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HomeMy WebLinkAbout1999_07_21 Zoning Board of Appeals Minutes AMENDED MINUTES OF THE REGULAR MEETING OF THE ZONING BOARD OF THE TOWN OF MAMARONECK JULY 21, 1999, IN THE COURT ROOM, TOWN CENTER 740 WEST BOSTON POST ROAD MAMARONECK, NEW YORK Present: Thomas E. Gunther, Chairman J. Rents Simon Arthur Wexler Paul A. Winick Absent: Jillian A. Martin Also Present: Judith M. Gallent, Esq., Counsel Ronald A. Carpaneto, Director of Building Michele DiEdwards, Public Stenographer Terranova, Kazazes & Associates, Ltd. 49 Eighth Street New Rochelle, New York 10801 Marguerite Roma, Recording Secretary CALL TO ORDER The meeting was called to order by Chairman Gunther at 7:50 p.m. Mr. Gunther informed those present that only three Board members were present. One member, Jillian Martin, will not be present this evening. The Board is waiting for the fourth member to arrive. For an action to occur, three members must vote in favor or opposed to that application. The Board will be happy to hear each case. When your case is called if you would like the vote held over until the next meeting, it will be done without prejudice. The Secretary read the application as follows: APPLICATION NO. 1 - CASE 2352 (adjourned 3/17/99;4/28/99;5/26/99;6/23/99) Application of Eugene Pressman requesting a variance to legalize an existing pillar. The pillar as constructed has a height of 7 ft. 3.5 in. where 6 ft. is permitted pursuant to Section 240-52B for a pillar in an R-50 Zone District on the premises located at 209 Hommocks Road and known on the Tax Assessment Map of the Town of Mamaroneck as Block 417 Lot 107. Mr. Gunther said that this matter was adjourned from several other meetings, March, April,May and June. At the last meeting, there was a bit of discussion between the Board members with regard to a resolution. A number of proposals were made for resolutions. At that time, counsel was asked to draft resolutions both for and against the application based upon the discussions at that meeting. Unfortunately, the recording device used to record the meeting malfunctioned and the Board had to rely on the public stenographer's transcript, which did not arrive until a few days ago. As a result, the Board was not in a position to complete the draft resolutions. In the interest of covering all the points, the attorneys for both Mr. Pressman and Mr. Miralia were requested, if they cared, to present in written form, information summarizing their positions on the matter. One was received today and possibly another will be received. Therefore, there will not be a vote on this resolution today. Mr. Gunther asked if there were any questions from Board members on this matter. Zoning Board July 21, 1999 Page 2 Mr. Wexler said he wanted to make clear a few items that are not factually correct in Mr. Maker's submission;page 2, the second paragraph states, "Even when camouflaged by the unsightly mound of earth .... the pillar is 21.5%. The next sentence, .... (as suggested by one Board member) would reveal the pillar's true height of approximately 9 feet 3.5 inches".... Mr. Wexler said he had said it was 93.5 in. Mr. Maker said Mr. Miralia gave him that information. What Mr. Miralia said to the extent that Mr. Wexler might think the last sentence of that full paragraph on page 2 is to be attributed to Mr. Wexler is a mistake or misinterpretation of what was written. All he meant to say is that a Board member did suggest that the mound be removed. If that mound were to be removed, the true height of the pillar would be 9 ft. 31/2 in. tall from pregrade before there was any filling. Mr. Wexler said when the statement was made, he asked Mr. Miralia what the height was and he said it was 93.5 in. That is why Mr. Wexler said a few inches wouldn't make that much a difference if he removed it. Mr. Wexler said he physically went out an measured the pier today. The pier actually measures 87 in. to the dugout part of the pier. If the slope of the grade is extrapolated that went across from that point, it is not much further from that measurement. Let's assume it is 93.5 in. It is not 111.5 in. This is wrong. Lauren Miralia addressed the Board and said he lives across the street and would like to help shed some light on Mr. Wexler's and Mr. Maker's comments. Mr. Miralia also went out and measured again. To be totally accurate, he has no knowledge of how the Town's Building Inspector measured nor how anyone else measured. He said he only used the highest side of the pillar,which is the most downhill,to the grade where the old macadam surface that used to be on the Reserve Strip was covered over by dirt and rocks, the real grade which no one has excavated down to until today. What Mr. Wexler saw today was dugout, and does not go all the way to the grade level. Mr. Wexler said he measured to the dugout point, which was 87 in. on the so-called property line. Mr. Miralia said the dugout which he did no one else did. It did not go all the way down to the grade. Mr. Miralia said the measurement was 9 ft. 3 in. Mr. Wexler said he will go out tomorrow with an automatic level with Mr. Miralia, if requested. He was there today, and in no way is that 15 in. lower than what Mr. Wexler measured today. He physically measured it today. He measured all the other piers. Ms. Gallent said that Mr. Carpaneto went out and measured and for purposes of the official record, that is the height. If anyone disagrees, they can appeal his determination. Mr. Miralia said he did not come before the Board to argue the height again, as it has been done for approximately four years. Mr. Miralia would be happy to meet Mr. Carpaneto and measure it, but stipulated that is not the issue to him of how high it is, whether it be 93, 9 ft. 3 in., etc. He would stipulate that what Ron got is O.K. Mr. Wexler said two paragraphs after that it states, "There are no other pillars on the section of Hommocks Road lying within the Town with the dimensions of this pillar." Mr. Wexler asked if that meant the actual measurement. Mr. Miralia said yes. The only pillars he could find that even approach this were 7 ft. 5 in. at the very end of Hommocks Road. Mr. Wexler said measured from the top of the cap to the base of the pillar, it measures 8 ft. 5 in. or 99 in. Mr. Wexler asked if Mr. Miralia looked across the Reserve Strip to the stone pillars on the other property that measure 77 in., and asked if he measured them. Mr. Miralia said yes. Zoning Board July 21, 1999 Page 3 Mr. Wexler asked about the one at the corner. Mr. Miralia said he did not measure that, because that has been reconstructed recently. Mr. Wexler said when one comes down that Strip, there is a stone arch on the pillar. When the vertical member of that stone arch, where it is a pillar, is taken, it is 87 in. high from its base. Taken down to the macadam, it is probably even greater. Mr. Wexler just measured the physical of that pier, 87 in. high, right across the way from Mr. Miralia. It is about the same as the one Pressman has built. As one goes down Hommocks Road to 205,just on the other side of the town line but on the same street, the piers are 7 ft. 11 in. in height, 93 in. At 204 Hommocks Road, the piers are 84 in. high, which is 7 ft. high. The piers Mr. Wexler measured are more or less within the range of the height of what Mr. Pressman's pier is. The statement Mr. Maker made that there are no piers of that dimension only could mean the exact measurement of that pier, the width, height, depth, which is irrelevant to this question. Mr. Wexler feels that the presentation of that is misleading. Mr. Miralia said he did not come to speak on that issue, because it is of no point. They have made some measurements that have been discussed for many months. He respects Mr. Wexler's knowledge as an architect a great deal. He is talking about the harmony of the pillars being together and being in equity. Being equal is not even the question, because they can achieve that fact within the Town Code and Ordinance as it exists today by simply lowering the pillar to the same height of the other pillar. Frankly, it is not an equity to start with. Neither wall that touches either pillar is even close to being high. One wall on one side is 5 ft. high. The wall on the other side is 2 ft. high. There is no visual symmetry that Mr. Wexler has been referring to. Mr. Wexler said accept for the two pillars that stand as you look at them. Mr. Maker said, as Mr. Miralia has said, then lower the higher pillar. Mr. Wexler said that doesn't do it. Every pair of pillars on that street are symmetrical. Mr. Maker said they are suggesting that one of the criteria is, is there another feasible method by which the applicant can achieve what he wants. If he wants to have pillars, he can have two pillars, both of which would conform with the Ordinance. He doesn't have to have them that high. He asked if Mr. Wexler also measured the wall that abuts that particular pillar, and is it correct when Mr. Miralia tells him that that wall is two feet high? Mr. Wexler said he would assume, not measuring it, it is somewhere in the area of 2 ft. high. Mr. Maker said when Mr. Wexler talks about proportionality, there is an 871 in. pier and a 24 in. wall. Mr. Wexler said when you look at the pier and you see the right side of those piers are covered by vegetation completely,what you do see is the pier. You don't see the wall unless you get up to it and look down behind the vegetation. What you do see, as a man-made structure, are two piers. The piers, like every other set of piers that are on Hommocks Road or probably anywhere else in this community, are level in height at the top of those piers. Mr. Maker said they still can be, if the pier being discussed is lowered in height. Mr. Maker said to keep in mind that the Ordinance suggests that pillars should be no more than 1 ft. higher than the wall to which • they are attached. Therefore, if the higher pillar is lowered to the same height as the legal pillar, that legal • pillar is only 1 ft. or so higher than its wall. That seems to be consistent with what the Ordinance says. On the other side, the one Mr. Wexler is talking about, if that gets lowered to the same height as the pillar that is considered legal, you have symmetry. If the vegetation isn't there, you also have a pillar that is more in harmony with a 2 ft. wall than the 871 in. pillar that exists. Zoning Board July 21, 1999 Page 4 After further discussion, Mr. Maker asked if there were any other questions from Board members. There being none, on a motion duly made and seconded, it was unanimously RESOLVED, that the Public Hearing of case #2352 be, and hereby is, adjourned to the August 18, 1999 Zoning Board meeting. Mr. Maker said if time prevents resolutions from being prepared by counsel to the Board, can counsel be notified in advance of the meeting. Ms. Gallent said absolutely. Mr. Maker said as a point of order, that counsel for the Board will be preparing resolutions for review and circulation among the Board members that may or may not be enacted that evening. Counsel for the parties will be advised if that happens and the matter will be held over until September. Mr. Gunther said that is correct. Ms. Gallent said Mr. Gaines might or might not be responding to Mr. Maker's letter. For the record, if he does respond, she asked that a copy be sent directly to Mr. Maker. The Secretary read the next application as follows: APPLICATION NO. 2 - CASE 2358 (adjourned 6/23/99) Application of Deborah and Bill Walters requesting a variance to construct a 21/2 story rear addition and front entrance vestibule and porch. The 21/2 story rear addition as proposed has a side yard of 6.4 ft. where 10.0 ft. is required pursuant to Section 240-38B(2)(a); a total side yard of 14.5 ft. where 20.0 ft. is required pursuant to Section 240-38B(2)(b); the front vestibule and porch as proposed has a side yard of 6.4 ft. where 10.0 ft. is required pursuant to Section 240-38B(2)(a); a front yard setback of 20.0 ft. where 30.0 ft. is required pursuant to Section 240-38B(1); and further, the rear front and rear addition increase the extent by which the building is nonconforming pursuant to Section 240-69 for a residence in an R-7.5 Zone District on the premises located at 197 Murray Avenue and known on the Tax Assessment Map of the Town of Mamaroneck as Block 113 Lot 318. Mr. Gunther informed those present that this case was carried over and adjourned from the June 23, 1999 Zoning Board meeting. John Brice, the architect, of 1039 Prospect Avenue, Pelham Manor, New York, appeared. Mr. Brice • referred to the revised copies of the plans the Board had received. Mr. Brice recapped what transpired at the last meeting. He said proposed was a 21/2 addition which is 8 ft. from the side property line where 10 ft. is required. After a lengthy discussion about the possibility of changing and reducing the plan, the suggestions were reviewed. Some suggestions were made about how the impact of the addition could be mitigated. In the previous design the elevation facing the neighbor to the north had a large gable end which faced the neighbor on the 8 ft. setback side. Mr. Brice reduced that gable entirely, approximately 38 ft. •? as was stated last time, and changed the entire roof line to that side in order to eliminate the tall gable and •• to create a hip roof. The roof on the side becomes a roof sloping back, thus reducing the wall expanse towards the neighbor to approximately 7 ft. That is the major change made. In addition, changes were made to the inside, changing the location of the chimney and the fireplace, etc., which are not an issue. Mr. Brice said a tree pathologist was brought in to look at the tree involved, which was a part of the objection of the neighbors, to see whether this project would require the removal of that fairly large tree in the back that provided shade for both the Walters and the neighbors. The tree pathologist was brought in to see if the tree could be saved, who basically could not give any assurances that the tree could be saved. After two evenings with the pathologist, it was decided that they would adhere to the original plan Zoning Board July 21, 1999 Page 5 and take the tree down. However, the Walters have decided to install some new large trees to replace the one being taken down. Mr. Brice is presenting a revision made based on some suggestions from the Board made at the last meeting, to mitigate the impact of this project. Mr. Brice hopes this will allow the Board to look at this favorably. Mr. Brice or the Walters will answer whatever questions the Board might have. Mr. Gunther asked what the impact of the changes was on the inside. Mr. Brice said primarily the relocation of the fireplace which was in a corner arrangement with a chimney at the end of the gable. It was moved to the middle to bring the flue up. Mr. Gunther asked about the loss of space on the inside. Mr. Brice said the loss of space on the inside is basically in the family room. The corner fireplace is now in the middle of the wall, making the room less useable in the sense of the layout, but it is still workable. It changed the relationship in the closet upstairs. Mr. Brice said the changes are nominal, but are acceptable. Mr. Gunther said they are minimal. Mr. Wexler said the basic change is the loss of headroom in the attic. Mr. Brice said that is correct. At the last meeting that point was brought up that the attic in the new area, because of the fire codes, is unusable and unoccupiable. The loss of headroom would be acceptable. Mr. Brice also pointed out, in the reading of the public notice, that they had already removed the front vestibule and stoop from the application, which is reflected on the latest drawings submitted to the Board. Mr. Gunther asked if Ms. Walters wanted to add something else. Deborah Walters, of 197 Murray Avenue, addressed the Board. She said after discussions last time, they feel as though they have done exactly what the Board had asked. They also made sure on side of the house in question that the windows will have privacy glass so there won't be any intrusion of privacy. She is seriously looking into installing the biggest possible trees, entertaining the idea of helicoptering the trees in. She said she feels as though she is doing whatever the Board has requested, and have done whatever they can to make it work. Mr. Gunther asked if Ms. Walters can give them more information about the tree plan. Ms. Walters said the man that came to discuss the trees was a highly qualified person, has degrees in this field and is not someone that just does landscaping. Unfortunately, she does not have his card. He said whatever kind of renovation is done in that area, it would still have a great impact on the tree because the roots are so big and are all under the house under that section. If the applicant wanted to chance saving it, it would more than likely die anyway. They would have to raise the entire back of the house on stilts i and will create other problems. He informed they that they would have to shave off the major branches of the tree on both sides to balance it. He said he would consult with them about other types of fast growing umbrella type trees that would grow quickly, and would investigate the best type of tree to install there. Mr. Walters said she will continue to consult with him about the tree issue. ' C., Mr. Carpaneto said they will not be able to use a helicopter to bring in a tree. a. 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. Zoning Board July 21, 1999 Page 6 Robert Spinogatti, of 201 Murray Avenue, addressed the Board. Mr. Spinogatti said they have had a month to consider the impact of the proposed request, appreciate the modifications to the plan,have spoken to the neighbor and appreciate their efforts. The side yard now is 10 ft. for which it is zoned. He thinks that is a modest base to begin with. What is going to result is still a two-story structure within 8 ft. of the property line which will greatly diminish the quality of Mr. Spinogatti's living space. At the last meeting some of the Board members thought they would go out to the property. If they did, they would see directly in front of the structure is the outdoor living space, the deck. They way the house is situated, all the space revolves around that whole side of the house. On the other side of the house is a staircase, no useful space there,just two windows on the staircase and pointed out the living space on the house; the sun room, living room, and the one dining room window that faces that side of the house. The two doors to the rear yard open up to the deck that is directly in front of where the whole structure will be. All the space in that particular house is geared on that space and will have a dramatic effect on the air, the space and light. He feels there also must be some safety issues, being so close. Mr. Spinogatti asked the Board to please uphold the 10 ft. side yard. It is a modest space, and the proposed addition will have a negative effect. Mr. Spinogatti asked that the Board protect his rights. Mr. Spinogatti asked if there is a minimum amount of space required in a side yard. He asked if there is an absolute number, can it be kept at the 10 ft., as it is a modest amount of space to have. Mr. Gunther asked if there were any other questions. Mr. Carpaneto said the space is in excess of what the New York State Fire Code allows for separation between buildings. Mr. Gunther then referred to the current plot plan. He said in looking at the house at present there is 8.2 ft. existing at the front, 8.1 ft. at the current rear side and that the side line of the house would continue at the same level and not go further into the side that currently exists. On the north side of the house there is not a 10 ft. setback today, nor could there be a 10 ft. setback. Mr. Brice agreed. Mr. Gunther asked Mr. Carpaneto about there being any safety issues. Mr. Carpaneto said there is no requirement in either the Town or the State. Mr. Carpaneto said there is a State code requirement. This will exceed the State Code requirement of 5 ft. between structures. Mr. Gunther asked if it is known approximately how many feet there are between the buildings. Mr. Carpaneto said in looking at the tax map, it is about 8 ft. at 197 Murray Avenue and 8 ft. at 201 Murray Avenue. He would rough guess to say at least 15 ft. Mr. Carpaneto said that 197 Murray Avenue appears to be closer to the lot line on that side of the property. Mr. Gunther asked if there were any other questions from the public. Robin Sinogatti, of 201 Murray Avenue, addressed the Board. Ms. Sinogatti said the piece of the Walter house now, 8 ft. from the border, is a very small part of that house, a one-story sun room. The amount of the house now coming over, is a much more substantial one. Ms. Sinogatti submitted seven pictures to the Board for their review, marked exhibit#1. Mr. Winick asked Ms. Sinogatti for an explanation of the pictures. Ms. Sinogatti said picture#1 is taken from the second story of her home looking out the bathroom window. She said one can look down at her deck or over to the neighbor. She is just trying to show what the space currently looks like. Zoning Board July 21, 1999 Page 7 Mr. Wexler asked whose tree is penetrating the deck. Ms. Sinogatti said it is her neighbor's deck and that is the tree that will be removed. She said the other pictures submitted at the previous meeting really show the tree. Mr. Wexler said that deck will be gone. Ms. Sinogatti said yes. What is now a deck, an open space, will become a home. Mr. Wexler said the house is 8 ft. from the property line. Requirements by zoning is 10 ft. The 10 ft., 2 ft. over, would not have much of an impact difference than what is there now. It would be 2 ft. over, any shape and would probably have more negative impact. Ms. Sinogatti said that picture show it as well as any. Picture #2 shows how it already doesn't come up to 8 ft. All of that will become house. Mr. Wexler asked if there was a survey that shows the deck. Mr. Brice said it is on the original plot plan. A discussion ensued regarding the size and position of the deck. Mr. Brice said the deck is deeper than the house is setback. A discussion ensued regarding the current location of the house and what is being taken down. Mr. Wexler said the survey presented is very misleading, and asked what portion of the house is being removed. • Mr. Brice said they are taking off the one-story piece. The red "X" on the survey represents a piece of slab that is being taken out. The garage underneath is longer than the one-story piece above it. Starting from that point it is 22 ft. back. Mr. Winick said it was established in the last session that the back yard is 90 ft. deep from the edge of the house. He asked if Mr. Brice considered building back instead of using an encroachment into the 10 ft. side yard. He asled what Mr. Brice's conclusion was about whether or not that was feasible and why. Mr. Brice said it is a very narrow lot, only 50 ft. wide. That is the reason there is a hardship on the lot • with the 10 ft. setback. To bring the rooms back another 2 ft. would make the rooms, already fairly narrow by many standards, not useful. It gets even worse on the second floor. To get an equivalent arrangement of rooms and move it over, the addition would have to be made much longer. That would be more intrusive to the neighbors than keeping it as compact as one can at that dimension. Mr. Brice said he cannot explain all of the possibilities that one might have in designing a house, but the width is needed not the depth. It is more compact with the width. Mr. Winick said he is trying to understand the concept of not making it like that. He understands Mr. Brice's conclusion, but is trying to understand why Mr. Brice decided the other is undesirable. Bill Walters, the homeowner, addressed the Board. He said they spent almost 11/2 years working with Mr. Brice on this and spent approximately 11/2 hours in front of the Board at the last meeting. Mr. Walters said they like the community, want to stay in the house, and like the back yard that they have. It is a small house, but a nice piece of property. He thinks the neighbors feel the same way about their property. The last thing they want to do is build a big house and lose the property. They tried to take what they considered to be dead space, and if it weren't for the tree as discussed last time, it would not be the big issue that it has turned out to be. They have taken the space on the side of the house, built it up and still Zoning Board July 21, 1999 Page 8 maintained the back of the house that preserves all of the view and all of the things that both of the neighbors wanted. They could have gone straight out back, but that would have ruined the piece of property in the back. Mr. Winick asked, in looking at the plot plan, what the width of an addition would be in the back of the house if Mr. Brice did not encroach on the 10 ft. side yard. Mr. Brice said one has to tie into the existing house. It would presumably be a 30 ft. maximum width. Mr. Winick again referred to the plot plan, and asked if there was an existing house above 197 Murray Avenue. Mr. Brice said yes. Mr. Winick asked how far into the back yard does Mr. Brice have to go to get the equivalent square footage. Mr. Brice said he assumes one would have to go 25 ft. from the existing house. It has.to tie into rooms that exist. Mr. Winick asked if that is feasible. Mr. Brice said on the second floor it is difficult,because of the location of the rooms. The second floor has two bedrooms in the front. He is attempting to put a master bedroom, master bath, closets, etc. In order to create that, he has added above that space. If it were added in the back, it would be a very difficult getting to it without going through existing spaces Mr. Brice is intending to leave. That is part of the difficulty. The rooms would have to be arrange in such a way that you would have to go through one room to get to another, because of the length of it. Mr. Wexler asked if that is permitted in the Fire Code, going from one room through another room to get to another room. After some discussion, Mr. Carpaneto said there must be two ways of egress from a bedroom. In a one- family dwelling it would possibly be allowed. Mr. Sinogatti said as stated at the last meeting, it is a narrow lot. A two-story structure, will have a dramatic effect. The neighbor said it is dead space, but it is significant space. Mr. Brice submitted another letter from a neighbor at 185 Murray Avenue, in support of the application. Mr. Gunther said,with reference to the plot plan, there was some discussion about plantings being installed on the property. There was also a great deal of consternation on the part of the neighbors to the north with regard to view that will be lost. He asked if there is sufficient space where the addition is being added to in install tall foliage that would block the house from the neighbors. Mr. Brice said at 8 ft. there are a number of plants that can be installed. Mr. Gunther said that the pictures that were just presented were pictures standing or sitting on the deck showing Arborvitae. Mr. Brice said that is on the neighbor's property. Mr. Wexler said if that span of Arborvitae which is there now is on the neighbor's property, even though • it is 8 ft., there is a reasonable amount space. The addition is being built, but the activity is being removed. They might be building an addition on that side of the house, but they are removing an activity srld Zoning Board July 21, 1999 © Page 9 • from there which is your deck which has a far greater intrusion upon the privacy than a wall with a few windows in it that are not going to be windows that you can see out of. There are tradeoffs. If the addition was built on the back, it would have an enormous intrusion into a common open space. Looking at the site plan, it is quite lovely. These are very deep lots on both sides. From the rear of your house to the rear face of the house across the way, there is lovely open space. Mr. Wexler thinks Mr. Sinogatti would be more upset with an addition as proposed by Mr. Winick, because then the activity would be on Mr. Sinogatti's side of the property. The proposal is more of a compact type house. Mr. Gunther asked if there were any other questions from the public on this application. There being none, Mr. Gunther read the letter submitted from the residents at 185 Murray Avenue, marked exhibit#2, into the record. After further discussion regarding the type and caliper of tree, on motion of Mr. Wexler, seconded by Mr. Gunther, the following resolution was proposed and ADOPTED unanimously, 4-0. RESOLVED, that this is a Type II action having no significant impact on the environment pursuant to 6 NYCRR §617 et seq. Accordingly, no further action under SEQRA is required. On motion of Mr. Winick, seconded by Mr. Gunther, the following resolution was ADOPTED: WHEREAS, Deborah and Bill Walters requesting have submitted an application to the Building Inspector, together with plans to construct a 21/2 story rear addition. The 21/2 story rear addition as proposed has a side yard of 6.4 ft. where 10.0 ft. is required pursuant to Section 240-38B(2)(a); a total side yard of 14.5 ft. where 20.0 ft. is required pursuant to Section 240-38B(2)(b); and further, the rear addition increase the extent by which the building is nonconforming pursuant to Section 240-69 for a residence in an R-7.5 Zone District on the premises located at 197 Murray Avenue and known on the Tax Assessment Map of the Town of Mamaroneck as Block 113 Lot 318; and WHEREAS, the Building Inspector has declined to issue such permit on the grounds that the plans submitted failed to comply with the Town of Mamaroneck Zoning Ordinance with particular reference to Section 240-38B(2)(a), Section 240-38B(2)(b), Section 240-69; and WHEREAS, Deborah and Bill Walters submitted an application for a variance to this Board for the reasons set forth in such application; and WHEREAS, this Board has examined the plans, inspected the site, reviewed the application and has heard all persons interested in this application after publication of a notice thereof and a hearing thereon; and WHEREAS, the Zoning Board of the Town of Mamaroneck makes the following findings as required by New York State Town Law §267-b: 1. The Board finds that the benefit to the applicant from the granting of the variance outweighs any detriment to the health, safety and welfare of the neighborhood or community. In reaching this conclusion, the Board considered the following factors: A. There will not be an undesirable change produced in the character of the neighborhood, or a detriment to the nearby properties created. The Board is well aware of the neighbors' concerns. However, on balance, the removal of the deck will increase the enjoyment of the neighboring property by removing the far more intrusive deck use and replacing it with indoor living space, which will outweigh any detriment of the proposed change. The massing of the subject property on the side where the concerned neighbors live is vastly reduced compared to the original gable that was proposed. With regard to the concerns Zoning Board July 21, 1999 Page 10 expressed by the neighbor, it is concluded, after an inspection of the property and the plans, that there will, in fact, be no real detriment created to the adjoining property; B. The applicants cannot achieve their goal by a reasonable alternative which doesn't involve the necessity of an area variance. The addition could be constructed as-of-right in the rear yard. However, the applicant's architect, Mr. Brice, has demonstrated to the Board that it would require a total reconfiguration of the second story of the house as well as extensive modification of the first floor. In addition, with the constraint of the narrowness of the 50 ft. lot with the two 10 ft. side yards, the deep addition in the back yard would be a detriment to the community equal to or greater than the variance requested. The way the block is configured, there is deep open space in the rear of the lots that is common to the entire block. To require the square footage, which is as-of- right, to be constructed in the back yard (the non-variance alternative), would be a detriment to all of the nearby properties by simply crowding what is now an open space and would have a greater impact on the neighboring properties than what is proposed. From the deck of the neighboring property, there would be no where to hide from the addition if it extended into the back yard. C. The variance is not substantial because, although it is 2 ft. out of the 10 ft. yard, it does not increase the encroachment beyond what presently exists. D. There will be not an adverse impact on the physical or environmental in the neighborhood or district. E. There is no self-created difficulty. The houses were all built this way in another time when people lived in smaller houses. Many individuals in town live on these size lots. This is simply a function of changing times. 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. An appropriate tree, 4 in. caliper in size, shall be installed on the side of the property adjoining 201 Murray Avenue to screen the addition. 2. This variance authorizes the construction as shown on the plans presented and no other. 3. The applicant shall obtain a building permit within six (6) months of the filing of this Resolution. Zoning Board July 21, 1999 Page 11 4. 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. 5. Construction shall be in substantial compliance with the plans submitted in connection with this application. This decision shall be filed with the Town Clerk as provided in Section 267-a(2) of the Town Law. Mr. Gunther informed the applicant to see the Building Department during regular business hours for a permit. The Secretary read the next application as follows: APPLICATION NO. 3 - CASE 2359 Application of John Hamblet requesting a variance to install a central air conditioning unit. The air conditioning condensing unit as proposed has a side yard setback of 2.0 ft. where 10.0 ft. is required pursuant to Section 240-38B(2)(a); and further, the condensing unit increases the extent by which the building is nonconforming pursuant to Section 240-69 for a residence in an R-7.5 Zone District on the premises located at 72 North Chatsworth Avenue and known on the Tax Assessment Map of the Town of Mamaroneck as Block 117 Lot 221. John Hamblet, of 72 North Chatsworth Avenue, addressed the Board. Mr. Hamblet said prior to discussing the specifics of the case, he would like to make a brief general statement. Mr. Hamblet said as it is known, the Town of Mamaroneck has a real mess on its hands. Approximately 1,000 to 3,000 homes with simple air conditioning units are now in violation of Town building code and many of those will have to appeal. If the law is not changed, he guesses the Board will be in session between three to six years non-stop, which means nothing but air conditioning cases. There are already three other cases pending. Mr. Hamblet said at the last week's Town Board meeting, the Town Supervisor made it clear that some change to the law will probably be made. It was also clear that the change will happen over months and not weeks. It will be a little bit too late for Mr. Hamblet's case. He also learned last week, and didn't realize it, that legal representation is not required to appear before the Board. In fact, not only is not required, it is not really desirable. Citizens should be able to talk with their town agencies at no cost. So, today Mr. Hamblet is present without representation. Mr. Wexler ask Mr. Hamblet who informed him that legal representation was not desirable. Mr. Hamblet said Councilwoman O'Keeffe. As the test case for the Town, Mr. Hamblet said he is hoping all will learn from this experience. He believes this change in interpretation and its impact could have been better communicated to the citizens of the Town. He also believes the enforcement of this regulation is a little over zealous. He is, however, hopeful that his case can be settled tonight. At this point in tme, Mr. Hamblet discussed his specific situation. He is recommending that one air conditioner be moved and the other remain. He cannot get a building permit to do anything, until both issues are resolved. As the Board may be aware, Mr. Hamblet has two units at the side of his house. The one closest to the front, cools the two upstairs floors. The other unit cools the first floor. The unit that cools the upstairs where Mr. &Mrs. Hamblet have their offices and the bedrooms are on the second floor. The unit runs most of the day to keep the offices cool and quite a bit at night. He does not have an exact percentage, but would say it accounts for approximately 90% of the sound coming from those two units. Zoning Board July 21, 1999 Page 12 The other unit is actually rarely turned on. The downstairs stays cool really from two things, the cool coming down the stairs and there is much better circulation downstairs. He said also that hot air rises. Mr. Wexler said there is also less heat gain. Mr. Hamblet said since June 1st, the downstairs air conditioner was turned on about three times. Mr. Hamblet said his proposal is to take the unit that cools the upstairs closest to the front of the house and the one most visible, the one closest to his bedrooms, and move it around the back into the raised flower bed with concrete edging, probably about 15 ft. from the property line, well within the setback. He can also plant bushes on either side of the air conditioner, but it is beyond the setback and not really an issue. Mr. Hamblet said the first and main air conditioner he is going to move, is the second one that is the problem; number 1, cools the upstairs and front of the house, number 2 cools the downstairs,for which he is seeking a variance. The easiest solution would be to just move it. Mr. Hamblet wants help and guidance from the Board. He believes it should stay there, but he can move it after further investigation. If he does move it, he cannot guarantee that that air conditioner will be quiet. He tried to do as much research on sound as he could. It appears the reflection of sound makes a considerable difference in sound level. That second air conditioner, is in a furnished room. The ground is softer, it has a depth of 7 ft. of bushes which are about 9 ft. high and has a tree that goes up about two stories, approximately 16 ft. to 20 ft. high on one side. On the other side, there is another that goes up even higher, approximately 15 ft., to the top of the ground floor. Currently it is surrounded and more bushes can be installed on either side of the air condition. If Mr. Hamblet moves it around, it will only be approximately 9 ft. from the property line than it is now, because there is only so much room in the flower bed. If Mr. Hamblet puts the second air conditioner in the flower bed, there won't be any room for bushes or anything to break the sound. Most importantly it will increase the number of hard surfaces. Currently there is one hard surface, that being the wall of the house. If is brought around the back, there will be three hard surfaces. The surface of the wall behind it, the surface of the other air conditioner and the surface of the concrete sidewalk or path in front of it and it will not have any trees. Mr. Hamblet said the place where the second air conditioner is, is quieter than moving it around. Mr. Hamblet said the following was raised when the Board was considering whether or not air conditioners were a structure. He did do some research on electro magnetic fields(EMF). Mr. Hamblet said he is not an expert, and apparently there is no research proving the EMF cause illness. However, if there was research and it shows that EMF did cause illness, the central air conditioning unit would be safe. EMF fields are measured in miligoss(?)mg and EMF's dissipate by distance. According to the National Institute of Health, the miligoss rate of an air conditioner at 4 ft. is zero. There are 7 ft. of bushes, so there would be no exposure to EMF. However, even if the bush was removed, it appears the danger is apparently minuscule, compared to the EMF dangers of a television set and a mobile telephone. One of the most dangerous things in a house is a round electric clock, because it sits so close to an individual, about 2 ft. away, and exposes one to about ten times the amount of miligoss as the air conditioner would. Mr. Hamblet said the only other concern his neighbor expressed, was concern that the central air conditioning units were going to heat up the side yard. If number 1 is moved that cools the upstairs, the other air conditioner in question cools the five rooms downstairs, which is about 8,000 cubic feet. Mr. Hamblet said if it is assumed that heat does not rise and the area between the two homes is a cube about 150,000 cubic feet, there is a ratio of 22 to 1, which means on a 95 degree day if heat does not rise and there is no wind it is possible the temperature of the side yard would raise about four one-hundredths of a degree, less than 4% of one degree Fahrenheit. Mr. Hamblet said he does not feel the sound issue or heating up the side yard is an issue. Mr. Hamblet said he is turning it over to the Board. If the Board wants to stick to the letter of the law, then the Board denies the variance and Mr. Hamblet moves the air conditioning unit around the corner. If the Board wants to stick to intent, keeping the air conditioner unit where it is, is the best. Mr. Gunther asked if there were any further questions from Board members. Zoning Board July 21, 1999 Page 13 Mr. Wexler asked if the compressors were the same size and asked how many tons they are. Mr. Hamblet said the compressors are the same size, but did not know how many tons. After further discussion, Mr. Carpaneto said they are probably 4 ton. Mr. Hamblet said the air conditioners purchased were two models levels up that have a higher field rating than what was required, because it was thought they would be quieter and more efficient. Mr. Winick asked if Mr. Hamblet has determined if both air conditioner units were moved to the back of the house would there be adequate clearance. Mr. Hamblet said he would not have the clearance that the manufacturer recommends. A discussion ensued regarding the recommended clearance by the manufacturer and the placement of the units on the property. Mr. Winick said then upon advice from the installer there is an adequate installation Mr. Hamblet can do that would put both of them side by side in the flower bed. Mr. Hamblet said that is correct. He can physically move both units to the flower bed. Mr. Gunther asked if there were any questions from the public on this application. William Maker, Jr., the attorney representing the next door neighbors, Mr. & Mrs. Herbst, addressed the Board. He said most of the presentation was done by the Herbsts who have lived with this situation for • the last year or so. Mr. Maker said just as a reminder, they recognize the fact that one of the measuring sticks is how a particular application creates a detriment to nearby properties or creates an undesirable change in the neighborhood helps to speak about the way their quality of life has been affected, particularly by the noise generated by these particular units. Mr. Maker said the second criterion is whether there is some other feasible method. By questions and answers elicited by Mr. Winick, it appears that there is a feasible alternative which is both of these units can be moved to the back. One is proposed to be moved, and there doesn't appear to be any reason why the other cannot also be moved whether to the back or the other side of the house or possibly even to the front, assuming the setbacks are met for that zone. Mr. Maker said if the setbacks cannot be met, then a variance for the dimensions needed would be appropriate. Mr. Maker then addressed the third factor, how substantial the variance is. This is a request for a 2 ft. setback where 10 ft. is required, which is 80%. Mr. Maker said that the next item is whether there is an effect on the environment. The noise issue is the one that has an environmental impact. Mr. Maker said the last issue of self-created hardship perhaps doesn't really pertain in this particular circumstance, but the Board will have to consider it. Mr. Maker said after this summary, if no one else has any particular question of Mr. Maker, he will have Mr. & Mrs. Herbst address the Board. Robert Herbst, of 76 North Chatsworth Avenue, addressed the Board. Mr. Herbst said as Mr. Maker set out the test of the balance between the benefit to the applicant and the detriment to the neighborhood, they find the existence of these units to be very detrimental and prevent the use of their side,wake them in their bedroom, force them to keep their windows closed on summer nights,create elevated noise levels in their house of an electrical and mechanical nature, and they also throw out excess heat and particulate matter. Zoning Board July 21, 1999 Page 14 Mr. Herbst would like to orient the Board to the situation, and submitted, as exhibit#1, a copy of the survey of Mr. Herbsts' house, 76 North Chatsworth. Mr. Herbst said his back yard is essentially the continuation of a gravel driveway. The real living space is the side yard, which is contiguous to the Hamblet's property. Mr. Herbst introduced pictures of the units in question, marked exhibit#2. Picture#1 shows the rear unit, unit#2, which Mr. Hamblet plans to keep in place under the variance application, in relation to the metal bench where Mr. Herbsts' wife sits. Photograph #2 shows the scale by use of his child's hockey stick, a little less than 3 ft. in length. Photograph #3 shows another view of unit#2, showing the proximity of the unit to the existing wall, 7 in. to 9 in., and the proximity of shrubbery which is virtually touching the unit. Mr. Herbst said unit #2, in the proximity of the yard and living space, shows the closeness which exists to the current wall and the current shrubbery. Mr. Herbst said he would like to describe to the Board the detriment they feel both quantitatively and qualitatively. The units are each rated by the manufacturer at 82 decibels. Mr. Hamblet interrupted the presentation, at which time Mr. Gunther asked Mr. Hamblet to make notes and he will have an opportunity to comment after Mr. Herbsts' presentation. Mr. Herbst continued his presentation stating when you put the 82 decibels in prospective, at 85 decibels OSHA, the Occupational Safety and Health Administration, requires training, medical monitoring and protection for workplace exposure and gave an example using channel four, News Four helicopter. He then submitted an article from the May 24, 1999 Journal News, the local newspaper, which describes the noise levels on the international space station, and highlighted the part that says "72 decibels is the equivalent to a busy highway or a turned-up TV 10 feet away, the space shuttle limit is 68 decibels" and the article continues that if the decibel level on the space station is not brought down to 60 decibels, then • the crew will be required to wear earplugs. Mr. Herbst said in regard to the units in question, an environmental engineer was called in to measure the noise level of these units as well as their environmental load, submitted that report, marked exhibit #4, and commented on pages 2 and 3 of that report regarding the direct reading of the units. Mr. Herbst then mentioned the temperature measurement of the rear unit on that being 92.8 degrees. A measurement about the same time of the front steps was 83.8 degrees. The measured difference between unit #2 and the front steps was 9 degrees, a significant amount, damages plants as shown in one of the pictures showing a 75 year old Azalea not thriving which is in great proximity to these units. In addition, as the environmental exhibit states, an air conditioning unit will throw off particulate matter especially when it is in a natural setting and mounted in and around dirt and bushes. Mr. Herbst said qualitatively, their quality of life has been directly impacted by this. When those units are on, they can't sit on the bench in the picture. You can't stand in the yard and talk to someone. It is like a busy highway. They are forced to close their bedroom windows at night, even in the summer. As a part of the prior proceeding, a list was made of times when these units were found to be particularly disturbing. Mr. Herbst updated that list to included times this summer, to correct Mr. Hamblet when stating that unit#2 was only turned on three times where he has it ten times and didn't list every day they might have been on only times when it was particularly disturbing. Mr. Herbst submitted the list, marked exhibit#5, and proceeded to go over certain times wakened in the early morning hours and the fact that the units were working and the temperature was only 67 degrees. Mr. Herbst then went over times the units could be heard in the boys room, even at 10:00 p.m. Perhaps the worst example is on Sunday, June 27, 1999 Mr. Herbst tried to weed the lawn 7:00 p.m., was away from unit#1 which kicked on and off for quite a while, gave the decibel levels, and said after about an hour had to give up because he was exhausted and battered from the noise. It has damaged their lives, has damaged their property value and Mr. Hamblet has admitted there are alternatives and expanded on that issue. Mr. Herbst said if the Board looks at the demonstrated detriment to Mr. & Mrs. Herbst and balance all the factors presented and the impact on the Herbsts, he respectfully urges that the variance not be granted. Zoning Board July 21, 1999 Page 15 Mr. Gunther asked if there were any other questions from Board members. There being none, Mr. Gunther asked if there were any other questions from the public. There being none, he asked Mr. Hamblet is he had anything else to say. Mr. Hamblet said the decibel rating is incorrect. A discussion ensued regarding that statement. Mr. Hamblet said from a factual standpoint, they have every right to sit on the metal bench, but the metal bench was put out after the air conditioning was installed,possibly put there to make a point. The decibel rating was incorrect. The new air conditioner is CFC free, as opposed to others. The property values, which Mr. Hamblet checked, have done very well in the last year and one-half. Mr. Herbst will not attempt to get into a discussion of measuring sound. He tried to read up on it as much as possible, and there is quite a bit he doesn't understand. Decibel ratings are apparently relative to what one can hear and the ambient sound that is around. Mr. Hamblet said if they are too loud and they understand that by moving them around it may not be the quietest solution, but he will move them. Mr. Gunther asked if there were any other questions. There being none, on motion of Mr. Gunther, seconded by Mr. Winick, the following resolution was proposed and ADOPTED unanimously, 4-0. RESOLVED, that this is a Type II action having no significant impact on the environment pursuant to 6 NYCRR §617 et seq. Accordingly, no further action under SEQRA is required. On motion of Mr. Paul, seconded by Mr. Simon, the following resolution was DENIED unanimously,4-0: WHEREAS, John Hamblet has submitted an application to the Building Inspector, together with plans to install a central air conditioning unit. The air conditioning condensing unit as proposed has a side yard setback of 2.0 ft. where 10.0 ft. is required pursuant to Section 240-38B(2)(a); and further, the condensing unit increases the extent by which the building is nonconforming pursuant to Section 240-69 for a residence in an R-7.5 Zone District on the premises located at 72 North Chatsworth Avenue and known on the Tax Assessment Map of the Town of Mamaroneck as Block 117, Lot 221; and WHEREAS, the Building Inspector has declined to issue such permit on the grounds that the plans submitted failed to comply with the Town of Mamaroneck Zoning Ordinance with particular reference to Section 240-38B(2)(a), Section 240-69; and WHEREAS, John Hamblet 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 is outweighed by the detriment to the health, safety and welfare of the neighborhood or community that would be caused by the variance. In reaching this conclusion, the Board considered the following factors: A. The neighbors have made a compelling case that the variance would result in significant detriment to their property. Specifically, the Herbsts, who live at 76 North Chatsworth Avenue, submitted a report from a noise expert associated Zoning Board July 21, 1999 Page 16 with Green Circle Solutions, dated September 6, 1998, indicating that noise levels associated with the compressor were measured as high as 89 decibels at times. Given the distances between the subject lot and the neighbors at 76 North Chatsworth Avenue, that is a significant sound level. It is clear, from the log submitted and the oral testimony of Mr. Herbst, that the neighbors are experiencing a detriment. The evidence produced shows that,objectively,there is a detriment to their property that is created by the proximity of the compressor to the neighbor's home. B. As the applicant candidly acknowledged, there is an alternative that does not involve an area variance. The applicant can move the air conditioning condenser unit outside the 10 ft. setback into his back yard, which would be an as-of-right location. C. The variance is substantial, encompassing 80% of the setback area. D. The adverse impact on the neighborhood or district is essentially the same as discussed in factor "A" above. E. Although the applicant's difficulty was self-created, this is not determinative. The units were not located with an intention of harming the neighbor. NOW, THEREFORE, BE IT RESOLVED, that the subject application be and the same is DENIED. This decision shall be filed with the Town Clerk as provided in Section 267-a(2) of the Town Law. Mr. Winick said he understands that the Town Board is considering what kind of an Ordinance they might pass regarding this matter. The observation Mr. Winick is making is that once the unit is moved 10 ft. away from the property line, the Board has no jurisdiction over it. Both parties should be aware that this may not solve the real problem. There may still be noises, Mr. Hamblet will be in compliance and hopes they can work it out if it continues to be a problem. The Board has no jurisdiction over sound levels as such, if it doesn't come before the Board within a zoning issue. Mr. Gunther asked if there were any other questions from Board members. There were none. Mr. Hamblet said this is addressed to the Town Board, as he doesn't believe the interpretation of sound and gave the same examples at the Town Board meeting as he did this evening. After some discussion, Mr. Carpaneto said it can be put within 10 ft. of the property line. Mr. Hamblet said the Herbsts can put air conditioners closer to his house than Mr. Hamblet ever could to theirs. That is the point he wanted to make to the Town Board, but it is not a way of managing sound. Mr. Winick said that the Town Board can address this issue. Mr. Wexler said generally when people install air conditioning in a house, they take the most expedient, out-of-sight way of installing it. In many instances they install it in the side yard that is less impact visually and on sound, too, on the house it is servicing than the adjacent house. Once that it is determined to be a structure, it gives some guidance that that piece of equipment will not be put in that minimal side yard. After further discussion, Ms. Gallent said it is the interpretation of the law. Zoning Board July 21, 1999 Page 17 NEXT MEETING The next meeting of this Board will be held on August 18, 1999. APPROVAL OF MINUTES Mr. Gunther informed those present that the Minutes of the June 23, 1999 Zoning Board meeting will be voted on at the next meeting. ADJOURNMENT On a motion made by Mr. Gunther, seconded by Mr. Simon, the meeting was adjourned at 10:00 p.m. 721 1 (� I Marguerite imma, Recording Secretary ti • • . 0