith errors.
Mr. Lieberman said his insight is that it is irrelevant. It was quite enlightening listening to Mr. Bell
explaining about surveyors and how they take bearings and everything,but frankly it is irrelevant. The
point of the matter is they came to you with plans that said 19.1 ft. You relied on those plans and you
specifically limited the variance that was granted to 19.1 ft. What was built was not 19.1 ft.,it was closer
than 19.1 ft.and they are seeking an addition to have you legalize structures. There is no question that
steps and platforms are structures that are within 13 ft.of the rear property line.
Mr.Wexler said the question really is whether there's undesirable change. There are five points applied.
What impact does that have on the community,the neighbors,in essence. Mr.Wexler said is that the
reason why we're here?
Mr.Lieberman said yes,and asked if Mr.Wexler read ttie letter.
Mr.Wexler said what do you think.
Mr.Gunther said before he asks for additional questions or comments from the public,he just wanted to
make note of several pieces of correspondence that the Board received. He won't review letters that were
received at the prior meetings. Mr. Gunther informed those present that the Board received four(4)
additional letters in addition to those already received. One is from Patricia and Clarke Bailey of 10
Oxford Road.
Mr.Gunther asked if Mr.Simon received copies of these letters.
Mr.Simon said he has not seen one from Patricia and Clarke Bailey.
Mr.Lieberman said nor have I,by the way.
Mr.Gunther read the letter from Patricia and Clarke Bailey,which is part of the record,saying it would
be a dangerous precedent to grant a second variance in light of the circumstances,a letter from Stephen
Langan and Katherine Langan of 9 Avon Road,to register a discontent with regard to the construction
under way at 5 Avon Road,a letter from Edwin H.and Valeria T.Kaufman,of 21 Mohegan Road,asking
that the requested variance be denied, and a letter from Ann and Dave Wilson, of 10 Avon Road,
requesting that the variance granted should be strictly adhered to.
Zoning Board
September 19,2001
Page 24
Mr.Gunther asked if there were any other questions or comments from the public on this application.
Richard Seltzer, of 17 Mohegan Road, addressed the Board. He used the easel to illustrate his
presentation. He said the room that we're sitting in is 25 ft.wide from this wall to that wall. We are
living in a community where it's been legislatively decided that the distance that we're comfortable with
in this room, from that wall to that wall,is an appropriate distance to separate the structure that one
neighbor builds from the property line with an abutting neighbors. He said that an applicant came before
you and asked for a 6 ft.variance,so you agreed to let them build to within 19 ft. He demonstrated what
the distance would be. He's heard today that they want to get permission so that the steps and a platform
shall be within 13 ft. Now look at the distance that's left. Instead of what was legislatively deemed to be
desirable for neighborhood separation of structure,they're going to have just this distance left between a
property line and the structure that begins at the entrance to their house. It's not just an aesthetic piece
of structure,it's a structure that's going to invite traffic and traffic that's going to get funnelled within the
abbreviated space that's going to be left. I think in terms of what is a detriment,13 ft.is a community
detriment. I don't think that's what the legislators in this Town intended. I don't believe that with a Board
constituted as you are and approves 19 ft.,that you were thinking it was going to get cut down to 13 ft.
I don't think that that should stand.
Mr.Gunther asked if anyone else would like to be heard.
James E.Cain,of 6 Oxford Road,addressed the Board. He said that he sent a letter,which is not either
as entertaining or as convincing as Richard's presentation,but he'd like to read it anyway. Mr.Cain read
the letter expressing his opposition to the variances granted to and being requested by the applicant,which
is a part of the record and marked as an exhibit.
John F.Williams,of 4 Dundee Road,addressed the Board. He said he is the other neighbor that abuts
this property. He has been coming to these meetings since December,when original dialogue took place.
There was redesign as the appeal of the project at that time about the garage,how it was set,and there
were plaques up here, but he doesn't remember any winners. It seems to me that were inching away
toward some very serious concerns from my neighbor. I'm less affected. On the other hand,they go back
and say how did this happen in the first place? He said when the original developer of that area developed
it,there was a corner lot that was an aberration relative to the rest of it and some Zoning Board, in
granting the development consideration,was given to the unusual nature of this lot. They allowed for
original zoning variations,other than the rest of the property. That stood until the current application to
do something bigger on a much smaller lot than is available near it. I think we're beginning to see the
degradation of not only the neighborhood,if this sets any precedence,but I think of the continued erosion
well demonstrated by the actual number of sheets and the imposition it puts on my neighbors. It continues
on from December,2000 until September 19,2001,as someone earlier pointed out. The violation was
pointed out back in May/June or Spring,whenever,and it just continued to proceed. I think my neighbor
deserves a decision.
Jim Dougherty, of 28 Mohegan Road,addressed the Board. He has a question for Mr. Bell on the
practices that he described relating to very small differences in the plans for the building and very small
differences in the survey. I'm just asking,is there any sense in a project of this dimension going forward
when those discrepancies were evident? Is that what he's saying,the fact that one surveyor said this and
another surveyor said that-^4 the differences were very small. A very large,expensive project went ahead
anyway. Now the Board is being asked to verify that? That seems to me to be nuts,in my opinion. I just
can't believe that you would put up a structure of that size,on the basis of those two surveys. That's
crazy.
Mark Scheffler,of 8 Oxford Road,addressed the Board. Mr.Scheffter said I've been back at the property
and looked at the Weston's property. I can't really comment on your first variance,but after looking at
it there's a tremendous burden on the Weston's property. Increasing it now would be just a gross injustice,
as far as I'm concerned. You'd just be adding to the problem. As counsel for the Weston's has indicated,
Zoning Board
September 19,2001
Page 25
it's like a slice of bologna. I think it's like two bites of the apple. They've gotten one bite and now they
want to go back for another bite. I don't think it's right.
Mr.Scheffler said a third point he'd like to make is similar to the point that Mr.Seltzer made,and that's
that you have a 25 ft.restriction or setback and you go to 13 ft. What is this for? Are you rezoning?
This is not a Board that should be doing these things,whether in this case or any other case. If the Board
wants to rezone,let it go back to our elected representatives. I don't think that should be your function.
It's not a small variance that you're asking for and as granted. I don't think you should extend it.
Russell Pelton,of 3 Oxford Road,addressed the Board. I am aware that circumstances for the past few
years have been such that the Board of Appeals had been urged to be a little more lenient,and I think you
have been. But,there is a limit. How far do you go? You've already granted an 8 ft.leniency. We're
down now to talking about steps coming from the back of a house that are apparently not specifically
mentioned in any legislatures. But,is there any question that steps are part of a structure? I have yet to
see back steps spaced from the back door. They are part of the structure. When you take the steps into
consideration,you're down to 13 ft. One-half of the zoning requirements has not been given to the
applicants. If you toss a ball out of a bedroom window,that ball will go and bounce off the steps. Do
any of you live in a house where you can toss a ball out of your bedroom window and have it bounce off
the steps of your neighbor? Or did you have a window that used to look out on the street,perhaps there
were trees,yes,but looked out on the street,but now you look out into the neighbor's back window? How
far do you go?
Mr.Pelton said he heard it said earlier tonight that this application affects only the structures and the
_ contiguous property. Well, you have letters here and you have several of us here who are speaking
personally who have no contiguous boundary. We are concerned about the Zoning Laws. We are
concerned about the enforcement of the Zoning Laws. We recognize that there are variations in that and
that's why this Board exists,but how far do we go? You have maps showing that the steps when they're
put in will be one-half of the original. Respectively,we request that you give serious consideration to these
steps;question,how far do you intend to go? Mr.Pelton thanked the Board.
Mr.Gunther asked if there were any other comments.
Robin Weston,of 7 Avon Road,addressed the Board. She said she has pictures,which were given to the
secretary and marked as an exhibit,that might be helpful. She said that her husband,Rick,and I live there
with our two children. As I believe you know,our property line adjoins the rear yard of 5 Avon. As Mr.
Lieberman has stated,we strenuously object to any variance that would either allow the building or the
steps and platform to extend beyond the 19.1 ft. limit that was clearly established by this Board in
December. We object,because these encroachments-have a direct and negative impact on our home and
property. We object,because what you are being asked to approve is wrong.
Mr.Weston said unlike last December,when we expressed our strong concern over how we thought the
proposed addition would affect us, the concerns we express to you tonight reflect what has actually
happened as a result of this addition.
Ms.Weston said prior to the construction,while our home and 5 Avon came fairly close to one another
on the Avon Road side of the common property line,the two houses got progressively further apart as you
moved towards Dundee Road. Additionally,the height of 5 Avon decreased as you approached Dundee.
There was a rear access to the house which was located near the Avon Road corner,roughly opposite our
den. There was open space available between the two houses,which allowed sound to disperse up and out
and that which did not,was directed into our den,a room which we use perhaps an hour each day.
Ms.Weston said as a result of the addition,a significant amount of the open space both in height and depth
has been lost. Sounds generated in the rear yard at 5 Avon are now trapped,if you will,by virtue of the
height and design of the new construction. Most importantly,the focal point of activity and noise in the
rear yard,the platform and steps,is now not opposite our den,much more intrusively opposite our master
Zoning Board
September 19,2001
Page 26
bedroom window. Over the course of the construction,we've experienced the negative affect of these
changes,as normal conversations in the rear yard or a radio playing from an open family room can be
clearly heard from our home. Unfortunately,as the neighbors have not as yet moved into the house,they
have not experienced it and cannot relate to it. What has happened to us as a result of this construction,
is that we now rarely open the windows on this side of our house. The impact on us is clear,direct and
damaging.
Ms.Weston said that the owners of 5 Avon have asked that you dismiss our concerns and grant them the
variances requested. They argue that far from having any negative impact,the addition as constructed in
their estimation improves both the neighborhood in general and our house in particular.
Ms. Weston said that the applicants state that the portion of the building constructed in excess of the
variance,including the steps and platform,is not visible from anyone other than ourselves. This is simply
not true. The area in question is most certainly visible from Dundee Road. Its visibility has caused many
neighbors,other than ourselves,to be concerned about this very project,a great many of whom have taken
the time to express these concerns to you as a Board either in writings or at these hearings. They clearly
do not feel that this project benefits our neighborhood.
Ms.Weston said the applicant further stated the addition,as constructed,is a particular benefit to us at 7
Avon. This assertion is not only disingenuous,it's offensive. We have lost privacy,sunlight and solitude
as a result of this construction. There is no benefit to us.
Ms.Weston said the property owners assert that because the rear entry door is now 5 ft.further from the
• property line than the previous door and a nonconforming deck has been removed,we have benefited. But
the test here is not simply the absolute distance of these structures from the property line,but more
importantly,how these structures are used and how they affect us and the use of our home.
Ms.Weston said what the applicants refer to as a nonconforming deck which they removed to our benefit,
was in fact a conforming wood platform built at grade which served as a ground cover in an area too damp
and too shady to grow grass. For anyone who doubts that,I have a Certificate of Occupancy to back it
up. It did not function as a living area or to direct traffic,as would be the case from the new platform and
steps. Similarly, the new rear door,while 5 ft. further from the property line than the old door, is
functionally much more intrusive given that the new door is located opposite our bedroom windows.
Ms. Weston said the applicants argue that the variances be granted, because there are no feasible
alternatives. Again,we disagree.
Ms.Weston said the rear yard is already accessible by a new door in the dining room,to which we have
absolutely no objection. The family room area is accessible from an entrance in the garage. To the extent
that the applicants feel they need a third door for this area,it would seem possible to locate this on the
front corner or side of the house,where it would not encroach on a neighboring property. But,to argue
as they have that the lack of this third door in a location that has a clear and detrimental impact on a
neighbor is in fact a hardship to them,is absurd.
Ms.Weston said that Mr.Lieberman has counseled us that as a matter of law,the costs associated with
curing a violation such as this should not factor into the decision to grant or not grant a variance,and yet
it seems somewhat hard to contemplate asking someone to alter something which has already been built.
It seems wasteful and perhaps even mean.
Ms.Weston said the applicants argue this very point,citing the hardship they would endure if the variances
they request are not granted by this Board. They state this problem occurred because of a good faith error
related to the use of an inaccurate survey and as such,they should be relieved of responsibility. However,
in this case,the critical error for your consideration should not be reliance on an old survey. The critical
error is that in learning of this problem last spring,the applicants did absolutely nothing to correct it. They
continued to build,six days a week,taking a structure,which at that point was plywood and studs into a
Zoning Board
September 19,2001
Page 27
fully finished structure. Those are the pictures you have before you,the one you have of stairs,the
plywood studs, the gray picture is where it was in June when they came before you asking for a
clarification,the fully painted structure is where they are now. For this,they should bear responsibility,
not be excused by the granting of an additional variance.
Ms.Weston said thinking back to the hearing last December and the Board's deliberations at that time,I
seriously question,if presented with the information that the applicants have made available to the Board
tonight,that the building comes within 17.9 ft.of the property line,the steps and platform to within 13
ft. and the oversized window well to within roughly the same distance. If this Board had had this
information in December,would this variance have been approved? Arguably this question is moot,as
this information was not clearly made available to the Board and the variance was granted. What remains
troubling however,is that the applicants now request additional variances for a plan they maintain has
never changed since December. If the plan never changed,why did they fail to disclose so much material
information to you in December?
Ms.Weston said while this question remains,there is no question that the terms of the variance granted
by this Board have been violated. To remedy this violation,someone must bear the expense. As Mr.
Lieberman stated,this application affords the Zoning Board a somewhat rare opportunity to observe and
perhaps mitigate the impacts created by a variance that was previously granted. If you grant additional
variances to the owners of 5 Avon,please make no mistakes,the expense of the remedy will be ours.
Please put the burden of remedy where it properly belongs,with those who failed to comply with the terms
of the variance you granted in December. Thank you.
Mr.Gunther asked if the Board can have a copy of that,which was provided.
Mr.Gunther asked if there were any other comments from the public on this application.
Michael Marks,of 22 Mohegan Road,addressed the Board. Mr.Marks said he sent a letter to Board that
wasn't mentioned. It was sent in July to a Board meeting when the variance for clarification was to be
heard. He would just like to be sure that the Board has that. He won't ask Mr.Gunther to read it,but
he would like to summarize the point that he tried to make there. His observation is that there's been a
long series of encroachments on light and air in our Town,referred to by several people here. You,in
good faith,exercising your judgement,but the affect that it's cumulative,we lose light and air here every
time these judgements occur and it's usually at the expense of A neighbor. What's happens is neighbors
are then up against neighbors. If you look at that list of 14 inches of notifications that you have tonight,
you will see one after the other is minus so much,minus so much. It's all taking away. It's all negatives
in terms of the environment we live in. All I ask you to do is,I ithought I was ill-advised that you granted
this request in the first place,ameliorate the problem,don't mike it worse. Please use your judgement
that way to not approve this request.
Mr.Gunther informed Mr.Marks that he did receive his letter,read it at the last meeting and said that Mr.
Marks also attached a letter to Supervisor O'Keeffe at the time..
Mr.Marks thanked Mr.Gunther.
Ms.Martin said that she understands very much what he's saying. The fact that the Zoning Board is here
to grant variances,if we were going to have a plus number in the calculations,we wouldn't have to act.
Mr.Marks asked if Ms.Martin was speaking to him,at which time Ms.Martin said yes.
Mr.Marks said you can grant them variances or you can deny them. It's a question of how you exercise
your judgement and what's the objective that we are seeking here. We live in a place that has light and
air that we love. One of the things I cited in my letter to the Supervisor was my first look at New York
a drive trough the cemetery between LaGuardia and Manhattan where every grave is next to the next grave.
Zoning Board
September 19,2001
Page 28
Further on in Queens,every house is next to the next house. We chose not to live there. We chose to
live here. You're making this place Queens.
Ms.Martin said she shouldn't have said our function is to grant them,but our function is to consider them
in a plus or minus way. We have to weigh all the benefits and we try to do that. In the years that I have
sat on this Board,every single one of us here is very much focused on our function. We don't take our
function lightly. We certainly don't act arbitrarily or without due consideration to everybody concerned.
John Williams,of 4 Dundee Road,said don't you get angry when you've been had?
Mr.Wexler said you know what gets me angry? Thinking about this for a week know. We had a tragedy
in New York of a magnitude that no one could imagine at all and you're fighting over that much area. So
many people are now hiring lawyers over that much area when there are things in my mind that go way
beyond this and I'm spending hours on this. Nothing gets me angrier.
Mr.Williams said he is angry too,and I hope you don't consider my anger...interrupted.
Mr.Wexler said I've sat on this Board 14 years,with a lot of difficult problems where people come here
with needs. We have a community that zoning was put upon. A community that was built up already.
This lot is an irregularly shaped lot. It offers your community a great corner there. It is not built up 30
ft.from the property line in the front,like most homes are. It's a lot of space there. I'm not defending
this. The point is there are houses on properties that have irregularly properties that have problems.
People have a right to enjoy their property. We analyze this and we spend a lot of time. This is not a paid
position. We spend a lot of time on this Board to look at all the objects and how it affects our community
and what is the impact. We say yes and we say no to applications. That's all I'm trying to tell you. We
spend a lot of time here.
Mr.Williams said I'm not suggesting you do not,but have you heard from anybody supporting this one?
Mr.Wexler said did we vote on this yet?
Mr.Williams said he doesn't know.
Mr.Wexler said O.K.
Mr.Williams said but don't get angry with me about what happened down at the Twin Towers. It's
repugnant to use that reference to me in a totally unrelated meeting which by a choice of you was scheduled
for tonight,not by me. It's been deferred since January on these,successive things. Don't take your anger
out on me about what happened down there.
Mr.Wexler said I'm not taking my anger out on you.
Mr.Williams said yes you are.
Mr.Winick said we have a big docket here and suggested what we should do what we're here to do. Let's
do the work. Everybody here probably has their own idea about zoning and what it's good for and what
it's bad for. Let's just do what we're here to do.
•
A gentleman in the audience asked Mr.Gunther if he might have an opportunity to speak.
Mr.Gunther informed that gentleman that the end of the public'comments,he was going to come back to
both you and Mr.Lieberman to see if there were any remaining comments. We have one more person
from the public who wishes to speak and then we'll go that route.
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Zoning Board
September 19,2001
Page 29
James Cain from 6 Oxford Road,spoke. He said we do appreciate what you do,but there has been no
support for this project from the immediate neighbor. I know you're trying to do the right thing for the
applicant,you try to do the right thing for the community,but we are the community. We are this
immediate community,and I would hope that you take that into consideration.
Mr.Gunther said he thinks that that is very evident.
Rick Weston,of 7 Avon Road,appeared and said this will be real quick,I promise. Trying to juxtapose
this hearing a week after world trade is awesome. The point of that is to say,can you believe it. This
has been going on since December and the timing is horrendously unfortunate. I would agree with you.
In the scope of human life,this is unfortunate. This is not what we're talking about. We continue to point
to this happy little triangle and say that's all we've got,but half of this discussion has been on steps and
the platform. Half of this discussion has been on the intent of the Zoning Board. Half of this discussion
has been on what it means to preserve a community and to reduce that down to saying,it's this little thing,
how can all you people be wasting your time,is horrendously offensive. You spend a ton of time doing
this.Nobody would deny that,so please don't deny the concerns of people here and don't trivialise them
because of horrendously unfortunate timing and horrendously unfortunate events. Thank you.
Mr.Simon said he would just like to put up one of the surveys,so he can illustrate some points. He really
has to start from the subject of builder's error,and unfortunately there's going to be no way around your
reading the cases on this. But,I do want to emphasize and suggest to you very strongly that you will find
as you read those papers that it was the negligence of the builder that was the linchpin that turned those
cases and got the application denied. The Badish case,which we cite,stands for the proposition that good
faith and an honest error,not negligence,should beget sympathy. Comment was made that that case is
not recognized in the Second Department. There was no support for that. It's good law and I suggest to
you to read it.
Mr.Simon said the use variance argument I don't think bears any comment. I'm going to move right past
that. There was a suggestion made of a settlement offer, that if the door was simply built over and
eliminated,then the opposition would be withdrawn to the comer of the building. I don't know what
detriment that door being there imposes. I haven't heard an answer to that. I think it is simply the
neighbor's suggestion.
There was some disturbance at this time,at which time Mr.Simon said he was respectful of all of you.
A lot of you are my friends and neighbors. I live in the neighborhood,too. I'd ask that you give me the
same respect I showed you.
Mr.Simon said they just don't want it. When the problem first surfaced,no one knew what was going
on,what was wrong. To this day, and I've told you this right from the first,we don't know if Mr.
Spinelli was right or wrong. We don't know if Mr.Boumozos was right or wrong,but we think we did
the right thing in taking the most conservative viewpoint,coming here to you,seeking relief,not playing
dialing for dollars by going to get more surveys and confusing the issues. We think we did the direct and
appropriate thing.
Mr.Simon said when the Boumozos survey came in,frankly we didn't know what we were dealing with.
At that point,the building was framed and enclosed. We didn't know for some period of time,as Mr.Bell
has told you,exactly what the source of the problem was. The steps were left exactly as they were.
They're unfinished. For that reason,I question some of the comments about the door and the noise that
people perceive,because that door has never been used. It can't be used. If you step out the door,you'd
step into a hole. The steps are incomplete.
Mr.Simon said there has surely been construction noise this summer,and construction noise is something
that is an intrusion on all of us. It's regrettable,I think it's unavoidable,but that will be over very,very
shortly. That door serves a very important purpose. It exits the kitchen through a mudroom and that exit
has important safety reasons. A kitchen is an area where fires can occur and egress through that door is
Zoning Board
September 19,2001
Page 30
important for safety reasons. That door was on these plans from the"get go"and I should point out if
worse comes to worse and you deny the application entirely and we have to cut off this triangular portion
on the corner of the house. The door is still there. It doesn't solve the door problem.
Mr.Simon said we were accused of taking an all or nothing position. We haven't done that. The grade
in the back yard of the applicant is lower than the grade of the neighbor's. By simply raising the grade
in our back yard to meet theirs,we would obviate the need for several of these steps. Hence,obviate some
of the penetration into the back yard. That was rejected,unfortunately. We thought it was a pretty good
solution,because we're dealing with a matter of feet and each foot we save is a step in the right direction.
We thought that was pretty constructive. I don't think you really have a precedent to be concerned about,
but that does revolve around your reading of those cases,because if this is the good faith case that the
Badish case is,they come along once in a very,very rare amount of time. Builder's error cases happen
all the time. I sat for ten years on the Board in Larchmont and lord knows there was a flood of those,but
not very often when someone came in where the builder built exactly as they're supposed to,where the
architect did his job exactly as he's supposed to and where two surveys,for reasons we can't explain,are
simply at variance. We don't know which one's right or wrong.
Mr.Simon said the window well,I suggest to you,doesn't require a variance. It's a retaining wall,clearly
countenanced in the code.
Mr.Simon said with regard to the stairs. We spoke earlier about the stairs in light of this anomaly in the
code and I suggest to you that,both based on what's been done in the past and based on a logical extension
interpretation,you could well read that to permit,but you haven't embraced that argument. I think that
that very code provision which says stairs can penetrate into the side yard and into the front yard,is the
best reason in the world to allow a variance for stairs to penetrate into the back yard. It's consistent with
the code that someone has obviously thought about. I suggest if this code was looked at and thought about
further it would be amended,but that's guess work.
Mr.Simon said that no one here is insensitive. This is a terrible situation. We don't want to be here.
The Bermans don't want to burden their neighbors. No one tried to build something and sneak something
by. That building is built exactly as it was on the plan. This is that rare instance where an honest mistake
happened.
Mr.Simon said I'm not certain where the Board's concerns lie.,We would certainly bend over backwards
to address your concerns,to try and find a sensible way of resolving this problem and preserving good
neighborly relations. I spent ten years on the Larchmont Board doing that,month in and month out,so
that we are open to suggestions. If we can get some sense of the Board's feeling,we are certainly
prepared to listen,discuss and see if we can't work something Out to resolve this. We really think we're
talking about a corner of the building that is entirely minimal,and that chopping it off is not going to
benefit the neighbor. It's going to be a terrible,terrible detriment to us to have to cut that off. The stairs
are just a logical extension coming out.
Mr.Simon said I do want to point one thing out and that is this.Ml Here is your property line,so that you've
got a pie-shaped back yard. This is the closest point to the neighbors. This is where the deck was. As
a result of this construction,the deck is gone. The deck was p living area. The Bermans are here. If
there is any debate about that,they'll tell you. They had a table out there and they lived out there. The
door to the back yard was here. It is being moved to here. It faced the neighbor much closer to the
property line. It has now been turned,so it doesn't face the neighbor.
Mr.Simon said there was a play set in the back yard. The play set has been removed,as a result of this.
The net effect of all this is,I think,less intrusion on the neighbor. Certainly that was the intent. We'd
love to get some sense of the Board and what you're thinking. We do not want to make this a problem
of great magnitude,particularly in the week that's sensitive to everybody here. Thanks very much.
Zoning Board
September 19,2001
Page 31
Ms.Martin told Mr.Simon that she has two questions. I'm puzzled and honestly don't understand in April
or May,whenever,when you realized that there was this error and there were two different surveys,I
honestly don't understand why you didn't get another survey at that time and try to clarify that instead of
just throwing up your hands. The other question is,Exhibit#5 and#6 in the package that was submitted,
received August 15th,I believe show the same survey that you have put on the easel there. However,they
do not show the stairs. They show the window well. I don't understand why it has been left off,because
frankly that is one of the most sensitive aspects of this application. There has been a tremendous amount
of discrepancy in the plans submitted regarding the stairs. We were given things with stairs and without
stairs. I frankly find your inconsistencies with respect to the submissions very disturbing,. If you want
to explain that to me,I'd be happy to hear that.
Mr.Simon said I'm going to tell you that the exhibit is a survey. I didn't prepare it.
Ms.Martin said it supports exactly what you put up on the Board,unless I'm reading it wrong. I have
a piece of paper saying 2001 survey from Robert Bell,Architects,with no stairs. I think everything else
is the same.
Jeff Berman, of 5 Avon Road,addressed the Board. Mr.Berman said that is not a survey. It is an
architectural drawing that is meant to illustrate the effect of using different triangulation forms from the
2001 survey. The other exhibit,labeled 1995 survey,is another architectural drawing meant to illustrate
something else,they're not surveys.
Ms.Martin said she doesn't care what they are,but they were presented to us in the application. She
apologized for interrupting,and said but I don't understand. We see them here,but in the plans that were
submitted,they did not appear. She asked if he would like to come and see what was given to the Board?
Mr.Berman said he asked that those drawings be prepared to show the affect on building position. I asked
that they be prepared as simply as possible.
Ms.Martin said the window well is there.
Mr.Winick pointed out to Mr.Berman that those are described as as-built drawings in your submission.
Mr.Berman said,in fact,the stairs are not built.
Mr.Winick said he's walked on the stairs. They're there.
Mr.Simon said there's nothing but a frame and a hole,with a bunch of construction material.
Mr. Winick said he would expect an as-built drawing to show the actual conditions on the site. If
somebody has created a structure,even if it's not completed,I would expect that footprint to be shown.
After fifteen years of construction litigation,that's what I think an as-built drawing is. I could be wrong,
but I don't think I am. I think it's an unfortunate use of the term and we've been suffering with the
submissions that we've done here, which could be viewed as just convenience. I'm not drawing an
inference yet,but it could be viewed as convenient. It could be viewed as sloppy. It could just simply
be viewed as error,but I'm very concerned about the fact that I don't have a clear unified picf- -from
the architect that graphically presents the conditions on this site. Misuses, in some cases, turns
...inaudible. I think I have a very clear...inaudible. We're struggling here,because we're getr;"g very
poor information.
Mr.Simon said that maybe the architect should address that.
Mr.Bell said he thinks the place that it's accurate is on the survey. The survey gives the exact distance
and shows exactly what's built. That's exactly what is on the ground,testified by a third neutral party,
Zoning Board
September 19,2001
Page 32
not by any other...nobody tried...he has a seal describing this is the exact. He's gone,measured it and
this is what appears. If you look at that,it shows the stairs extending out. These other drawings were to
show how the angle varies...inaudible. I'm sorry that they didn't have the stair on it.
Mr.Bell asked to point out two issues that were raised here. By the request of the owners next door that
we eliminate this door,in order to make them happy I would like to point out two things. They said you
could come to the mudroom by going through the garage,which of course if you went through the garage
you would have to go through the garage,up through the entrance hall,through the living room,through
the dining room,through the study,to the mudroom or around this way through the kitchen,around to the
mudroom. To use the mudroom through the garage door,is not a logical sequence. The other suggestion
that somehow that these french doors could be used in place of this door on this side,again would require
P2,and the neighbors have talked about going passed them. Now they would have to come clear
around here,walk through the dining room and through the study,in order to get to the mudroom. The
sequence doesn't make any sense.
Mr. Bell said the other thing that we've pointed out, and I believe there was a letter written to the
neighbors offering to eliminate this concern,the person was moving the display forward and backward,
remember these steps are 6 inches high each of them. They're not a wall. We had offered to remove two
of these treads,which would push this back to half the distance that extends right now from the edge to
the owners and they rejected that. I think in good faith we've attempted and we suggested to the neighbors
ways that we can move it back. We're open to redesigning it. We don't want to encroach in a way that's
inappropriate. On the other hand,we've built a house. We've been aware that this was the mudroom,
and this was going to be the entrance from the outside to the house. To require the owners now to walk
through their living room or up their stairs,through the hall,living room,dining room and the study to
get to the mudroom,is a tremendous request.
Mr. Gunther informed Mr. Bell that he should have thought of that at the time when the error was
discovered.
Mr.Bell said first of all the error,there's no conclusive evidence that there is an error and you asked why
didn't we get another survey. Now,what if another survey had been the third survey,then what would
we do?
Ms.Martin said the house is not built on water,it's built on land. The house hasn't moved,so I don't
understand why an accurate survey cannot be delivered to us. There's got to be an answer. Maybe you
haven't gotten the answer,but the answer is this,unless....left hanging.
Mr.Simon said I guess the point is that we..interrupted.
Ms.Martin said you're going to tell me that no surveyor can come,and that there's no right answer to the
placement of this house?
Mr.Simon said I can tell you this. There is no aspect of this more troubling to us than that. Two well
known surveyors in the area have come to different conclusions. We can't explain it.
Mr.Winick said he has a different question about the survey. You were using a 1988 survey that was
•
accepted by the bank at the time of the closing. The second survey,the Boumazos survey,was drafted
•
in May of 2001. He asked if he is correct,that those are the two surveys that show the discrepancy.
Mr.Bell said that's correct,with the notation that the'88 Spinelli survey was updated in'91.
Mr.Winick asked why was the Boumazos survey commissioned in 2001? What was the reason for it?
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Zoning Board
September 19,2001
Page 33
Mr.Bell said the reason the Boumazos survey was initiated was that the neighbors came to the builder and
said,we're disturbed about the stairs extending where they're being built. At which point we stopped
construction of the stairs and never proceeded any further. They're exactly from that point. They've never
been built any further. The builder himself,on his own initiative,asked for a second survey which was
done and it came out different. That's where we are. If we called back the first surveyor,he may tell us
that actually there's no error whatsoever. That's the dilemma we're in. Here's what we've done. We
don't know the answer here. We could get ten surveys. I've spoken to Mr.Carpaneto about this. It's
true that you often have surveyors,is this not a fact of life in the building industry,that come up with
different surveys for the exact same property. You've had this issue before,before the Board and there
are discrepancies.
Mr.Carpaneto said yes.
Mr.Bell said when there is a discrepancy,isn't this a normal procedure to go back and try to clear that
up by asking for a variance to correct it?
Mr.Carpaneto said that's the way it's done.
Mr.Bell said isn't that what you suggested that we do when I called you and isn't that exactly what we
did?
Mr.Carpaneto said absolutely.
Mr.Bell said we followed the directions of the Building Department. I called him and said should we stop,
what should we do? Mr. Carpaneto said you should come to the Board and ask for a variance. This
happens. Surveyors are different.
Mr.Winick said this is the best direct examination he's ever heard from an architect.
Mr.Wexler asked keeping the structure at 17.9 ft.and eliminating the stairs,how would you get into that
door.
Mr.Bell asked if he couldn't build any of these steps?
Mr.Wexler said within the 17.9 ft.
Mr.Bell said this would mean that we would end up with a line running along there. If we didn't have
a platform or if we shrunk the platform,we could perhaps build two steps here. We could raise part of
the land and we could swing it off. There might be certain additions. We offered to look at those options.
We are not opposed to solving this in a neighborly manner,to stop the intrusion of the steps being closer
if there's a way that's logical. The problem that we're a little bit driven by and the simple thing would
be to take that line,get those steps,make them skinny as they come down,because the property is going
along the edge there. The problem with that is that the window wells of the basement,the steps would
certainly step in front of the window. I suppose if that's the only way we're going to be allowed to get
access we'll have some steps in front of the window,but it would be unfortunate.
Mr.Bell said the other way you could do it is to raise the earth to that level and eliminate the stairs totally.
We could build a retaining wall across here and we could take those steps out. We could make that an
earthen retaining wall,which we'd have the right to do,and we could build steps in the earth outside of
it. You technically can do it without having to have an attached pair of stairs by changing the earth grade,
which we could do without a variance.
Mr.Gunther asked if the Board members have any other questions. There were none.
Mr.Gunther asked Mr.Lieberman if there is something else he would like to say.
Zoning Board
September 19,2001
Page 34
Mr.Lieberman said he has two points. He doesn't want to belabor this any more than it has to be. He
can't speak to the impact of that deck or the use that was put to that side deck,other than to say that it is
clear from the survey that it's further from the windows that my clients are objecting to than where it
exists. I don't think,frankly,that their attorney can speak to that either,so I'm not going to speak to it
and I don't think he should. I don't think you should accept his self-serving statements on that issue. On
the issue of the fact that steps are permitted to encroach into a side and front yard, therefore being
someway in shape of form an argument that you should grant a variance into a rear yard,that is totally
opposite from what you learn in law school. The maxim is that you include certain things. If you exclude
them, they were intended to be excluded. The mere fact that the Legislature contemplated granting
permission for steps to encroach into a yard and said you can encroach into a front yard and you can
encroach into a side yard,meant that they thought about it. The fact and the legal presumption is,and I
think your counsel will tell you this,that if they excluded that,that meant that they intended to exclude it
and they intended to not to permit an extension into that yard.
Mr.Lieberman said with respect to all the plans,and I can show you plans we well,they showed the steps
coming straight out for the extension. There are some surveys or plans that you were given that don't
show the steps at all. You have plans that show them extended. The problem is,as one of your members
said,the plans are submitted by the applicants. If there's any ambiguity here,it's caused by the applicants.
They gave you a plan that showed a 19.1 ft.setback for the previous variance. The plan that showed,
which they're contending we're relying on,an extension extending out 61/2 ft.,didn't show a setback. So
if there's any ambiguity here, it's caused by the applicants themselves. Every plan they submit is
contradictory to each other.
Mr.Lieberman said lastly,on the issue of builder's error which I will to give you and read to you,because
it's only two paragraphs long,the latest case in this area. First of all the Batish case that counsel relied
on is a Supreme Court case,which is a lower court. There are three levels of courts in the State of New
York. There's a trial court or Supreme Court to the Appellate Division and there's a Court of Appeals.
The Batish case,which counsel talked about,was a lower court case that was specifically rejected by an
Appellate Division case in the Second Department. I will read to you the latest case in this department.
It's Monte versus Edwards. It's a 1999 case."The petitioner hired a contractor to install a pool and a deck
on his property. When the job was completed the petitioner discovered that due to the contractor's error
the pool was not located in the proper position and that it violated the 30 ft.setback requirement of the
Town of Shelter Island. The petitioner therefore sort a variance asserting he would sustain economic
hardship if he was required to relocate the pool. The town refused to grant the variance,but the Supreme
Court annulled that determination. We reversed. The Appellate Division reversed, meaning that they
reinstated the denial of the variance. Under the cert,,"under the circumstances of this case,the Zoning
Board's determination to deny the variance was neither a legal arbitrary law and abuse of discretion citing
all the cases and builder's error. Notice,no mention of good faith,no mention of negligence. The only
consideration here is that you granted a 19.1 ft.variance and what was built did not comply with that.
Under the circumstances,under the case law,this variance should be denied,has to be denied.
Mr.Lieberman said we've offered to go along with granting the variance,provided that you mitigate it by
removing the door. They have said no. Notwithstanding the fact that they already have two entrances into
the house,aside from the front door of the house as well,so that's three. It is the applicant's desire for
a fourth entrance into this house,caused by there refusal to rectify the situation after the violation was
discovered. That is their difficulty to he balanced again,the noise and the impact that that noise has had
on my client. Mr.Lieberman said he doesn't know if you want to hear from my clients on one issue,but
they have advised me that the noise they're complaining about is not the construction noise. It's the noise
of people going into and out of that door. The reason is that before you had a flat,straight line,so
whatever noise going into wherever that door was,was dissipated in both directions. Right now you have
a door that's in a corner,which is going to direct that noise directly at my client's living quarters. That
is the reason for this dispute. You have it within your power to solve this problem. Even the applicant's
explanation,says,oh,they can possibly construct stairs within the 17.9 ft.variance. They don't have a
17.9 ft.variance. They only have a 19.1 ft.variance. In order for them to get the 17.9 ft.variance,you
Zoning Board
September 19,2001
Page 35
should require them to mitigate the impact of that variance. If they refuse,deny it because they have it
within their power to do that. They've refused. It's now up to you.
Mr.Simon asked Mr.Gunther,since there was a question raised by Mr.Lieberman about my ability to
address usage in depth,notwithstanding that the homeowner is sitting next to me, may we allow the
homeowner the privilege of addressing that?
Mr.Gunther said at least for me I don't think that that...inaudible by any other Board member.
Mr.Winick said there's nothing he needs to hear anything on.
Mr.Gunther said the only issues he has concern with,at this point,would be the removal of the door.
Mr.Gunther said you raised the question before about doors. You don't understand why the neighbor
needs to have the door removed. I think Ms.Weston got up very clearly and eloquently described the
impact of the door, it's positioning of the door and how noises travel to their property. He said Mr.
Lieberman went through it a second time. If you need a third time,I'm sure someone else can get up and
describe it again. That's the reason for the door request to be removed. Either you'd like to address it
or not.
Mr.Simon said he certainly hears what they've said. The only thing I can say in response to that is the
door very simply hasn't been used,can't be used.
Mr.Gunther said that's not what the question at hand is. I don't think you live there,nor does anyone else
at the moment. But there's lots of traffic going through and every time people go through the door,I'm
getting the distinct sense,having walked through the property a couple of times myself. There's a tendency
where the wall is,on any property,when you're standing in a corner a small amount of voice is going to
travel a great distance. The question for you is,removal of the door. Either you want to address it or you
don't want to address it.
Mr.Simon said let me make a suggestion that is in the nature of a compromise. We feel the door is very
important as an egress from the kitchen and to use the mudroom.%What if we were to leave the door,take
the staircase turn it around,eliminate the window well that the neighbor's find offensive and run the stairs
down along the side of the house.
Mr.Gunther said he doesn't think you've been hearing what the request is,either maintaining the door or
removing the door. I think that's what Mr.Lieberman and Mr.iBell is saying.
Mr.Wexler said he thinks what he said is the location'of the door and asked if that's correct,because of
the angle in relationship to the door.
Mr.Lieberman said location in that corner,no matter which direction,either this way or that way.
Mr.Wexler said that's right,it's in one corner.
Mr.Lieberman said there are two si_'cs to a corner.
Mr.Wexler said but one corner reflects off the wall.
Mr.Lieberman said coming into that door is going to be in a corner.
Mr.Gunther said if you're coming out of the door facing this way or facing that way,it's still going to
carry the same amount of traffic.
Zoning Board
September 19,2001
( Page 36
Mr.Wexler said that when Mr.Lieberman pointed out that because of the relationship of this door and
you're relationship to this wall as a corner,the sound will be magnified. When the door was on this wall,
it was acceptable.
Mr.Lieberman said Mr.Gunther is exactly right.
Mr.Wexler said he's just repeating what you said.
Mr.Lieberman said I'm not going to quibble over interpretation of what I said. He said that Mr.Gunther
is absolutely correct. I was addressing where it is now. If you want me to address the possibility of
moving it the other side of that corner,I will address it. He reiterated that Mr.Gunther is exactly correct.
You're directing people upstairs and into a corner,no matter which corner you're in.
Mr.Wexler asked what's this over here that's not on a corner?
Mr.Lieberman said he will discuss it with his clients. I don't know if that's even closer to the property
line. That's in the area that's in violation now,is it not?
Mr.Wexler said I'm just asking a question about sound. You said that the reason it was objectionable as
the prior was not objectionable,was because it was in a corner and the relationship of that further down
it was closer to the property line because it's a diminishing property line.
Mr.Lieberman said you forgot the second part of what I said,which is that when it was there previously
with the deck,it was no where near my client's living quarters where this is.
Mr.Winick advised Mr.Lieberman to talk to your clients because I think this will save you a trip back
and forth. Ask them also what opinion they have about how the steps should run in this theoretical
placement of the door,so that we can deal with it all at one time. What were talking about is if you move
the door to the location that Mr.Wexler is suggesting. Mr.Wexler didn't ask you to talk about the fact
that somehow there would have to be steps.
Mr.Lieberman said very simply,the steps would have to come out even further than these are now.
Mr.Wexler said you can grade the land with no steps. You can do that,I just want to understand.
Mr.Lieberman said regrading the land up brings the noise even further up closer.
Mr.Gunther called for a five minute recess at 11:05 p.m.
The meeting resumed at 11:20 p.m.
Mr.Gunther said before starting again with the current application,I'd just like to make note for those
other individuals who are here. I realize we have a full calendar and there are several other cases waiting.
We will hear every one of them. I do expect us to be able to handle the other cases fairly judiciously.
With most of them,I think,we can probably get through them fairly quickly. If you're patient and are
willing to hang in with us,we will hear your case as well. .
Mr.Gunther informed Mr.Lieberman where we left off before was you wanted to consult with your client.
Mr.Lieberman said yes,Mr.Wexler suggested a solution by which the door would be placed in the rear
of the house which would place it approximately 41/2 ft.closer to the property than it presently exists,and
in an area of the addition which is completely illegal. So,what Mr.Wexler is basically asking my clients
to do,was to bid against themselves in a situation where the applicants,by their own actions,have violated
both the code and your determination based in your variance and now wants my clients to endure moving,
not only the door 41/2 ft.closer but the traffic approaching the door,because in order to enter that door
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Zoning Board
September 19,2001
Page 37
you would be coming in from the rear now and that would,just as before with respect to the window well,
be forcing traffic to go even closer. Mr.Lieberman said the answer to your question,Mr.Wexler,is no.
But,it still remains a matter of a fourth entrance versus the impact on my neighbors. That's the balancing
act that you are required to make.
Mr.Simon said there was no response to the suggestion that I had made. The corner is there in any event.
Clearly a door and stairs exacerbate that,but the corner stays anyway. The door can stay. The problem
is the stairs. Assuming that the earth can be built up,the stairs can be avoided and you have the usage
there. My suggestion was since the window well seems to be problematic,we'd be willing to eliminate
that,turn the stairs so that you have much less encroachment into the back yard and you eliminate the
window well.
Mr.Lieberman said the problem with that,of course,is that the corner itself is illegal.
Mr.Simon said you have a triangular portion on the corner that's illegal,perhaps assuming the variance
will be granted,and that can be chopped off. But,that corner,if it is a sound reflected,it remains. That's
not going to change. Chopping off the corner isn't going to make a difference.
Mr.Gunther asked if Mr.Lieberman was finished,at which time he replied yes.
Mr.Gunther asked Mr.Simon if he was finished.
Mr.Simon said only to ask if there's a response to my compromise offer and other than that,thank you.
Mr.Gunther said you're very welcomed.
Mr.Gunther asked if Board members have any other questions.
Mr.Wexler asked if you took off that corner,what would the structure look like?
Mr.Bell said I don't know yet.
Mr.Wexler said if you cut off a comer,the roof would have a little different shape than what's been built.
The door will remain.
Mr.Bell said we could figure out how to do it. We'd apply some imagination to it. It could be done if
it had to be,but I think it would be absurd.
Mr.Wexler said that's now what I'm thinking. • )
Mr.Bell asked how would you do it,structurally? We'd minimize it. We might be able to do some
plywood across there,and then just shingle it or something like that. It's maybe three-quarters inch thick,
a very minimal thing,and move it an absolute least amount of space inside the house.
Mr.Wexler asked Mr.Lieberman,from your points of view,that the door would remain in the same
location,the structure will look a little strange and it will be 19.1 ft.away from the property line.
Mr.Gunther said that's not what Mr.Lieberman said. I'll let Mr.Lieberman speak for himself.
Mr.Wexler said he's just saying this is what would happen to the structure.
Mr.Gunther said no,get rid of the door. The applicant is asking to mitigate the sound and....
Zoning Board
September 19,2001
Page 38
Mr.Wexler said if they cut back to 19.1 ft.,eliminate that one triangle,the door still stays in position
because it doesn't get affected. Just ask him what would happen.
Mr. Wexler said you can do it. The use is still there. The corner gets chopped off, the stairs are
eliminated and the building looks strange.
Mr.Bell said and that's legal.
Mr.Gunther asked Mr.Wexler does that mitigate the impact. I could care less about specifics of the
amount of space of the corner,but the first purview is to mitigate the impact of the variance. If the door
is what creates the noise and the traffic...Mr.Wexler interrupted.
Mr.Wexler said we approved the plan with a door at 19.1 ft.from the property line.
Mr.Gunther said it wasn't built that way.
Mr.Wexler said that's right,it wasn't.
Mr.Gunther said you have an opportunity to provide a mitigating element...Mr.Wexler interrupted.
Mr.Wexler asked without the variance,how much traffic goes through that door?
Mr.Gunther said you're never going to know how much traffic goes through that door. All you know is
that how they...inaudible.
Mr.Wexler said in an environmental,residential structure,I don't fmd that to be objectionable. That's
my opinion. Most houses have side doors. Almost all houses have side doors in 7.5,R-10,R-15 and R-20
zone districts.
Mr.Gunther are they none single..inaudible?
Mr.Wexler said that work as a mudroom?
Mr.Gunther asked are there several other buildings? .
Mr.Wexler said there are several other doors. There are eight doors in the house,unfortunately.
Mr. Gunther said that the applicant made a decision,when they knew there was an error, to continue
construction. Isn't that a rare problem?
Mr.Wexler said and how would you resolve that?
Mr.Gunther said that's their problem.
Mr.Wexler said it's our problem.
Mr.Gunther said it's our challenge then to mitigate the error that exists.
Mr.Winick asked if Mr.Bell has figured out how wide a door you fit in that space,as he looked at it
where that triangle is on your scaled drawing. It looks like you've got about an 18 inch door there and
asked if he's missing something. It's attached to your July 6th drawing.
Mr.Bell said the door is 2 ft.6 in.
Zoning Board
September 19,2001
Page 39
Mr.Winick said existing,you said 30 inch door.
Mr.Bell said yes,it's a 30 inch door and there's another foot towards the building it could slide over.
There's plenty of room. Where it was cut off,wouldn't affect the door right now,so the frame might have
to come over an inch or two. We probably can do it from the jam.
Mr.Wexler said according to the plan where it is cut off,...inaudible,maybe that isn't right.
After some discussion,Mr.Winick asked Mr.Bell on the drawing that he has shown us to show me where
the cutoff line occurs,on the July 6th...left harming.
Mr.Bell said if we had a scale he could do it on here,because we have 4.9 ft.and we'd lose about 3.11
ft. You have a 2.6 ft.door to put in there.
Mr.Gunther's suggestion is that we get a sense of the Board and where Board members stand. If there
is a consensus,he'd be happy to move forward with a recommendation that counsel prepare a resolution
for the Board,so it is appropriate to grant this to be voted on at the next meeting. Mr.Gunther asked if
anyone would care to start.
Mr. Coico said he would love to start,but I do have a point of provocation that's troubling me. I am
sensing from this discussion that if,this is strictly hypothetical,this Board denies the variance that they
would have right to proceed with cutting off that part of the house,continuing with the door installation
in a modified fashion,having steps perhaps that would not be oriented in this direction,but in a different
direction,and asked if that's true? Is that what the outcome would be,assuming you...left hanging.
Mr.Wexler said he doesn't know.
Mr.Coico said he doesn't know.
Mr.Bell said that is true.
Mr.Coico said if that's true,then the issue of the door being there appears to be moot. Whether they're
given the variance or they're not given the variance,unfortunately for the neighbors,they're going to have
a door there. Mr.Coico would like to know what the neighbors think about the two options. Do you want
to have a door where perhaps the land is graded so that you do not have steps,or would you prefer to have
a door that's shifted just 6 inches,with a rather peculiar looking viewpoint.
Mr.Lieberman said there were three options,nottwo. One is to grant the variance and you haven't even
discussed the extent of the variance that you'd be granting,because if you grant a variance,what does that
do with the stairs? Deny the variance,in which event maybe they will be able to put a door with stairs
that will probably,according to Mr.Bell,eliminate the window well and would not encroach any further
than 19.1 ft.,assuming they could do that,or you could save the applicants the expense of shaving their
addition and mitigate the impact of that addition and of that variance by granting the variance to 17.9 ft.
for the addition on condition that they remove the door and the structures which extend even further into
the yard. It's not one or the other,there were three.
Mr.Winick said as a point of procedure, if we were to condition the variance, most of the conditional
variances we've granted have been essentially a negotiation with the applicant. That's all done he',-on the
record. If we grant a variance with a condition that the applicant doesn't want,then we've done nothing.
We've been here an awfully long time to do nothing. They don't have to accept the variance. Why don't
we ask them if they want that. We're playing"chicken"here. That's what we're doing. I just extended
this line and I think you're going to have to be a ballet dancer to get up the bottom one of those steps,
because I don't know how wide steps have to be under the code,but it's going to be pretty interesting to
build those along side the building. I don't know. Maybe Mr.Bell knows what we can do. I'm not an
Zoning Board
September 19,2001
Page 40
architect. I don't know what the code requires,but I think we're all trying kind of doing this thing,
circling around it. Let's see if they want that,or maybe they want to say we don't know if we want it or
not. One way or the other,I don't want to grant a variance with a condition that's not going to get it
settled,because we're wasting our time and we spent a lot of time on this already. We've got to get it
done.
Mr.Bell asked,what's the question?
Mr.Wexler asked if this could be adjourned and another case taken.
Mr.Gunther said absolutely. Mr.Gunther said while the other case if being adjourned,he asked if Joy
and Robert Greenberg are here.
Mr.Gunther read the next application as follows:
APPLICATION NO.4-CASE 2465
Application of Joy and Robert Greenberg requesting a variance to install air conditioning condenser units
on the premises located at 19 West Drive and known on the Tax Assessment Map of the Town of
Mamaroneck as Block 107,Lot 40. The air conditioning condenser units as proposed have a rear yard of
6.5 ft.where 25 ft.is required pursuant to Section 240-37B(3);and further,the condensing units increase
the extent by which the building is nonconforming pursuant to Section 240-69 for a residence in an R-10
Zone District.
Mr.Gunther asked if the applicant is present,at which time Robert Greenberg said he is. Mr.Gunther
asked Mr.Greenberg to give his name and address.
Robert Greenberg,of 19 West Drive,addressed the Board.
Mr.Gunther informed Mr.Greenberg that he has a question for him. The survey that you presented the
Board shows the air conditioning units. He asked if this is considered the side of your house or the rear
of your house.
Mr.Greenberg said he believes that the Town defines that as my rear yard.
Mr.Carpaneto informed Mr.Gunther that in a prior variance that was considered a rear yard.
Mr.Gunther said hence what is requested is 6.5 ft.and asked why do the units have to be here and why
not in another place?
Mr. Greenberg said he was before the Board a little less than two years ago applying for a two-story
addition to our home,which the Board granted and the work has been done. He thanked the Board for
giving him that variance. He said he has some good news and bad news. The good news is I hired Mr.
Boumazos to do a survey,because unfortunately what was built doesn't conform. He said the problem is
my architect gave me some bad advice,which was to place my air conditioning units underneath a wood
deck which is in what's called my side yard,the part of my house which faces the trail. I presently have
two air conditioning units underneath that wood deck. One of them is slightly larger than the other. One
is about 18 inches by 30 inches,and the other maybe 12 inches by 18 inches. The problem the units where
they live at this moment,are not working properly and have not been working properly for two summers
now. In addition to that,as I'm in the process of trying to rectify this and talking with various HVAC
folks,it's clear that I'm sort of headed towards future problems with them being in that location.
Mr. Greenberg said inefficiencies of the unit makes it more difficult to cool my home and with the
....inaudible service issues related to where they are,there is a tremendous amount of heat that's thrown
Zoning Board
September 19,2001
Page 41
out from the units onto the wood deck. In the summertime when you sit on the deck,it's really not a
comfortable place to be. The remedy that I'm seeking is to move those air conditioners to,what is
described on that plan,my rear yard. That to me seems to be the most efficient solution. A little over
a year ago,I called Mr.Carpaneto and told him about the problem and discussed what I could do about
it. At the time,Mr.Carpaneto had informed me that there was some discussion among this Board that
while air conditioners were considered a structure today and continues to be, there may be some
reevaluation of whether an air conditioner is a structure or not on the basis of the sound that that unit
throws off.
Mr.Greenberg said the advice that Mr.Carpaneto gave me was to wait and see how the Board might deal
with that issue,as time would pass.
Mr.Gunther said his real question boils down to why here and why not over here,or here or here. Mr.
Gunther said he's pointing to other pieces of your property. Why must it be in that location?
Mr.Greenberg said the location that we've chosen is on the basis that we think that's the place where it's
most hidden from view and where it forms a pocket there between the retaining walls and the stairs in the
back. We're not married to that location as the only location it could be. When Ms.Martin and Mr.
Winick came out to do a'site review,they commented that they thought the location next to the wood deck
might be a better one. We would not have any objection to that,as an alternate location.
Mr.Gunther asked if Mr.Greenberg knows the distance from the rear of your house to...interrupted.
Mr.Greenberg said it's either 6.1 ft.
Mr.Carpaneto said it's 13.2 ft.
Mr.Greenberg said we don't have a problem whether it's here or here. That's not a very big deal.
Mr.Gunther said what we look to do is to grant the least possible variance,not the most possible. In the
location where you have it,it's the closest of all points on your entire property to a side line.
Mr.Wexler said it also has another impact over there,because there's another house. Because of the stair
well and the retaining wall,the sound is thrown out and magnified.
Mr.Greenberg said the other location is acceptable to us as well. It's really trying to get it to a place
where the unit works properly and we don't have the heat. That's what we're trying to accomplish.
Ms.Martin asked Mr.Carpaneto if the units,taking the 13.2 ft.measurement,were placed along the back
here of the side yard,would we would still need a variance for that.
Mr.Carpaneto said yes.
Ms.Martin said could they come closer than 10 ft.on that side.
Mr.Carpaneto said yes,it's an additional structure.
Ms.Martin said given the two yards,isn't the total more than 20 ft.?
Mr.Carpaneto said you've only got one side yard. You've got two fronts,you've got a rear and a side
yard.
Ms.Martin said it's a driveway and it's considered a front yard as well.
-
Zoning Board
September 19,2001
Page 42
Mr.Carpaneto said yes. I think it would still require a variance. He said it's 10.3 ft.to the bump-out.
Ms.Martin said if we're looking at the 13.2 ft.here?
Mr.Carpaneto said he's just trying to figure out if there's enough room as a 10 ft.side yard.
Mr.Gunther said why don't we just grant it in a position that's the least obtrusive and both further away
from the lot line then this location is?
Mr.Greenberg said his goal would be to make it as close as possible to the house. There's not a lot of
room there to begin with,so basically,there's more room here than there is...(?), The HVAC guys are
saying they want at least 12 inches between my house and the beginning of the unit.
Mr.Wexler said it's about 30 inches. Mr.Wexler asked if it has to be renoticed,now that it's in the side
yard and not a rear yard?
Mr.Carpaneto said he's not sure if it can make the 10 ft.requirement. He said if it's inside the setback,
they're O.K. They still have to make it 25 ft.from the rear,coming the other way.
Ms.Martin said we can use this,because it's still a rear yard. They're just positioning it this way.
Mr.Gunther asked if there were any other questions or comments from the public on this application.
George Stassa,of 11 West Drive,said our house is the one that abuts this property. It's the third time in
three years the applicant of 19 West Drive requested a variance. Each time his request has impacted on
our front yard. The proposed variance is further extending a previously granted alteration of the code to
a distance of less than 7 ft.where 25 ft.is required. At the present time,the location of air conditioning
does not affect any neighbors,as it faces public land and is more than 25 ft.away from our property line.
Noise is not an issue. The only side of his house that faces a neighbor abuts against our property line.
We have windows and bedrooms,facing the site. We might be obligated to keep those windows closed
as well as the windows in our kitchen which face that direction,if the request is granted. Mr.Stassa said
the area requested has a negative impact and it was the least distance to any other property line that he
abuts against.
Mr.Stassa said we do not oppose air conditioners,where they are now. If they are to be moved,we
request you consider another site other than one that imposes on our front yard.
Mr.Stassa said the occupant at 19 West Drive was not required to select the system they have,nor to
locate it where it is now. They should seek a remedy,at their expense,to correct any architectural or
engineering mistakes that might have been made. I do not know what plan the Board is looking at or the
alternate suggestion that is made as to where these compressors might go,but if they are in violation of
the 25 ft.requirement,I ask the Board to reconsider placing them on the other side of the deck. Then they
will not be in violation of the 25 ft. requirement to our property line and they would not be facing
anybody's property. I don't know how much noise these compressors may make. It is still directed less
than 25 ft.from my property line. I ask you consider that possibility as well,thank you.
Mr.Gunther asked Mr.Greenberg if there's a way that you can place those on the other side,because it
doesn't look like you're going to have 25 ft.from the rear yard,even though you're putting it on the trail
side of your property. At most,you'll probably get 19 ft.
Mr. Greenberg said he's not an air conditioning technician. All of the supplying duct work and the
connections into the house are,as you can see,underneath the deck. Moving them to the area which is
in my side yard,I know is doable. Moving it to the other side of the house,I believe would be prohibitive
and possibly...interrupted.
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Zoning Board
September 19,2001
Page 43
Mr.Wexler said you don't have to move it to the other side of the house,just the other side of the deck.
He said right now the air conditioners are right on the east side of your deck. What Mr. Gunther is
suggesting is moving it somewhere over here. He asked if these are steps,to which Mr.Greenberg said
yes. Mr.Wexler said it's getting closer to the other side of your house.
Mr.Gunther said it's further away.
After further discussion, Mr. Greenberg said he understands and is sensitive to the point about this
reflecting in that direction. Putting it here,the reflecting wall would be towards the trail.
Mr.Wexler asked if he can put a fence up or something to...inaudible.
Mr.Greenberg said the neighbor has an existing fence. I augmented that with a stone planter which is at
that same level. There's an additional buffer. The buffer was there. It's basically unchanged. The
additional piece on that here is that the grade of our land on our side starts out about a 3 ft.wall and drops
to an 8 or 9 ft.wall at the end here.
Mr.Wexler said it's pretty well sound reflected off that,with which Mr.Greenberg agreed.
Mr.Greenberg said the distance from here to the front of their house is approximately 35 ft.
Ms.Martin said(it's difficult to hear what she is saying)you could put a small wall or enclose here so
something would be standing out that would...(?) '.
Mr.Greenberg said you could put something there,if you think it would make a difference.
After further discussion,Mr.Greenberg said the top of the air conditioner will be below the top of the
wall. The top of the wall is at the grade,it's 2 ft.of the grade of the driveway and the steps,then it goes
up further to that.
Mr.Wexler said he thinks any buffer that you put between the air conditioner and that house is going to
help the sound from being deflected away from it.
Mr.Greenberg said do you understand what I'm talking about with the height?
Mr.Winick said he's not seeing that great a height you're describing.
Mr.Wexler asked if this has to be renoticed.
Mr.Carpaneto asked for what.
Mr.Wexler said it's going to be encroaching on the side yard.
Mr.Carpaneto asked if they're going by the deck?
Ms.Martin said yes.
Mr.Carpaneto said because it doesn't make the rear on the other side,coming back from the rear yard.
Mr.Wexler said why don't you speak to one of your mechanics,the installer,to see if you can move this
over here or what he would recommend....inaudible..
Mr.Winick said for technical reasons we couldn't rule on this application tonight anyway. The thing to
ask your HVAC is to tell him that the legal requirement he's trying to comply with is 25 ft.back from the
Zoning Board
September 19,2001
Page 44
property line. From the rear property line its common to establish. Give him that as a parameter and let
him deal with it. Let him see what he can come up with. If you can live with it fine. If you still need
variances,you'll have to come in with what you need. Maybe there's some amount of little construction
you could do. If he understands that that's his limitation,then let him design to it.
Rochelle Stassa addressed the Board. Ms.Stassa said she doesn't know how one can keep sound down.
Our windows are right above it. We've been through many variances with these people. They built in
our face,you gave them one variance after another and it's perfect with what the attorney before us said.
Slice and dice,so that's bologna. It hits. Every time something is given,they want something else. We
weren't shown where this air conditioning was suggested by our neighbors or by you. We'd like to see
how putting a little wall can stop the noises from coming in. That means now I can't look out of my
window and now I can't open my window? It's the front of my home. It's a variance on an already
agreed thing.
SORRY,BUT BOARD MEMBERS ARE DISCUSSING THIS ALSO;CAN'T HEAR EXACTLY
WHAT'S BEING SAID.
Mr.Wexler said right now it's over the front of the deck over here,putting it over here and having them
build a buffer here.
Ms.Stassa my sitting room is right there.
Mr.Wexler asked,in the driveway?
Ms.Stassa said yes and explained exactly where it is.
THERE'S IS SOME BOARD DISCUSSION REGARDING THIS AND EVERYONE IS SPEAKING
AT ONCE,SORRY.
Mr.Winick said what we just told the applicant was,we can't rule on the variance tonight. He's going
to go back and talk to his builder to see to comply with the 25 ft.setback. He's obligated to renotice.
He'll either figure out a way to do it so he doesn't need a variance. If so,he won't come here and you
won't have to come here either. Whether you like it or not,he's allowed to do it. If he needs a variance,
he'll know that he has to notice the adjoining properties.
Ms.Stassa mid we are going to be out of town,so if it comes up again in October,we're not here. Can
you do it in November?
I'M SORRY BUT EVERYBODY IS SPEAKING AT ONCE AGAIN!
...(?)Put that in the record,that the proposed site is approximately 18 ft.
Mr.Wexler said we're proposing it.
Mr. ('I said and that still is a violation requirement and I don't believe that a buffer wall is going to
dampen the sound. The reason why we don't hear them now,is that they're under the deck. If he wants
to put them under something,fine,but then he's going to....inaudible the problems I have.
Mr.Winick said Ms.Stassa has just told me they're going to be hut of town for the next meeting. Could
we ask Mr.Greenberg if he needs to come back to us to notice it for the November meeting,so the Stassas
can come and attend?
Ms.Stassa asked if that will be the week after Thanksgiving,or the will it be the last week..inaudible.
Zoning Board
September 19,2001
Page 45
Mr. Gunther said we normally set our calendar the month before the next meeting. Our meeting is
normally scheduled for the fourth Wednesday.
Ms.Stassa said it could be the 28th?
A discussion ensued,at which time Mr.Greenberg said,we'd be able to make that.
On a motion made by Mr.Gunther,seconded by Mr.Wexler,it was unanimously
RESOLVED,that the Public Hearing of case#2465 be,and hereby is,adjourned to the November
28,2001 Zoning Board meeting.
Mr.Gunther asked if Mr.Lieberman is back.
Mr.Lieberman said I must have done you a favor by coming late. How many cases did you get through?
The Board said not enough.
Mr.Gunther informed Mr.Simon that the Board took a brief recess for you to consult with your client.
Mr.Simon said that's correct sir,we did that. He said addressing Mr.Winick's question that there are
facts that we simply don't have tonight,puts us in a very difficult position and making a terrible choice.
Among other things,we need to ascertain exact cost of taking out the corner portion and knowing what
that will involve. The door is,and I notice this must seem like not a terribly big thing,but that's the door
that Ms.Berman uses all the time. She goes in and out of it when she comes home with her children and
when she brings in groceries. It is very important.
Mr.Simon said he has another suggestion. He heard the thoughts about the noise. He has an idea about
how to address that. Going with my idea of swiveling the stairs along the side of the house and removing
the wall,we could build a portico over the platform and stairs and soundproof the inside so that any noise
would be either,(a)absorbed within that portico,or(b)channeled along the side of the house and be an
even better situation than when the previous door,much closer to the property,went straight out to the
neighbor. Now,if that's something that is acceptable,then we'd like to adjourn until the next meeting.
We'll draw a plan,we'll present it and see if we can come up with something that gets everybody home.
If not,then...left haneine.
Mr.Wexler asked if that would necessitate another variance?
Mr.Simon said it would all be wrapped up in this,but sure it piobably would.
Ms.Martin said it would necessitate another variance.
Mr.Simon said this has to be done. I recognize you have independent judgment to exercise,but it's got
to be consensual as a bringing together of these neighbors. Obviously,there's a good deal of expense
involved and we've got to look at that,too. Our architect tells us it's feasible,albeit expense.
Mr.Winick said you're essentially saying you're going to make a covered walkway to run along the back
of that back toward the garage.
Mr.Simon said no sir,just over the platform and down the stairs,so that the opening and closing of door,
the coming of the people,is basically enclosed. The back yard is open anyway. The door which was here
previously was open anyway.
Mr.Winick said he just didn't understand what he meant.
Zoning Board
September 19,2001
y Page 46
Mr. Simon said it wouldn't run the whole length of the building. I think that would be an intrusive
structure. We're trying our best to be constructive.
Mr.Gunther asked Ms.Roma what the due date is for submissions for the next meeting.
Ms.Roma said that everything has to be submitted at least one week before the meeting,because packets
go out to Board members at that time.
Mr.Wexler said if this necessitates another variance, does it have to be noticed again being it's closer
according to this portico as it was designed 17 ft.?
Mr.Carpaneto said yes.
Ms.Roma said those notices also have to get sent to the paper ahead at that time.
Mr.Carpaneto said we need your applications back by the middle of the month prior.
Mr.Gunther said we have to have everything two weeks prior to our meeting date.
After further discussion,Mr.Winick said October 24,2001 is the next meeting date and October 17,2001
is when the packets go out.
Ms.Roma said the paper has to be noticed a week ahead of time with publication five days before the
meeting.
Mr.Carpaneto said he has to be able to do another Disapproval Notice.
Ms.Roma said we need some time to work.
Mr.Winick said October 10,2001 is two weeks before the meeting.
Mr.Bell said since we're trying to cut through the chase here. It seems like last time when we came in
December,we got a sense from the Board before we went through all this,so we would be well advised
to go this direction or not advised to go this direction.
Mr.Gunther said before we go down that road,he'd want to hear from Mr.Lieberman.
Mr.Lieberman said as we've stated all along this evening,we feel that there is absolutely no basis for
granting this variance. However,my client informs me that he is more than willing to look at anything
the applicants suggest,provided that it's understood that they're`obviously under no obligation to accept
it. We don't wish the Zoning Board to feel that because we agree to the adjournment that somehow we
are obligated to agree with it. Obviously,this is going to bring the use even closer than what it is now,
which itself is a reason.
Mr. Lieberman said in response to what Mr.Winick said, sometimes the Zoning Board does have to
impose a condition that the applicant may not wish. We are more than willing to look at anything that
you submit. However,we'd like some time to look at it,too. I don't know how much time they'll need
to put something together. I don't even know when the October meeting is.
Ms.Roma said the October meeting is October 24,2001. ,
Mr.Simon said we'll miss this,so we'll have to go to November.
Mr.Lieberman said he thinks we can get something prepared in about a week's time.
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Zoning Board
September 19,2001
Page 47
•
Mr.Winick said you know the deadline for October. If you can make the October meeting,we'll be here.
Mr.Lieberman said I don't know if you have a limit,but since this will require new variances,we'll have
to go down to the bottom. I don't know how many cases you have on for the next meeting. Is there a
limit that you cut off?
Mr.Simon said he thinks the statements that Mr.Lieberman made are utterly,utterly fair and he is not
bound. On the other hand,I hope and believe that we're not being sent on a fools errand. In other words,
that the concept at least is one that if it's properly presented will be fairly considered. If that's the case,
then...left lumina.
Mr.Gunther said he thinks you have a tremendous opportunity to work with your neighbor with coming
up with solutions that mitigate the problems with your neighbor today. It will be a test to see how
successful you are about it. Mr.Gunther said my sense of the Board is,and if other members want to
voice there's,they are free to do so but not required to do so. As I already mentioned earlier,we granted
a variance to build a particular distance from the rear lot line,and for whatever reason that did not happen.
As a result,I'm not pleased with that,because I don't like this Board to spend a lot of time and effort to
come to a conclusion as to how far back these things are appropriate...inaudible as Mr.Seltzer has moved
to trod around before. Anything that I can do to mitigate the impact of a negative situation that has been
created,is what I want to do.
Mr.Simon said he appreciates that.
Ms.Martin said I for one would like to be assured when I see these new plans that I am looking at a plans
which are accurate,have accurate measurements,are complete,that every nook and cranny and whatever
are proposing is on the plan that I see and that you find someone who is competent to figure out how far
it is from the property line to what you're building. There's got to be somebody out there that can do it.
Mr.Simon said I here you loud and clear. It's my first appearance here. I will take that,too.
Mr.Gunther asked if there were any other comments from Board members. There being none,
on a motion made by Mr.Gunther,seconded by Mr.Coico,it was unanimously
RESOLVED,that the Public Hearing of case#2'59b be,and hereby is,adjourned to the next
Zoning Board meeting,October 24,2001.
Mr.Gunther asked if application#5,Frederick Cuccia,is here.
Mr.Csenge said he is here on their account.
Mr.Gunther read the next application as follows:
APPLICATION NO.5-CASE 2466
Application of Mr.&Mrs.Frederick Cuccia requesting a variance to construct a one-story addition on the
premises located at 19 Campbell Lane and known on the Tax Assessment Map of the Town of Ma,.—.,.;eck
as Block 110,Lot 226. The one-story addition as proposed has a front yard of 22.8 ft.where 30 ft.is
required pursuant to Section 240-38B(1); and further, the addition increases the extent by v'':ch the
building is nonconforming pursuant to Section 240-69 for a residence in an R-7.5 Zone District.
Mr.Gunther said to please state your name and address.
Michael Csenge,of MSC Group Architects,26 Devonshire Road,New Rochelle,New York,appeared to
address the Board. Mr.Csenge said he will try to keep it short. We have a proposed one-story addition
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Zoning Board
September 19,2001
Page 48
to the side of an existing dwelling. The property is a little unique in and of itself. One interesting feature
is that the existing dwelling has a front yard setback of 17.6 ft.
Mr.Gunther asked the people talking in the room to please step outside.
Mr.Csenge said there's a portion of the existing dwelling which we will be removing,thereby increasing
the setback. It's an existing piece that is to be taken off,increasing the setback to 22.8 ft. from the
existing 17.6 ft. It was an addition put on at some point and time that is to be removed. The net increase
in square footage,with that piece coming down,would be less than 100 sq.ft.of new construction.
Mr.Winick asked if there are any existing conditions.
Mr.Csenge said it does seem to be kind of leaning a little bit. That's one reason we're looking to take
it down. Also,the shape of the room is less than 9 ft.wide by 20 ft.long and that portion actually
narrows in even more. It's a very hard room to furnish. It was once a terrace,at some point. The whole
structure will be taken down and rebuilt from the ground up. It is a minimal impact at that point.
Mr.Csenge said that the owner's have talked to a number of their neighbors. I have letters from three
of them here. One from 286 Rockingstone,288 Rockingstone,and Ms.Riley,who did not put down an
address. These are the two neighbors most affected,Rockingstone being adjacent to this portion. I'm not
sure where Ms.Reilly is and whether she's adjacent,but they would be some of the most affected by this.
The owner's have talked with them at length and they wrote letters supporting this.
Mr.Gunther said letters received are from Ann Marie Reilly,Randi Burke Oplanden of 288 Rockingstone,
and Tony Galvao of 286 Rockingstone,with no objection.
Mr.Csenge said I know we're asking for some relief,but again to try and mitigate what we're doing,we
were taking a large section off and lessening the impact,at that point. This is only a one-story addition,
it's not a two-story. There's no intention to put a second story on top of this.
Mr.Gunther asked if there are any questions from Board members. There being none,he asked if there
are any question or comments from the public on this application? 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.Winick,the following resolution was ADOPTED:
WHEREAS, Mr. and Mrs. Frederick Cuccia have submitted an application to the Building
Inspector,together with plans to construct a one-story addition on the premises located at 19 Campbell
Lane and known on the Tax Assessment Map of the Town of Mamaroneck as Block 110,Lot 226. The
one-story addition as proposed has a front yard of 22.8 ft.where 30 ft.is required pursuant to Section 240-
38B(1);and further,the ate,i.S„o increases the extent by which the building is nonconforming pursuant to
Section 240-69 for a residence in an R-7.5 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(1)and Section 240-69;and
WHEREAS,Mr.and Mrs.Frederick Cuccia submitted an application for a variance to this Board
for the reasons set forth in such application;and
Zoning Board
September 19,2001
Page 49
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 current records and observation by members of the Board at the
property itself,there is no undesirable change produced in the character of the
neighborhood or a detriment to nearby properties. The applicant is merely
replacing a current construction which is structurally unsound and awkward in
terms of its living configurations with a new construction that is slightly wider
and also removed by several feet from the property lines that now stand.
B. There is no reasonable alternative. The current portion of the structure has to
be materially replaced and the applicant is minimizing the impact by placing it
in the area that is currently proposed.
C. The variance is not substantial in that the addition is further away from the yard
property line than the addition which currently exists.
D. It will not have an adverse impact on the physical or environmental conditions,
since an addition already exits on the premises and it will be used in the same
manner as the one that currently existed.
E. There has not been a self-created difficulty. This was a structure that existed
when the applicant purchased this property and subsequently discovered that it
had structural problems.
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.
Zoning Board
September 19,2001
Page 50
3. The building permit shall be void if construction is not started within six(6)months and
completed within two(2)years of the date of said permit.
4. Construction shall be in substantial compliance with the plans submitted in connection
with this application.
This decision shall be filed with the Town Clerk as provided in Section 267-a(2)of the Town Law.
Mr.Gunther informed the applicant to see the Building Department during regular hours for a building
permit.
Mr.Gunther read the next application as follows:
APPLICATION NO.6-CASE 2468
Application of Richard and Gloria Kushel requesting a variance to construct a second floor dormer addition
on the premises located at 45 Hommocks Road and known on the Tax Assessment Map of the Town of
Mamaroneck as Block 414,Lot 262. The second floor dormer addition a"s proposed has a front yard of
34.5 ft.+-where 50 ft. is required pursuant to Section 240-34B(1);and further, the dormer addition
increases the extent by which the building is nonconforming pursuant to Section 240-69 for a residence in
an R-30 Zone District.
Larry Gordon, the architect for the applicants,appeared. Mr. Gordon said we're proposing to put a
dormer on the second floor. The dormer is going to become a master bathroom. The existing bathroom
is going to be gutted and a new bathroom is going to be put in. The existing bathroom right now does not
allow my clients to stand up in the shower. The dormer we're putting in is on a nonconforming building.
You can see the lot has a peculiar shape and whatever we do to it will be nonconforming. We're not
increasing the footprint of the house at all. The dormer will look very much like the existing dormer. Mr.
Gordon said it's pretty straight forward.
After some discussion,Mr.Gunther asked if there were any other questions from Board members or the
public on this application? There were none.
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.Wexler,seconded by Mr.Gunther,the following resolution was ADOPTED:
WHEREAS,Richard and Gloria Kushel have submitted an application to the Building Inspector,
together with plans to construct a second floor dormer addition on the premises located at 45 Hommocks
Road and known on the Tax Assessment Map of the Town of Mamaroneck as Block 414,Lot 262. The
second floor dormer addition as proposed has a front yard of 34.5 ft.+-where 50 ft.is required pursuant
to Section 240-34B(1);and further, the dormer addition increases the extent by which the building is
nonconforming pursuant to Section 240-69 for a residence 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 240-34B(1)and Section 240-69;and
WHEREAS,Richard and Gloria Kushel submitted an application for a variance to this Board for
the reasons set forth in such application;and
Zoning Board
September 19,2001
Page 51
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. In this instance,there will be no undesirable change produced in the character
of the neighborhood or a detriment to nearby properties created. The dormer
as situated on the house is setback from the property line further than the house
itself that presently exists and is in conformance with the existing architecture
of the house.
B. After looking at the plans that were presented,it seems to be the only feasible
area that the applicant can relieve their,difficulty or deficiency.
C. This variance granted for this dormer is far from substantial. In fact in many
ways,it helps the architecture of the building.
D. In this instance,this addition will not have any adverse affect or impact on the
physical or environmental conditions in the neighborhood. It is not in conflict
with the house. It is small and is setback further from the property line than it
presently exists and is not clearly visible from the street.
E. In this case,the difficulty is not self-created. This is the expanding of a one-
story house. There is very little second story space. It is the minimum that the
applicant can add to relieve their difficulty.
F. The granting of this variance is in harmony with the general purposes and intent
of this Ordinance and will not be inAious to the neighborhood or otherwise
detrimental to the public welfare.
G. The variance is the minimum necessar3 to alleviate the difficulty detailed in the
application yet also preserves and protests the character of the neighborhood and
the health,safety and welfare of the cc,mmunity.
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 l'
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.
Zoning Board
September 19,2001
Page 52
3. The building permit shall be void if construction is not started within six(6)months and
completed within two(2)years of the date of said permit.
4. Construction shall be in substantial compliance with the plans submitted in connection
with this application.
This decision shall be filed with the Town Clerk as provided in Section 267-a(2)of the Town Law.
Mr.Gunther informed the applicant to see the Building Department for a Building Permit.
Mr.Gunther read the next application as follows:
APPLICATION NO.7-CASE 2469
Application of Christine Pecora and Frank Pia requesting a variance to construct a screened porch atop an
existing garage and a writer's retreat on the premises located at 3 Boulder Brae Lane and known on the
Tax Assessment Map of the Town of Mamaroneck as Block 313, Lot 258. The screened porch as
proposed cannot be erected in the rear one-third of the parcel as required pursuant to Section 240-
34B(3)(b),and as proposed,has a 7 ft.front yard setback where 50 ft.is required pursuant to Section 240-
34B(1). Also,the porch addition would cause the total height of the garage to be 17.5 ft.+-where a
maximum of 15 ft.is permitted pursuant to Section 240-34B(3)(b);and further,the porch addition would
increase the extent by which the building is nonconforming pursuant to Section 240-69 for an accessory
garage in an R-30 Zone District. The writer's retreat cannot be erected in the rear one-third of the parcel
as required pursuant to Section 240-34B(3)(b),and as proposed,has a side yard setback of 4 ft.where 5
ft.is required pursuant to Section 240-34B(2)(c)for an accessory structure in an R-30 Zone District.
Frank Pia,of 3 Boulder Brae Lane,Larchmont,New York,appeared to address the Board. He said due
to the lateness of the evening,I've decided not to read into the record the memo that I handed you,which
is marked exhibit#1. I would like to address your attention to letters that I had from mr neighbors,Mr.
&Mrs.Bening at#1 Boulder Brae,Ms.P.D.Rosen,#2 Boulder Brae and Ms.Jane Hewson,#4 Boulder
Brae. Also,I decided after reviewing the Zoning Laws,that I cannot demonstrate practical difficulty for
the writer's retreat,and therefore,I'm not going to request a 4 ft.variance for the side yard but go to 5
ft. We will condense the side of the writer's retreat,so it won't be an 8 ft.by 10 ft.,it will be a 7 ft.by
10 ft.
Mr.Carpaneto asked if Mr.Pia wants to withdraw that part of the application.
Mr.Pia said withdraw that part of the application. He said you,did notice two sections of the code and
I wasn't sure if by withdrawing,going to a 5 ft.setback from the property line,the side line,how that
would impact the second part of your notice.
Mr.Gunther asked that they review the writer's retreat first. Start over in terms of what it is you want
to do and asked if he is withdrawing that application completely,that part of the application or just the
placement of it?
Mr.Pia said just the placement of it. •
Mr.Gunther asked if Mr.Pia still wants it to be in the rear one-third of the yard,but with a 5 ft.setback
instead of 4 ft.
Mr.Wexler said it's not in the rear,that's the question,it's two front yards.
Mr.Pia said so it's on the side of the house.
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Zoning Board
September 19,2001
Page 53
Mr.Wexler asked to point something out from the code to the Board that we've been doing for years and
years,the notion that an accessory only be built on the rear one-third of the yard. That's actually not true.
When it's built in the rear one-third of the yard,it can go closer to the property line than what the zoning
allows. You can build an accessory structure anywhere on your property,providing you follow the
setbacks in the zone. When it says it's in the rear one-third of the property,it allows you to build it 5 ft.
from the property line. I was always under the notion that it only could be built in the rear one-third of
the property.
Ms.Martin asked if Mr.Wexler is saying that if he built it 5 ft.away from the property line,we cannot
....left hanging.
Mr.Wexler mid he hasn't got a rear one-third in his property,because there's no rear. But,if he wanted
to put a structure somewhere else on your property that meets your setbacks,it can only be on one-third
of your property and asked if that's correct.
Mr.Carpaneto said that's correct. A garage can be in the front yard,with a setback.
Mr.Wexler said no,not in the front yard. It can be 30 ft.,but with a setback.
Mr.Carpaneto said he should say a detached garage,accessory structure.
Mr.Wexler said the question he had is does the applicant want the second part,which is the rear one-third?
Once you set it back 5 ft.,only 5 ft.,it can only be in the rear one-third of your property. You don't have
a rear one-third of your property. You've got two front yards.
Mr.Carpaneto said it will still require a variance.
Mr.Pia said he's not withdrawing the application. He's not asking for a 4 ft.side yard variance. I'm just
asking for a variance for the writer's retreat.
Mr.Wexler said which is built on blocks or a foundation? The drawing shows it built up on little things.
Mr.Pia said it will be built on footings,four corner footings.
Mr.Winick said it's not going to pivot?
Mr.Pia said no. It's actual footings. I gave you just an example of writer's retreat. That was the one
that was used by George Bernard Shaw and what he did.
Mr.Martin asked,that's not the one you're going to use?
Mr.Pia said no. The one I'm going to use is in the application.
Mr.Carpaneto said you are going to apply for a variance.
Mr.Pia said yes,I'm going to apply for a variance,but not for the side yard variance.
Mr.Wexler said it says tiny houses or how to get away from it all. Is that the intent of this little box?
Mr.Pia said that's to do the writing,yes.
Mr.Carpaneto asked Mr.Pia,rather than change the dimensions of the building,will you just move it?
Mr.Pia said he'll have to talk to the boss,my wife,about that,because she doesn't want it too close to
the house. I think we could do that.
Zoning Board
September 19,2001
Page 54
Mr.Carpaneto said he's just wondering if it needs to be renoticed,because it's not the same size on the
plan.
Mr.Wexler said it looks smaller than what's on the plan.
Mr.Pia said it will be smaller.
Mr.Wexler asked if Mr.Pia is going to continue with his presentation.
Mr.Pia said regarding the writer's retreat,I am a writer and what's increasingly happening is that the
place that I write is becoming very noisy,plus interruptions and while I'm certainly not in the same
category caliper as George Bernard Shaw or Chereau,these were some individuals who spent most of their
creative time in writer's huts away from distractions. That's the reason for the writer's retreat. Also,it's
below my neighbors property. She's higher than I am. There's evergreens,Taxis,that will cover the top
of it. There will be plantings upon the side. Her garage faces the writer's retreat,so she won't see it.
It's not visible from the front. It's not visible from Fenimore Road.
Mr.Gunther asked if it will be in the same location,but instead of 4 ft.,5 ft.from the lot line.
Mr.Pia said that's correct. Actually it's going to be tucked underneath a..inaudible.
Mr.Gunther asked if there will be electricity.
Mr.Pia said yes,just electricity for a light and a small heater. That will be it.
After further discussion,Mr.Gunther asked if Mr.Pia can tell us about the screened porch.
Mr.Pia said the screened porch will be a structure that's on top of an existing garage. The reason for the
screened porch is a fairly recent development. I do a lot of work with the Westchester County Health
Department and also serve as the chairman of the Health and Safety Committee of the American Red Cross
in Westchester County. There's an increasing concern with West Nile Virus as well as other,what I
consider to be more exotic diseases,that will use the local mosquitos as hosts to convey...interrupted.
Mr.Wexler said...inaudible alarm us a little bit.
Mr.Pia said I've been quite alarmed by what's starting to occur. My wife and I are not individuals who
use pesticides on the land. She is a life science teacher and does a lot of water testing,so she's well aware
of how the ground water gets contaminated and how pesticides also affect the quality of life in Long Island.
As far as the regular insect repellents,I've used those in the past. They have been linked to cancer. The
citronella lamps don't work and also, I am developing a chemical sensitivity,so we can't use those.
Winged Foot has a large wooded area. I put out mosquito traps just last summer and we captured a
considerable number of them, so essentially with the fear of West Nile Virus and more importantly,
Encephalitis,we don't spend any time outside. The purpose of i,he screened porch would be to enable us
to enjoy our back yard without compromising our health.
Mr.Wexler asked if that's the only place you can put it.
Mr.Pia said yes.
Mr.Wexler said it's going to be rather dominant on Fenimore Road.
Mr.Pia said that the pitch of the roof will be very,very negligible. From the way it was drawn,it looks
rather steep,but it's not going to be.
Zoning Board
September 19,2001
Page 55
Mr.Winick said after we visited the property,it goes down along Fenimore Road,I have to say I was
quite struck by how anything that's built on top of this garage is going to be way out in front of every other
building or be extremely visible in which otherwise is a completely wooded setting. I'm very depressed.
It's going to have a big impact. That is a very wooded area. It's an area where the houses are not very
visible from the street. It's really out of sync with the area. I noticed that you've done something. I have
to compliment you,you have a beautiful home. It's a inaudible construction,which I particularly like.
It's very unusual. You echoed that in the structure of the screened house. My concern to that is,it is
•
really massive,you a lot of timber. You could make a screened house,I think,that would disappear from
the road. You haven't made that one.
Mr.Pia said that the posts are 6 inches,so they're not the massive ones that you saw in the front. The
pitch of the roof is going to be much shallower than that,so you won't literally be able to see that from
the road. Then the screened in areas between the posts are made of metal screening, so you will be
essentially looking through them. Essentially what you'd be seeing are posts going up.
Mr.Wexler asked if he's determined to put electric lights in?
Mr.Pia said maybe a ceiling fan,but that's about it.
Mr.Wexler said no lights.
Mr.Pia said he's not in that forte.
Mr.Wexler said because if there's lights,that will be like a lighthouse on Fenimore Road. You'll really
see it from everywhere.
Mr.Pia said if there would be light,it would be up on good old lighting structure.
Mr.Wexler said you'll become a...inaudible.
Mr.Gunther asked if there were any other questions from Board members. There being none,he asked
if there were any questions from the public on this application. There were none.
Ms.Martin said she would like to take this in two separate:steps. First she would like to deal with the
writer's retreat.
Mr.Wexler said there are two parts here.
Mr.Gunther said that the resolution will be dealt with in two separate pieces,which is what we're doing.
I'm happy to deal with the writer's portion and then we'll'deal with the screened porch.
On motion of Ms.Martin,seconded by Mr.Gunther,the following resolution was ADOPTED:
WHEREAS, Christine Pecora and Frank Pia have submitted an application to the Building
Inspector,together with plans to construct a writer's retreat on the premises located at 3 Boulder Brae Lane
and known on the Tax Assessment Map of the Town of Mamaroneck as Block 313,Lot 258. Thr
retreat cannot be erected in the rear one-third of the parcel as required pursuant to Section 240-34B(3)(b),
and as proposed,has a side yard setback of 4 ft.where 5 ft.is required pursuant to Section 240-1dB(2)(c)
for an accessory structure 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 240-34B(3)(b)and Section 240-34B(2)(c);and
Zoning Board
September 19,2001
Page 56
WHEREAS,Christine Pecora and Frank Pia 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. WRITER'S RETREAT: 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 personal observation of the property, examination of the evidence
presented at the meeting and letters from the neighbors,there is no undesirable
change produced in the character of the neighborhood or a detriment to nearby
properties. It is a very small structure. It is well below the property next door,
4 Boulder Brae Lane,and the small structure on that property is a garage.
B. There is no reasonable alternative for the applicant to achieve his goals. This
is a nonconforming property with two front yards. Any place chosen to put a
structure on this property is problematic and would require a variance.
C. The variance is not substantial. It is a small structure and will not have a
substantial impact.
D. There will be no adverse impact on physical or environmental conditions.There
is no increase in traffic, given the fact this is a place to go for quiet and
concentration.
E. There is no self-created difficulty. It is nonconforming parcel with two front
yards.
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
.-ri:ace 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.
Zoning Board
September 19,2001
Page 57
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 said now the second portion,which is the screened in porch.
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, Christine Pecora and Frank Pia have submitted an application to the Building
Inspector,together with plans to construct a screened porch atop an existing garage on the premises located
at 3 Boulder Brae Lane and known on the Tax Assessment Map of the Town of Mamaroneck as Block 313,
Lot 258. The screened porch as proposed cannot be erected in the rear one-third of the parcel as required
pursuant to Section 240-34B(3)(b),and as proposed,has a 7 ft.front yard setback where 50 ft.is required
pursuant to Section 240-34B(1). Also,the porch addition would cause the total height of the garage to be
17.5 ft.+-where a maximum of 15 ft.is permitted pursuant to Section 240-34B(3)(b);and further,the
porch addition would increase the extent by which the building is nonconforming pursuant to Section 240-
69 for an accessory garage 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 240-34B(3)(b),Section 240-34B(1)and Section 240-69;and
WHEREAS,Christine Pecora and Frank Pia 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. SCREENED IN PORCH: The Board finds that the benefit to the applicant from the
granting of the variance would not be outweighed by the 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 a very substantial and undesirable change produced in the
character of the neighborhood. The Board appreciates the applicants'request
for this porch in terms of their own health and safety. However, the Board
finds from personal observation of the property and particularly the view of the
Zoning Board
September 19,2001
Page 58
proposed structure from Fenimore Road,it will be a looming,highly visible
structure,and very out of keeping with the character of the neighborhood.
B. The applicant could have a reasonable alternative to achieve his goals of having
an exterior screened porch somewhere else on his property that would not be on
top of the garage which is already intrusive to the neighborhood.
C. The variance is very substantial in view of the prominence and visibility of the
proposed location.
D. Granting this variance would have an adverse impact on the physical or
environmental conditions of the neighborhood,as the porch would be a very
visible and intrusive element out of keeping with surrounding neighborhood and
structures.
NOW,THEREFORE,BE IT
RESOLVED, that the subject application be and the same is DENIED for the SCREENED
PORCH portion of the applicant's property.
This decision shall be filed with the Town Clerk as provided in Section 267-a(2)of the Town Law.
Mr.Gunther asked if there were any other comments from Board members on this application.
Mr.Wexler said he'd like to point out that Fenimore Road is a very countryside road and a view of any
length we have in our community. Your garage is very dominant,it's not very delicate sticking up there.
It really sticks out over the road and to see this other substantial structure on top,is a distraction that
follows you up the street.
Mr.Pia said could he ask the Board for some guidance regarding the determination that was made that I
have a corner lot as opposed to an interior lot. I'd like to give the Board a little history on this matter.
Mr.Pia said he spoke several years ago with Mr.Jakubowski about this and at that time he indicated to
me that it was his interpretation of the Zoning Law that the lot was a corner lot,even though the code
specifically defines a corner lot in terms that it doesn't apply to my particular lot which is an interior lot.
If this was an interior lot,I would be permitted to build within 5 ft.of the property line. I'm 7 ft.from
the property line. The other part of the variance would be that I could not go up 17.5 ft.,only 15 ft.
Mr.Wexler said 15 ft.to the center line of the gable.
Mr.Pia said correct,which is what the drawing has. I would like to go into the code,because it's a little
confusing to me and has been so. I spoke with Mr.Carpaneto about it and he indicated that since this was
just the determination of the prior Building Inspector that it would really be a matter for the Zoning Board
to address.
Mr.Pia said the code of Mamaroneck,which was revised in 1998,talks about lots. It says,"Lot,Corner-
A lot of which at least two adjacent sides abut on streets or public places. Any other lot is an interior lot.
Then it goes down to"Lot,Interior"and it says,"a lot other than a corner lot". If you take a look at the
topographical survey, it's clear that there's a house on the left and a house on the right,so it is not a
corner lot. I know that the term"through lot"has been used in the past,but I looked through the Town
Code and I don't see a term"through lot"indicated in the Code. I respectfully request that the Zoning
Board revisit this issue and look at my lots not as a corner lots,but as an interior lot as is described by
the Code.
Zoning Board
September 19,2001
Page 59
Mr.Wexler said he thinks we even looked at it as an interior lot.
Mr.Pia said no,it was looked at as a corner lot.
Mr.Wexler said no,you're on Fenimore Road. What you want to build is on the road,the front yard.
It's my understanding of that. Is that correct?
Mr.Carpaneto said yes,these are front yards.
Mr.Gunther said there are two fronts,both at grade on Fenimore Road,right?
Mr.Carpaneto said and there are two sides.
Mr.Wexler asked if this is an easement to his property?
Mr.Carpaneto said no,two roads.
Mr.Wexler said he's looking at the wrong drawing,he's looking at the tax map. There are two front
yards.
Mr.Pia said how does that affect...left haneine.
Mr.Wexler said number 1,the garage,when you came to variance originally,was a variance for a front
r
yard variance.
Mr.Pia said at that time there was a 2 ft.setback from the property line. At that particular time, the
attorney who represented me said that it would not be a useful avenue to explore at that particular time,
whether you had two front yards or not or whether you had an interior lot or not. It was my understanding
that if you are an interior lot,you only have one front yard. It's only when you are a corner that you have
two front yards.
Mr.Winick said you have a front yard that's on a street. Because there are streets on both sides of your
property,that's the reference made to a"through lot". That is usually what people refer to. But whatever
happens...inaudible,you'll have the piece laid out. Instead of!paving a lot behind you,you're on both
sides.
• Mr.Pia said his question is that there are only two types of lots corner lots and interior lots. If I'm an
interior lot,then the rear third only requires that an accessory sructure be 5 ft.from the property line.
That's the question I want clarified.
Mr.Wexler said you could also state that when you're on a street,there's a front yard.
Mr.Pia said you only have two front yards when there's a comer lot. Is that correct?
Mr.Wexler said no.
Mr.Carpaneto said yes.
Mr.Wexler said where does it say that.
Mr.Carpaneto said whenever you have a street,you have a front.
Mr.Pia said I think the rationale that was used to define or to say that I needed 43 ft.was the section that
says corner lot. It doesn't mention two fronts.
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Zoning Board
September 19,2001
Page 60
Mr.Carpaneto said that the resolution attached to your garage says that you have two front yards. It says,
"the lot is burdened by two front yards".
Mr.Pia said what I'm saying right now is that I was advised by counsel,at that time,not to challenge that
determination,because the whole point was to get the variance. That wasn't an issue,whether I had two
front yards or not.
Mr.Winick said aside from the fact that you don't use your counsel's advice,I don't think you can take
that position from the Board to get one variance and then take the contrary position to build on exactly the
same structure a second story,because now I want it to be a rear yard. I personally wouldn't allow you
to do that. I don't think you can.
SORRY,MR.WINICK AND MR.PIA ARE BOTH SPEAKING AT ONCE!
Mr.Pia said he can't tell the Board how to read this resolution,but what I'm saying is the interpretation
of the code is pretty clear. It's a...inaudible thought.
Mr.Wexler said it's not very clear.
Mr.Pia said yes it is,that's the point. There's no ambiguity. It says,either it's a corner lot or an interior
lot. If it's an interior lot,I only have to be 5 ft.from the property line.
Mr.Wexler said that's if you had a rear yard,but you don't have a rear yard.
Mr.Pia said I do have a rear yard,because I'm an interior lot.
Mr.Winick said he's looking at the definition section of the code and I don't see a definition for any of
these things. I see a definition for lot.
Mr.Pia said right here.
Mr.Winick said O.K.,a lot interior.
Mr.Gunther said he would like to second the resolution that was proposed and to a vote move forth.
Mr.Gunther said second.
Mr.Winick asked if Mr.Gunther seconded the motion,with which Mr. Gunther said he seconded the
motion,and Mr.Winick said I abstain. Mr.Gunther asked all those in favor. The Board replied aye.
Mr.Gunther said the motion denying the application for a screened in porch has been passed.
Ms.Roma asked who made the motion and who seconded it. •
Mr.Gunther said he made the motion and Ms.Martin seconded'it.
Mr.Gunther said that all members voted in favor.
Mr.Wexler asked to go over the definition of a lot. "A parcel of land,not divided by streets,occupied
or to be occupied by a building or buildings and accessory buildings,together with such open spaces as
are required under the provisions of this chapter,and having its principal frontage on a street or on such
other means of access as may be deemed,in accordance with the provisions of law".
Zoning Board
September 19,2001
Page 61
Mr.Pia said the teachings of the code are very,very specific. The teachings of the code say,there are
only two types of lots,a corner and interior. Only corner lots require two front yards,according to the
code.
Mr.Coico said that doesn't mean another kind of lot can't also have two front yards.
Mr.Pia said that's absolutely true,except that it doesn't say that in the code.
After further discussion,Mr.Wexler said the Board has to take another application. We can discuss this
after. Maybe another night.
Mr.Winick said if you want to come back with different application you can. If you want to come back
to request a clarification that's something you can do. Otherwise,you need to be talking to Mr.Carpaneto
about it.
Mr.Pia said Mr.Carpaneto indicated that it's really an issue for connsrl and also for the Zoning Board.
I've spent three hours here listening to attorneys talking about issues that I could have explained in ten
minutes. I really compliment your patience,so I'm asking for what I consider to be a very,very simple
clarification. I can understand your decision that you're saying that you're not going to grant the variance.
I'm asking for the basis of that decision and the determination that I have a corner lot.
Mr.Gunther said there are two separate issues that you're asking for. You didn't ask in your application
for a the determination of whether you are a corner lot or not. That's not what was before us. What was
before us was a request for a variance for a screened in porch on top of your garage and that was denied
based upon the impact to the community and the neighborhood,because of its location right on a street in
a prominent location. That's the primary basis for denial for that portion. The other portion of your
application was for a writer's retreat and that was approved. If there's a desire on your part for us to
examine your property in terms of a determination,whether it is an interior lot or a corner lot or whatever,
you are free to make an application at which point we will then have counsel and you will have an
opportunity to re-review the law and your property with that regard. We can't just sit here and take
another request,because it's a legal definition of whether you are an interior lot or not.
Mr.Winick said we were legally disabled in making that decision,because it's not noticed.
Mr.Paden said there's a question whether the Board really has the authority to issue a view in the absence
of an application to the Building Inspector. In this jurisdiction its the procedure to speak to the Building
Inspector. The way this would come up is if you were to submit an application which is dependent one
way or another on whether it's a corner lot or not a corner lot,•because of where you want to place the
building. So that would determine whether you need Ale variance or didn't need the variance and how
much of a variance do you need. On the denial of that application,the question would come up. I don't
think the Board is able to just offer advice and counsel about what this law means. This Board reviews
decisions of the Building Inspector and they have jurisdiction to do that. In the course of that,we can
interpret the law. I think that's all this Board really can do.
Mr.Pia said essentially what you're saying is I need to put in another application,at which point you will
review the existing case law,the existing codes and then render a decision.
Mr.Paden said if your application presents a question that you do or don't need a variance or how much
of a variance you need and it turns on whether it's a corner lot or not a corner lot,then in connection with
that,that's going to become a part of the issue in that application.
Mr.Pia said I submit to you it's implicit.
Mr.Paden said do it now.
Zoning Board
September 19,2001
Page 62
After some discussion,Mr.Pia said just so I understand the process,I send an application in?
Mr.Gunther said it's the Building Inspector who will make the initial determination. If he says it's"X"
and you disagree with him,then it is referred to this Board for an answer different than what the Building
Inspector determines.
Mr.Winick said your application will ask for relief based on your interpretation if you are or are not a
corner lot,depending on what you want to accomplish. That will put the issue with Mr.Carpaneto and
he'll review and we'll review it,if he denies your application. At that time,you're here in a way that we
can review it. That's how it works.
Mr.Gunther read the next application as follows:
APPLICATION NO.8-CASE 2470
Application of Adam Abramowitz and Lori Samuels requesting a variance to construct a second floor
addition on the premises located at 13 Cornell Street and known on the Tax Assessment Map of the Town
of Mamaroneck as Block 201,Lot 159. The second floor addition as proposed has a side yard of 15 ft.
where 20 ft.is required pursuant to Section 240-34B(2)(a);a total side yard of 40.3 ft.where 50 ft.is
required pursuant to Section 240-34B(2)(b);and further,the addition increases the extent by which the
building is nonconforming pursuant to Section 240-69 for a residence in an R-30 Zone District.
Bans Loughran,the architect,and Mr.&Mrs.Abramowitz are present. Ms.Loughran said we have two
letters from the neighbors on the side,J. Steinbergh and Om Pradhan,who have no objections to the
construction as proposed,submitted and marked exhibit#1. Basically what we're doing is we're going
right on top of the existing foundation.
Mr.Wexler asked what happened to the first floor.
Ms.Loughran said it's right on top of this.
Mr.Wexler said it doesn't'say that in your application.
Ms.Loughran said it says build second-story addition.
Mr.Wexler said you're going to build on top of the foundation.
Ms.Loughran said no,on top of this is the same floor. Then we':re adding a second story addition on top
of this inaudible.
•
Lori Abromowitz said we purchased this property from the original owners. It was built in 1962,it's a
ranch and we purchased it with the intent of making it into a ColGnial,the second story addition. She said
Ms.Loughran will go through the defiance with you.
Ms.Loughran said basically we're not increasing,we're staying right on the existing footprint of the house
and existing foundation. There is no impact on erosion or increase to the runoff of water drainage or the
size of the house. Also,we're staying right on top of the existing property.
Ms.Abromowitz said as we were not building out. We didn't foresee having a problem,because we're
keeping the footprint of the house.
Ms.Loughran said we're staying with the same footprint. The property is very deep. It borders on the
...inaudible on the back and the two houses on the side,about 15 ft.and 25 ft.,but were not getting closer
Zoning Board
September 19,2001
Page 63
than the zoning thing. It must have been upgraded from when the house was built. She reiterated,that
we're not increasing the footprint,just increasing the house.
Mr.Wexler said you're redoing the whole first floor.
Ms.Loughran said we're residing,too and the windows are going to be changed. Also,the driveway is
staying where it is,the garage is staying where it is,with entrances..inaudible on the driver's side. The
size of the garage is not changing location. Exits and the entrance to the property, none of that is
modified.
Mr.Gunther asked if there were any pictures with the application.
Ms.Roma said no,she didn't see any.
Mr.Wexler said she's saying the value of this work is$268,000? You should be so lucky.
Ms.Loughran said it's figured on the cost of the second floor,etc.
Mr.Wexler said the redoing of the first floor and the residing of that house is how much?
Ms.Loughran said what she did is basically follow the guidelines that we use. I don't know if they're
different in Mamaroneck,but we have for first floor$100.per sq.ft. We didn't get any estimates yet.
Mr.Wexler said you're a professional. Take a look at this.
•
Ms.Loughran said it's lower,but we have a guideline about$100.on the first floor and$90.on the
second floor. No foundation,but I don't think that would be a problem in terms of reassessing the value
of the work.
Mr.Wexler said I think the Building Inspector should look at this carefully.
Mr.Carpaneto said he always checks out the value,before any actual permit is issued.
Ms.Loughran said they came in just last week to get the variance.
•
Ms.Abromowitz asked what the issue is regarding the value.
Mr.Wexler said because that is referenced to scope of work,building permit fees,etc.
Ms.Abromowitz said the fee is the affected fee. That we understand.
Mr.Wexler said when I see this,it leaves one to question what is being censored.
Mr.Coico asked,in terms of the Building Department fee?
Mr.Wexler said no,in terms of the scope of work. I look at something that is sensed,but it's even
in the ballpark.
Ms.Loughran reiterated that she used a guideline that we have the$100.for first floor and$90.for the
second floor. That's what I used.
Mr.Wexler said that's too much.
Ms.Loughran said I think you are right,absolutely.
Zoning Board
September 19,2001
Page 64
Mr.Gunther asked Mr. Carpaneto if the tax maps indicate updated maps with other properties on the
street.
Mr.Carpaneto said it turns into Scarsdale at that point,at which time a discussion ensued.
Mr. Coico said.across the street is Scarsdale. There's a house on the left and on the right and a golf
course behind that.
Ms.Abromowitz said this is the street and that the corner house is the house that used to be owned by Judy
Garland,the big brick mansion.
Mr. Gunther said I know Cornell Street. I've gone past your house, but with every application we
generally look at the tax map as well. What that shows is the position of every other property. It's not
only the parcels, but the sizes and position of all the other properties. So you can look at it,as can
everybody else.
Mr.Carpaneto asked what the block and lot is.
Mr.Gunther said the block is 201,parcel 159.
Ms.Abromowitz said this is a hardship. We currently don't live in this house. We bought this house in
March solely for intention of doing this work in this house. We have a house that we live in and we
wanted a bigger house. We wanted bigger property. We found this property and thought that this could
accomplish...left hanging.
Ms.Martin said she understands.
SORRY,EVERYBODY IS TALKING AT ONCE!!
Ms.Abromowitz said this is not my house that I live in.I don't know what I'm going to do with this
house,if I can't do this.
Mr.Winick said...inaudible a self-created difficulty.
Ms.Abromowitz said yes,yes,yes.
Mr.Winick said you couldn't come up with a better example.
Mr.Carpaneto said this is a large house.
Mr.Coico said he knows the street well,because a friend lives there.
Ms.Abromowitz said and behind you also have Coventry Court and Rock Creek Lane. You've got a lot
of big,big houses there.
Mr.Winick said the Board'cnsidered that,too. This is sort of the opposite of the situation on Mohegan,
where they're juggling the height of the house that happens to be on the downhill side.
Mr.Wexler said it was on the ridge that made it higher.
Mr.Winick said no,no,this one. This one is lower. It's the opposite of Mohegan.
...(?)said in the back of the house it looks big,but in front it looks small. After further discussion,he
said the basement is actually above ground.
Zoning Board
September 19,2001
Page 65
Mr.Winick said if I remember right,you can chip to a green right from your back yard.
On motion of Mr. Gunther, seconded by Mr. Wexler, the following resolution was proposed and
ADOPTED 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.Gunther,the following resolution was ADOPTED:
WHEREAS,Adam Abramowitz and Lori Samuels have submitted an application to the Building
Inspector,together with plans to construct a second floor addition on the premises located at 13 Cornell
Street and known on the Tax Assessment Map of the Town of Mamaroneck as Block 201,Lot 159. The
second floor addition as proposed has a side yard of 15 ft.where 20 ft.is required pursuant to Section 240-
34B(2)(a);a total side yard of 40.3 ft.where 50 ft.is required pursuant to Section 240-34B(2)(b);and
further,the addition increases the extent by which the building is nonconforming pursuant to Section 240-69
for a residence 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 240-34B(2)(a),Section 240-34B(2)(b),Section 240-69;and
WHEREAS,Adam Abramowitz and Lori Samuels 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. No undesirable change will be produced in the character of the neighborhood or
a detriment to nearby properties created.
B. The existing footprint of the building is going to be used,so there will be no
additional intrusion into any of the yards on the property. The existing property
line will be observed.
C. The adjoining lots are large and there will not be intruded upon any further by
the proposed addition,which is an increase in height. The neighborhood will
not be impacted,because the way the grade is raised along Cornell Street,this
is on the down hill side of the grade. Even though the height of the property
is going to increase dramatically,it is below the height of the houses across the
street,so they won't be visually impacted.
D. The variance is not substantial when viewed in the context of the fact that the
existing building line is being observed.
Zoning Board
September 19,2001
Page 66
E. It is not a self-created. This property is as it was purchased with a 15 ft.side
lot on the side that requires a 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.
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. Abramowitz said he wants to thank each one of you and commend you for your extraordinary
patience.
APPROVAL OF MINUTES
Mr.Gunther said the Minutes of the previous meetings will be discussed at the next meeting.
NEXT MEETING
The next meeting of this Board will be held on October 24,2001.
ADJOURNMENT
On a motion and,the meeting was adjourned at 1:10 a.m. may,,
- Marguen 1 oma,Recording