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HomeMy WebLinkAbout1932_10_27 Zoning Board of Appeals Minutes / �,7 � r 7 J �/ 7 /9 3.2... IL-'-Ale"11414<J;;*dir-MK) / •l / cAir- . 41 - . .--t*dee- i , ,..„4 :7e,jetaiehAer__:- - , , • Adz ,(./0/(..4-: , ,zie- r„.f.44,t,._ 4'4 A rdee-(Avoice004a, - -- ��.A.. - , , ., O - 4, ii _tea , ;%2 ,, • ---- PFSTIAONY GIVEN BEFORE THE BO iR?3 OF i:.IE.V.JS ON THE ti'IFL OF :IR. JCRS J. Mol t3N FROM THE 'DECISION OF THE BUILDING CO I:&ISSION FOR A PERgIT OF OCCU.r_U C`_T FOR xRE2.ISES KNOWN 1S No. 30 HL SI 'E ROAD, TON OF : MRONECK, 11. q. OCTOBER 27, 1932. 11r. : oCann represented br 3ounsel Lawrence B. Greenbaum. Ir. R. L . "leldon represented b7 Counsel J. B. Gilleran. B7 _a. Greenbaum;- "he new plan has not been presented but will be later :resented to become a part of the evidence. I offer the plan as filed with the Building Inspector, both the original plan and the modification subsequently filed on or about June 7, 1932. I will ask 4r. :!oCann to please take the stand. ')ath administered to :;Ir. AoCann by Chairman 7ossbottom 4r. Greenbaum- "ou are the applicant here? inswer-res Sir. 'r. Greenbaum- )id -rou buill the ;:remises in question? `r. : o Cann-'es 'r. Grcenbaum-lid rou heretofore make an application to the Board of .peals for a certificate of oeoupanor? "r. IaCav n-No, to the Building Commission. r. Greenbaum- Ind that certificate was denied? r. ..cCann-res ir. :r. Greenbaum-Have "ou the order of denial? r. .lo Bann-No Sir. :r. Greenbaum-"ou took an a,seal from that denial? zr. :aoCann—es Sir. Yr. Greenbaum- 'end that a,peal wa3 denied. Incidenta1447 did rou an or about June 7th, 1332 file am Ilans with the Building Commission? �r. AoCann-Tes sir. Mr. Greenbaum-')id rou have a hearing before the Building Co.iminsion? Ir. IoCaan-"es Sir. Mr. Greenbaum-"'ho was present at the hearing before the Building Oo.ami sion? Ir. MoCann-'1r. Sarfat' 'r. 'link, .'r. Brewer and Town Counsel Gamble. It. Greenbaum-I offer in evidence the :minutes of the hearing held before the Building ?omission on the application of "r. :lcCann dated June 7, 1332. '.'r. Greenbaum- ifter 'that :meeting lid rou make certain alterations on the premises in question? : r. uoCann-"es Sir. (2) 'r. Greenbaum-Will you tell the 3oard of %pLeals what alterations you made? Ir. :ioCann-I lowered the terrace about eight-inches. I removed the iron structure which held the awning on the side of the building. I re.:;oved the front rail and the back rail. I built a retaining wall on the front of the terrace, raised the grade from the retaining wall to the garage drive-way and shrubbed and landscaped the front of the premises before the new work was done. I also removed the awning. Ir. Greenbaum-Did you have a permit to Aake that alteration? ':yid rou have an actual permit? Ir. '_eCann-No. I was under the instructions of the Building oo emission and .!r. ..ink. Ir. Greenbaum-He was designated as the member of the ^oami:3sion hereinbefore referred to? 'r. ':'o?ann=es ^ir. `.'r. Greenbaum- 4nd rou did that under his ( ':r. "ink's) instruction? Ir. :"o:ain-'es Sir. Greenbaum-''"ill rou :escribe in detail to the Board, the condition of the premises, starting with the side of the build- ing and working all the way around, as nearly as -ou can? 'r. ^.'o ;ann- '.sfinished , --ou mean? . r. Greenbaum-I want you to describe in detail, as nearly as you can what the condition is around these premises , starting with the rear of the terrace and proceeding around to the front at the present time. "r. :!oCann- Is the covered terrace was above the re,,uired zoning re .luirenents on the line of the exterior terrace , it was necessary to make a step. I dug down to the base of the rook and then laid the flag stones on top of the ground using the base of the rock as grade. 'r. Greenbaum-tt this stage, you ripped up the flag stones? :r. _:c3a.nn-"es, I ripped up the flag stones and laid them to:) elm in dirt, not concreted down from the side of the house out to the end of the terrace. Greenbaum- Ind that is the condition that exists going from the house to the side line or particularly from the side line to the rear of the terrace? ' r. MoCann='es Sir. Ir. Greenbaum "ill 'you further state what "ou did? Ir. 'fo?ann-I built a retaining wail about three-feet six-inches high filled with dirt between the terrace and the house and cemented the retaining wall 'r. Greenbaum-Is there vi ' fence from the side line of the terrace to the house? 'r. `loCann-No "ir. ::?r. Greenbaum-Is there an awning on the terrace? ;.r. ".oCann-?to, I removed the awning and awning structure. (0) r. Greenbaum-"ou are a builder :oaann, and have been in the building business for how many Years? Ar. 'o Cann-400ut twelve rears. ''r. Greenbaum-In 'our opinion, would you consider that terrace Art* part of the structural part of the building? 'r. :'oSann-No Sir. :'r. Greenbaum-In Your opinion in the retaining wall ann part of the structural kart of the building? r. -ofa in-No Sir. 'r. Greenbaum- 4fter 'ou made these alterations You apjeared before the Builling Commition again`' 'r. '. o Cann-"es 'r. Greenbaum- 4nd You exl.lained what had been done? "r. '°e^ann-"es `'ir. `r. Greenbaum- 4nd you subsequently received a notice that -our aipii- cation was denied? :AoCann-"es Sir. Ir. Greenbaum- 4nd yon took this adpeal : :r. !cCa -"es sir. Mr. Greenbaumm-I offer in evidence the min rtes of the second hearing before the Building Commission to which r. :c ?ann has just testified. 4s in this case the proposed changes were subsequently modified and altered on the suggestion and request of the Building Co nmi '7ion and it al_iears b- the minutes that the suggestion of the Building Commission was ca-ried out by . 1r. '.to;ann. Mr. wink was designated b' the Building Commi:cion to see that this work was performed , and at a second meeting of the Building Commission 3r. 'ink reported that his instructions had been materially co:n,lied with and he voted i • favor of granting the hermit. I also offer in evidence photographs showing the terrace as it now exists . ;hair:nan Roscbottom- admitted. "r. Greenbaum-"'ill 'ou ex,lain to the Board the condition of the grade between the side porch on the builling on the rear line and the inside line of the roierty on which the terrace is located? "r. Iclann- 4t the resent time the flag stones are set in dirt. The*, are .about two-feet four-inches belo•,v0 th tol of the rook at the rear of the terrace. the front side, the ter- race wall is about four-feet six-inches above the ground at the front part of the house. `r. rree';baum- 4nd that has been graded back to the front of the ter- race. Jr. FoCann-'es Sir. (4) '7r. Greenbaum-How high from the adjoining ide-line grade is this terrace? '.r. `oCann-I would car about t vo-feet six-inches at the high ;,pint graduating to about ten to twelve inches at the low points. 'r. Gilieran-That is the distance between the main structure of the house and the side-line on the terrace side? °r. :`oCann-I have here a certified survey made br 1. J. Foote C. T'. of Larahmont, N. v. kt the front part of the building it is 6.39 feet and at the rear part 6.41 feet. 'r. Gilieran-''111 u look at the plan again and give us the distance between the aain structure of the bui_ding and the side line at the rear? ::':oCann-I should say about thirteen-feet. Possibly 1:;.6 feet. Mr. Gilleran+?'o you know the distance, independent of that curve"? '.r. :ToCann-slithin an inch or two. Ar. lilleran- Ind nou can testify personallw as to that distance? ,.r. .".cCann-yes ^ir. Gilieran- 'hat i the contour of the property along that side: is it even, and which way does the terrace aioke, away or toward the building? Ir. ToCann-Level, at right-an-les. "r. Gilieran- 'h t i the slope of the property, does it sl pe from the rear to the front or from the front to the rear? Mr. .:eCann-It slopes toward the front. It is higher in the rear than in the front. This is a co.mllete curveshowing the completed building and the proposed porch. I 'ire / up the suested changes, also submitted a list of the shrubs to be used, in detail, size of the shrubs , with the suggested changes on the :,ide line. ?arnor- This construction that you defene as a terrace is built as I understand it, from the foundation of the house out to the division line between the "eldon property xw* the property adjoining on the 'est? Jr. ' elann--Iithin six-inches. 'Tr. ' avnor-"hat is the heighth of the construction there above the level at the front of the adjoining property? ':.r. rlcCann- ibout four-feet six-in-hes. Mr. Raynor-%nd in the rear? _fir. a ann-Two-feet and Four-inches below the rock grade. 1ftr. 3a-nor-vow, this oo _struotion is covered with Yr. :tcCann-The ter .ace?, `9ith flag :,tones set in dirt. Ir. Ra"nor-It has a rail along the portion nearer to the adjoining pro_-erty? Ir. .'c ;ann-"es Sir. .`.r. :a-nor-How high it that rail? Ir. ti:oCaln- Three-feet and six-inches. ( 5) Yr. Raynor-So, that at the front and irnnediatel r ad joinin:; the proper`,r to the - e yt , "ou would have a construction of one form or another? Mr. Greenbaum-I object , as that is a matter of opinion. �r. Raynor-You have a retaining along the side? 'r. t;o;ann-'es Sir. '.r. Ra;'nor- tnd you have a retaining wall alon., the front? ir. ` c ann-s'es "ir. :11r. Raynor-Ind in addition to that, you havc on toy, of this consttuo- tion, an iron fence? Ir. o;ann—ea Sir. Ir. Za?nor- and the sum-tote of the heighth of the wall and the iron fence is about nine-feet from the corner of our neigh- bor's pro;ert '? ''o Tann' es 'r. Greenbaum-There is nothing in the Town ordinances that prohibits iron fences or side fences of an" nature. Toss-"ou say that it is not at`,ach-d to the house? T'c?ann-so Sir. Yr. Cross-T,owil close to the houe does it cone? ''o;ann-It is not attached anywhere. It i set in d:rt. 'r. ^ross-i?ow close to the house is the inside of the terrace? "r. LTo 3ann- about one-inch. Mr. Cross-Is there a donrwaa leading out of the house onto thee flags tones? :Ir. ''c Tann-"es Sir. "r. ;ross-From some other part. Kr. ':'c^ann-Yes Sir. 2r. Cross-You sa', that this is a terrace. Is it considered a part of the structure? gr. MoCann-No Sir. Er. CCro.3s-'"hen attached to the house? Ir. McCann-No Sir, Ir. Cross "our, retaining wal. conieots? #oCann-The wall is attached to the foundation. Ir. Cross-The retaining wall supports the terrace and comlects °•:pith the house? "'r. MoCann-'es Sir. Cross-ou would not sag that the foundation was part of the house? \fir. Mclann-No, it is holdin:r the terrace and not the house . "r. 3reenbaum-"ou have two retaining walls , haven' t - ou? rr. "cCann-"es Sir. ( 6) 'r. Greenbaum=ou have an open brisk construction there? 'r. 'o Cann--es sir. • °.r. Greenbaum-The retaining wall is for the purpose of taking car of the drive-way into the garage? 'ioCann-'es Sir. "r. Greenbaum-The walk that goes to the center of the house, -•ou have a retaining wall and below that 'you have the brick? Mr. McCann--es Sir. :.4r. Greenbaum-1f that were part of the house, -'ou would be violating the zoning ordinance. 'c Cann- es Sir. Mr. Greenbaum-''ou have retaining walls on the drive-way to the garage? Mr. so''ann—es Sir. Mr. Greenbaum-Is it customary to show these on any plans? Mr. McCann-lo Sir. Mr. Greenbaum- ind you have retaining walls built to hold the earth on both sides of the drive-way. Yr. MoCann—es Sir. Mr. Raynor- ire any of the .e retaining wails built within the six-foot line set-back. Ir. McCann-The retaining walls hold the dirt within six-feet of the side line. Ir. Raynor-?n the right? Ar. 7oCann-)n the side. Ir. :Toss-That is not considered part of the structure? Yr. : c?ann-No Sir. Cdr. Cross-There is a concrete wall built up to the side-line and touches the house? Mr. McCann-The drive-way wall is not part of the structure. Mr. Cross-''r. `o?ann: Is this a NtiiNtlita porch? Mr. lc?ann- in open terrace. Mr. Cross-That is the nature of this building as to construction? Mr. :cCann-Brick and stuoso. 'fr. Cross-So that this form of structure that rou call an open ter- race , would be for porch purposes; "ou -;aid the main building -vas stucco and brick? Mr. McCann-"es Sir. Mr. Cross-Is this a copy of the a_ lication? XrXX: IMMTAUfig]!'. Mr. Greenbaum-This was done after the building was co:n,leted. Mr. Raynor-On what physical hard hip lid you base your application for relief? ( 7) Mr. Greenbaum-I object. '."r. /aynor-"ou are not going; to attempt to prove a hardship? 'r. Greenbaum="ou can see that there is no hardship and no variance and there is no re uirement for a variance. Raynor-The law is that we have no authority to refuse the Building 'omtnis Sion unless there is a variance. If no variance is asked for the rase should end now. The law is that this Board has no juris 'iction except in a case where there is a hardship, therefore if --ou areRoing to prove or attempt to prove a hardship and that a variance is asked for you haven' t any case. 'er. Gilleman- ,.y opinion is that I can mandamus and I am not alpeal- ing to Your Board for an" variance. Mr. Greenbaum-I offer in evidence a letter to "r. `'os bot om by the "own :oursel, `r. Gamble was present at the hearing before ,he Building Gommiss ion. The answer i. in Ir. Gamble's letter. There is no hard -hip. Greenbaum-I will excuse 'r. :Tc Tann and ask 'Ir. :fink to testify. Oath administered to -'r. :link by lhairman 3o- '3bottom. 'r. Greenbaum-::r. :ink, you are one of the wilding commissioners of the Town of =;amarore ek? ::r. =link-I am. Mr. reenbaum- ind you were present when :Ir. Bio 3ann :.jade a re.:uest for an occupancy permit ? Mr. ::ink-I was, '+3r. Greenbaum- ind -ou were de:lignat©d by the Building ^ommission to see that +certain alterations were carried out be 'r. '.,o 3ann? 7r. Mink-I was. 'ter. Greenbaum- 'ind you attended a subsequent meeting of the ,3uilding "ornnission? Ir. 'pink-'"es Sir. Mr. Greenbaum- Ind at tha`. tine You voted in favor of granting his permit? Mr. :"ink-I did. Greenbaum-"ou saw the work that he had done? 'Sr. "ink-'es "ir. Mr. Greenbaum-''hat is your rrofe -ion, "r. Fink? :!Tr. "'ink-I am an architect. 'r. Greenbaum-'Tow long have You been an architect? Mr. '•ank-^wentY-five -ears. Ar. Greenbaum- ind in your opinion is the terrace as it now exists any portion of the 'Ieldon building? `r. ''ink-In my opinion, it is not tart of the buil ling. ( 8) 'r. Greenbaum- Then !ou saw the structure after the i.nprovements were :lade, how soon did --ou past on them? `�. Fink-No pore than the next da' or two or three dais after. 'r. Greenbaum-"ou have not seen thein since? :?ink-No Sir. `r. Greenbaum-Do recall , in the earl" part of the testimony of "r. Molann, he testified that he took down the awning and rail? ::'ink- es Sir/ "r. Greenbaum-Later on "r. _.io Gann said there was a rail on the structure about three-feet six-inches in heighth and when you examined the pro .er'•r last was there a hand-rail? Rr. 7Tink-The.re was a rail on the "est side. ':r. Greenbaum-3n the f'ont? 'r. 'Rink-'?o, none on the front. There was a rail on the front and the rail which I told -r. '�o�ann to take 'down, he took d o -n, while I was there , but left the rail on the 77est side. 7r. Greenbaum-But there was none on the f-ont when you made our examination after the struoture was oom -leted, running Fast and "'est? 'r. 'ink-'"hen I went there to make this insjeotion, there was a rail on three sides, the °;orth, `'outh and -est. I told 7r. Mo?ann that the rail on the south and North sides must be removed and while I was there, he started to remove them, leaving the rail on the 3 ice line. 'r. Greenbaum-Do you have ani knowledge that there is a rail on the Forth side? -r. :fink-No, I am assuming that this was left off. Radnor=ou are fa.n:liar with the sections of the Zoning Ordinance, are you not? :.r. -ilink-ves Sir. Mr. Ra,,nor4"ou are familiar with Seoton 11, that two side-lines shall be established within six feet? Mr. Fink-"es Sir. Ir. Raynor-Tis terraoe is built within six feet on the "esterlr :Ade of the prof ertr in � que-;tion? `link-"es sir. Mr. Ra"nor-There is no question that it is built wihLtin that six foot area? `."r. 'link-'done whatever. -"r. Ra?nor- 'Tong the extreme -" esterlr side of this construction, you would nay it is how high from the level of the adjoining property? `sir. ''ink- tt the 'Forth edge of the terraoe, I should sat about four feet. ( 9 ) Ra-,,nor- "hat would it be on the South edge of this- terrace? Mr. 'rink-I could not sap, but the iron rail thnt is on top, I believe runs into the South edge. 'r. Raynor-The terrace is below the rook at the south side? "r. Mink-''he average of the present grade is level with the terrace, in other words the terrace is resting on the rock all along the South side. Ra'*nor-Is it a fact that the rock is quite a wars down the grade on the 'outh end, but to tep down from that terrace rou have to take a step of twelve or fourteen inches? Mr. "'ink-About eight-inches. Mr. 3arnor-If this construction was attached to the 'houGe, would rou oal.. it a porch? Mt. :link-7o, it abuts the house. It is not attached to the house. I do not say it is a porch. ' r. Raynor-Tat Raoul i -lou sal:. it? Mr. Mink-I still saw, it is a terrace, 74r. Rarnor-It would be art of the house, wouldn' t it? Mr. Mink-In air opinion, no sir. The fence ooui be attaohed to the house , but not be part of the house. ',r. Cross-noes the Building ^,ommission call an open ter -ace part of the construction of the house? ITr. .:sink- leli, it all depends on the grades, I suppose . "Ir. Raynor- That do roa consider when rou pass upon a plan`? Mr. Mink-Keep within 'J he rest-ictei areas, There are various ars of building a terrace. Rarnor-If a plan call - for an open terrane abutting a portion of the building, would rou take that into oonsideration? Mr. Mink-I can' t answer that. There are too mane parts coming into it. You must tell me what kind . r. 'Raynor-If a plan shows that an open terrace in called for, would rou take into consideration the distance between the side line of the property and the open terrace? '"ould that be an open terrace? Mr. :Sink-I con::ider that this is an open ter-ace. - ' t for m� own consileration, ifit is ntirel constructed, Mr. Ra nor us o era e v so that it is free fro :: the house, so that rou had to con- struct site Trails and the floor, then would rou sar that it was part of the house? Mr. "ink-If rou will explain an open terrace to me in your own war, I will answer ani question that •-ou want. 'sir. warnv -''nes this __lan call for an open terrace or amithing else? Ir. '_-ink-It call for an open ter -ace in this particular case. :fir. Raynor-"oald rou say' that this is 11 a restricted area or not? ':kr. :`ink-It is within the restricted area. (10) '`r. 'a--nor-?overd&i in the construction of the house? '. . ''ink-'"o, I still maintain that Imu:3t know what the construction of the terraoe is. 'r. Raynor-''"ould you not care what kind of a floor? r. Mink-Oh ^es I would . Fr. Raynor-If another plan came up to you and you saw that plan and it said an open terraoe, would you consider that a viola- tion of the Zoning Ordinanoe or not? .'r. "ink-^Tot if it is oonstruoted like this , I must know the .onstr- uotioa. �r. lainor-'hat is an open terrace? 'r. :'ink- in open terraoe is just a plane ^ou walk out on to. `r. Raynor-;an it have any kind of a floor? and you would not con- sider it part of the building? _`r. Mink-No, it all depends how it is oonstruoted. `r. 3ross- ou are confusing, I knwo as much about construction as --ou do. :_r. :'ink-Here, you have a definite problem. Yr. Raynor-Row would you propose to oonstruot this terrace so that it would be part of the structure? 'r. 'ink-The pan it Was originally constructed with a floor, with a rail arou:d it and an awning. The railing made it part of the hone. 'pow he has taken all that away and all that remains is a continuation of the walls and it is still an open terraoe. 'r. "ink- "e have another problem with a piece of property that slopes up. The man still wants to build a terrace. Fe takes that grade and he attempts to level it off. In order to do that he builds a retaining wall. The use and oclupancy is still the same as a level piece of ground. ''r. Rv'nor-Then in other words, when a plan goes; up to the Building ;o_nmis ion , and it is .narked an open terrace rou do not give that any consideration? 7r. 7'ink-1e investigate every problem. 7r. Raynor-Take the case of a man who builds a retaining wall on all sides. 'r. rink- e would object to that. 'r. Raynor- ''hat is the diff'erense between that case and the case before us? "r. .7ink- 1 whole lot of difference. "ou would have to assume that the :can h:s the right to his land. "ou have to be logical about these things. The man has the right to improve his property and the right to landscape it with ground wails , foundations etc and aii kinds of things. They are all con- structions . The question is, the taking away of light and air. ( 11) Mr. Smith-''resqming that ''r. 'io;ann, after filing the plans for buil ding his house efi7ected to put this terrace on the front, i n %tead of on ttz side, what would have been your actioh? Ir. Fink-It would have been denied. Mr. Smith-He has eructed a structure. He has not continued hi<; present grade. That il the average of that lot? lir. 'Mink-17e wii , take on the -ouch s ode of his house and it is plus about twoand one-half feet above the grade. The rook is away outside of the grade . :r. T-ou have rock on sir-thousand s ;uare fe-t of ground that took up one-hundred square feet, would rou consider that the average level of the ,lot? ;r. "ink-No Sir/ :r. ¶'.pith-'"h•at would rou consider the average level in relation to this particular area? :r. 'ink-That is not six-thousand square feet. That is the area? _'r. n pith-Let us assure, there was no house on the Glot and the area is six-thousand square feet. On that lot is an out-crop- ping of rock that Ai;ht cover mne hundred s ;u t.re feet above th ground level, what do rou oondider the average grade of the plot? ''r. sink-It is the average of all -*our levels taken over the clot. Ir. Raynor-'could rou consiler that this terrace is art of the -ide- --ard of this lot? 'Sr. link-No Sir. . Ra"nor-Is it not art of the house? Ir. link-No cir. ',Mr. Raynor-Then l:: it art of the side-card? "r. :link--es Sir. 'r. Raynor-Ho-7 do rou reconcile that frith the Zoning Ordinance? :`r. 'ink-Side -•aris shah be within six-feet at the curb level of either lot. Mr. Rarnor-'The purpooe of this problem i- to give light, ventilation and air? Ir. Mink-There there is a contour involved, rou have to take the average of the lot. It i ; in the Building code. 'Ir. Smith-Let us ae.sarIle that after this so called terrace was built that it °*'as egtipped :with a awning and no rail such as rou described bef-)re rou requested changes to be made, what would rou call it? .'r. fink- 4 porch. 'r. "hnith-For what reason? 'r. 'Fink-"e have to be logical about this thing. -?e have 66 draw the line so:ze where. It becomes a logical part of the house. It is a protectIon. It is a mart of the living neves-$ities of that house. He is :nerei en jo--ing the living condition of the house. It is outdoors and rou -aapT uo:: of T :-uTS' :1 • autat.UTpdu au }uv4. oM+ r- .... rc==== L'T eot ...za% ua'o ut: %tu'' aaNTsuoz ucT :sTma:oc, 2uTriTn au% p?noh: `,T a ano sao2 2utumt ut put ucT%ona%suo:: auasaad ,,q1 SAT acua. aq ua'io lti punoat qrq sT 2uTTTt. t JT-:.soaC; •.1 . •Hoax Sou op I-xUTi- saw aaag quTad sTu% pt'i -tattqu aa,z& 'Kyt; •atea au% 4t A.TUC. IUT 'ait •4o7 s ,uor.T_a:.. '.z:,. 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'se -xuTk: •a,", L2uTPTTnq au% 0% peua'stj TTtaputu, E stir. aaauj put paustuanJ put .eu.mns sTUT AuTuR?t cat ua Tm pe' ITnt)a uaaq Ott axnvora%s aqm aT pasTa;7ns aq c -rom nor,-ugTtu , •a;; • putt 1,tu1 rasn 0% 1,g2Ta au% u:,q aAT2 01 eALu (ZT ) ( 13) ation the side line restrictions, that it is a part of the house and not allow it? That is to prevent arr'bodr from put ting up a structure and calling it an open terrace similar to this arl putting up a fence around it ani later on putting an miming over it? "r. Greenbaum-I object because it is characterized as an open terrace. 'r. ^rose-If a plan calls for an oeen terrace with a railing around it, if they were to put ui later an awning over that, that would be a violation, -et the original meaning from the ilan w:'uid not be. Ir. 'ink-The onir thing that tefines a porch would be the awning or some kind of a rook over it . :rr. Greenbaum-I offer in evidence, the opinion given b^ :'r. alp Gamble to the ohair. :n of this Board . "r. Greenbaum-I will ask :.ir. Brewer to please take the stand. Oath administered to :'r. Brewer br chairman lossbottom. `'r. Greenbaum-'ou are a iember of the Building ?omaission? °'r. Brewer-I am. "r. Greenbaum-"ou were one of the :members who_ sat at the a. Liication of r. Ic?ann for a certificate of occupancy? :Gar. Brewer-I was. `fir. Greenbaum-rid rou re .nest 'r. Gamble to get an opinion from ''r. Esser on this plan? ;:r. Brewer-No. sir. :r. ''Greenbaum-"id ''r. Gamble give an opinion an.3 submit it to rou? "r. 7?rewer-77o 74r, but let me qualify that. I was requested by the Board of 'tppeale to ask ':r. ser for his written opinion because the chairman was in New "ork most of the time and he knew I was in touch with fir. rsser. I sirpli acted as messenger. 'r. Greenbaum-)id "ou receive such an opinion? :"r. Brewer-I had a copy. '.'r. Greenbaum-Is this copy of the opinion part of the file that -ou have? 'r. Brewer-'es that was tee letter. 'tr. 'Treenbaum-I offer that opinion as evielerice. ''r. ?a 'nor- tn Gtr+ determination as a member of this Board I refu: e to consider the opinions of Town ?ouneel Gamble and "r. T'sser on this question. r. "mi th-I had no knowledge that the ohair :an of this Board had re .lues ted an opinion frori atterner Esser and I refue to accept it in uy deliberation of this case , Greenbaum-'(r. urewer, rou were present at the nearing of the Building lo:ninieeion after June 7th, at which 7r. 4o3ann's second ai.plication was denied? <_r. Brewer-I was. l4) r. Jreenbaun-hid sou vote "No ' on that a;: plication because sou felt that this natter had been twice sonsic1ered br the Board of i_ jeals and in _leferenoe to this Bo 1rd it should be re-submitted? ':`r. Brewer-I voted 7o. "r. lreerbaun-Did sou sive that reason for voting "No" and place it on am record? 'r. Brewer-No, I did not liaoe it on any record. '.r. xrec nbaum-.'rr. Cross is now juestioning :;r. Brewer on his own behalf an the question of the construction of this terraoe, beoause I have not questiore d "r. Brewer on this ,mention at all and he been es the fitness of ".r. ''rosy. r. 'Toss- "ould you consider an open terraoe as part of the present building? 'r. Brewer-I have not seen the tern sce for several seeks . :r. Cross-'/ould Mou consider, looking at this plan, is it an open terrace ale part of the structure of the building? 'Ir. Brewer- 1s shown here? Yr. ,rose- 1s shown there . Mr. Brewer-'dot without at first asking sole questions. I would not give any ;onsiderat.ion, I would not forts an opinion 'miens I had opportunity to ask the builder, the out-line of the terrace shown. is it was when :sr. "ink reported back to the T1uilding ,o.nmi=,.,ion, I would consider it a terrace and not pert of the building. ' r. Cross- ''ould sou ask the builder to describe it to 'you and then answer the question? ',Tr. Brewer-I have answered it. I have said that 'r. wink rejorted back to the Battling Tommi ,Bion the conditions that existed in ac'ordance with his instructions to :r. 1o :ans . I will clarify that. I had not considered it was part of the building. 'r. ;roes-Chen ' ou would co ndider it an open terrace in i to ,r :sent form': 'r. Breuer-I have _ot seen it. Tr. Cross- "ere 7ou present at the second nearing: 'r. Brewer-No, I was not present at the date of the second' hearing. °r. cross-Then wh- did "ou vote to dens the application for a permit? 'r. Brewer-I refuse to answer. I admit that I denied it. 'r. R 'nor-On what vroun1s': ''r. Brewer-Because : 'r. SoCann did not fol:.ow "r. : nk's instructions in detail. xr. Rarnor-'"hat instr'totions did :slr. :al ans riot fol. sw`: `r. Brewer-His instructLong as `r. :'ink reported then to the Building Commission were that '•'r. STc;ann. should? :make the ter•'m'+e the s 3 ne level as the rear of the property, but instead he made a step of about eigh'•-iuches up on to the terrace . ( 15) "r. 7ross-If '-on do not consider an open terrace as part of s stru tare and not to be taken into oonsiderstien with a si le wail, why is it sent over here? That ie the vio.i 't .on? If there is none, wh-' io it here now? Pkr. Brewer-The violation is that he did not follow the instruc- tions of the Bsiidin ; Coumission. e!r. Cross-If it were :art of the :tr eture eoulj he do it an^ van he wi idod? 'fr. Brewer-I do not admit that he can do it am, we.. he wishes. _fir. Smith-"ou •a' that "r. :.o 3ann did not follow out the instruc- tions of ''r. 9ink in the alterations that were eelde in the structure? ':`r. Brewer-'Tot fulir. One of them was that he did not lower the floor of the terrace. Gmith- 'r. Breyer, ^ou heard 'r. '"ink testify that there wis an ei3ht-inch rise on a portion of the rear of the tereaee? *r. Brewer--es, bccaase part of that terrace is considerably below the level on the '''est. ^rnith.. ou heard •'r. 'Fink testify that the terrace is belo the • averoee grade oo'up,i.ed br it? :.r. Bre•ver='e sir. gr/ 3r ith- tn . becauue of the faot that the flag-stones Fere loeselr laid on it , -ecu do not deem it part of the building? 7r. Brewer-1 do not deem it ;art of the building. :`r' Smith-The foundatien of thi • oonstruotion. Is that tied in with the foundation of the building i eelf? "r. Brewer-l-iere ie no foundation. "r. "rosy-Is the retaining wall tied into the foundation of the hou.e? 'r. Brewer-It is abutting the foun lati )n of the houee to prevent the earth from washing down from the terrace. 71*. ?a-nor-Ther, 7'ou mean that the wall joins into the foundation? `r. Bre ° er- It ooneeots up to it. Mr. Raynor-It is not a part of the foun iat on? 'r. Brewer-I t le attached to it . :r. 'arnor- Ind. the onlw thing that is severed from the foueda':ion is the floor of the porch? =reenbaum-I object tothe ih'nr cterieation of this as a porch. I porch ie part of a house. "r. 7'a7nor-I refer to the terrace . '7he only portion of this so- oalied terrace that ices not touch the foundation of the :you ,e, is the floor of the terea1e . Is that correct? :'r. Brewer-he whole terrace i : right a eainst the house. The terrace is dirt. -ou can have a grass teroaoe or a dirt ter .ace . 7n the Teat site where he is near his nei_ hbor' s £ro,erty he doe i not tereaoe that becau:a he wou_0 have to siol_e • it, the only reason he has a wail ie there le beause. 1.6) ;fr. Smith-The pt rpn=e ( “' the terrace eee, that if he wanted to go out there he oouid . The originjl elan was on a level, now it is on a step ioen. r,on't the original el ns ehow the entire co! truotion of thio side of the house? "r. Brewer-It •vhowed three or four st7-es leading down at that point 'he original plan never attempted that and there is a flitht of stairs leading 'o n fro-a the house out tothat toint . rtr. ?roes-I don' t recall what those plans are. -ou are lheirnin of the Builling Co-amis;icn are --ou not? 'cher wht- was it refereed to the 7oar' of t; ee ala? if it is riot conei'?sred part o ' the strum 1_ure then :vhi' should it be down here? "r. ?rewer-Because the Builiir;x ''omntseion as a whole could not agree. Mr. Troy a-If it is not considered part of the structure and it ie not a violation of the Zoning 3rdinance, whr should this Board it in on it? 'r. Brewer-"ou a_•e seeking an interpretation of the Toning Ordinance . ;r. Crosti-If there is no vi T lation, should it be sent down? 'Fr. Brewer-There ie a violation. Kr. ,'rocs- there', :!r. Bre wer-I : eirt Because of the fact that he lid not follow the int:•uctions of the 3uilding Co:n►aision to make it level. I wont 8a7 it is a violation; some 'nee not say that it was a violation and others '.mould . 'r. Cross-- riginallr it was 3 dietinot violation. one might see it was :and one :night sav not? Ir. Brewer='es. Mr. Ra-nor-If it were referred back, would the Building ^,oi nission take an further action? Ir. Brewer-:f it i.3 contended that it NaU3 not a violation what ie the reason for it beine here? Mr. 'orth-'''e should refer it back_ to them on the information Brewer recited and see what an open terrace is. i th-I do not see that it could be referred bask. Mr. Groes-I don' t think --ou had the right to question :'r. Brewer as to what reasons ewa- ed him. ''r. Radnor-I a .)cove. Th th-"ora. sae, Toa had some ob jeotors up before -"ou. mill '-ou na_ae who the- were? _'r. Brewer-Their names are in our minutes. Mr. Ire nheam-.tie not Mr. Smith o_ +osed to it? Outeide of our Co: mi-3eion wa:o there am other person okeosii it? "er. Brewer r. eei th was there whee area nbaun was there . and :Mr. nelinne7 was not there. (1?) tz . Greonbaun-I i:.l have furnished , photographs also I will sub-tit a memorandum to beoorre a part of this record. 'r. Faith-i will ask 'r. "1eldon to please testify.. 'r. ` allon,a:-aini ,terd he oath b7 :<;r. ousbottom. Jr. Smith- after "r. . (clann made some alterations in the terrace, .that lid ^ou do? ,recnbaum-I ob jeat to that on the ;rounds that this is a hearing on the application for the ocu;,anoyr per:cit. 'er. 3reenbaum-I object to arz'thing that Tr. '"eldon testifrs to t';.at he has done since the sate of June 7th. rr. h3ve -• a an awning covering that terrace? 'tr. Greenbaum-1 object; the testimony showing that there was no awning on the date of the al4li ration. 'r. "mi th- It the time of the apiii ration of June 13th was the terrace e;juilied with an awning? Ir. . ellon-I am not ,sire of the date sufficient to sad* whether at the ti:ue of the a_rlication there was an awning. The awning was removed at the time :'r. Mo 3ann made the alterations. `fir. "mi.th- 4n: =-ou noui.t not state when that awning went back? Mr. Greenbaum-1 obje , L, Yr. '2arnor- id "ou at an tine u'e thi terr=zoe with an •iwning coverins it, attached to the house? r. ''eidon-"es Greenbaum-')i3 'tr. •b ann ask -au to have it removed at the time he Dame there with 'ar. :tr. ..relion-re did ,