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1996_02_28 Zoning Board of Appeals Minutes
MINUTES OF THE REGULAR MEETING OF THE ZONING BOARD OF THE TOWN OF MAMARONECK FEBRUARY 28, 1996, IN THE COURT ROOM, TOWN CENTER 740 WEST BOSTON POST ROAD MAMARONECK, NEW YORK Present: Thomas E. Gunther, Chairman Patrick B. Kelleher Nina Recio J. Rene Simon Arthur Wexler �„�.;al ir% Also Present: John Kirkpatrick, Counsel Air'/ 4 William E. Jakubowski, Building Inspector Li RECEIVED William J. Gerety, Assistant Building Inspector s NAY 23 l� ii�~ Melissa Barbosa, Public Stenographer ,,,. Carbone and Associates, Ltd. '' 111 N. Central Park Avenue '�„46,+ Hartsdale, NY 10530 10: Marguerite Roma, Recording Secretary CALL TO ORDER The meeting was called to order by Chairman Gunther at 8:50 p.m. The chairman announced that Application No. 1 - Case 2200 - Weisfeld and Application No. 4- Case 2214- Miller have been adjourned to the March meeting per the applicant's request. The secretary read the application as follows: APPLICATION NO. 2 - CASE 2205 (rescheduled from January 10, 1996) Application of John Cranford for The Salvation Army requesting a variance to construct a rear deck with a rear yard of 17.0 ft. where 25.0 ft. is required pursuant to Section 89-32B(3) and the deck would increase the extent by which the building is nonconforming pursuant to Section 89-57 for a residence in an R-15 Zone District on the premises located at 820 Fenimore Road and known on the Tax Assessment Map of the Town of Mamaroneck as Block 206 Lot 187. Larry Gordon, the architect for the applicant, and John Gordon, the applicant appeared representing The Salvation Army. Mr. Gunther asked the applicant to identify himself and enlighten the Board regarding the case. Mr. Gordon said the applicant would like to take down the existing stairs and small deck and build a minimal deck in its place. The deck that exists is structural unsound and must be removed. The applicant is proposing a minimal in order for the applicant to utilize the back yard. The kitchen area is almost on the second floor not the first floor, because of the contour of the site slopping up approximately 41/2 ft and presented photographs to the Board for their perusal. Mr. Wexler asked if the retaining wall was on the property line, and Mr. Gordon said it was on the property line. Mr. Recio said is was her recollection that the dwelling was set farther forward. Zoning Board February 28, 1996 Page 2 Mr. Cranford said the house sits on an elevation of 50 ft. -75 ft. up, and the front of the house is probably 25 ft. behind that. Mr. Gunther passed the zoning map around to clarify Ms. Recio's question. Mr. Gunther asked if there were any other questions from the Board members or comments from the public. There being none, after review, on motion of Mr. Thomas Gunther, seconded by Ms. Recio, the following resolution was proposed and adopted unanimously, 5-0. RESOLVED, that the Zoning Board of Appeals is the Lead Agency and solely responsible for determining whether the proposed action may have a significant impact on the environment; and it is FURTHER RESOLVED, that this is a Type II action having no significant impact on the environment as determined by New York State or corresponding local law, therefore, requiring no further action under SEQRA. On motion of Mr. Simon, seconded by Ms. Recio, the following resolution was ADOPTED: WHEREAS, John Cranford, for The Salvation Army has submitted an application to the Building Inspector, together with plans requesting a variance to construct a rear deck with a rear yard of 17.0 ft. where 25.0 ft. is required pursuant to Section 89-32B(3)and the deck would increase the extent by which the building is nonconforming pursuant to Section 89-57 for a residence in an R-15 Zone District on the premises located at 820 Fenimore Road and known on the Tax Assessment Map of the Town of Mamaroneck as Block 206 Lot 187; 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 89-32B(3) and Section 89-57 ; and WHEREAS, John Cranford, for The Salvation Army 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 Board finds that the benefit to the applicant and the special circumstances and/or conditions applying to the land far outweighs any detriment to the health, safety and welfare of the neighborhood if the variance sought is granted and also finds as follows: 1. The rear yard is 17 ft. where 25 ft. is required. 2. There is an existing retaining wall quite a distance away. 3. The slopping topography of the rear yard area is well screened in. 4. The area is a substandard size lot having a depth of 90 ft. instead of the required minimum for an R-15 Zone District making it a burden to maintain the required setback in the rear yard with the deck attached to house. 5. The granting of this variance is in harmony with the general purposes and intent of this Ordinance and will not be injurious to the neighborhood or otherwise detrimental to the public welfare. Zoning Board February 28, 1996 Page 3 6. The variance is the minimum 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. 7. 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. The applicant shall obtain a building permit within (6) months of the filing of this Resolution; 2. 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; 3. This decision shall be filed with the Town Clerk as provided in Section 267-a(2) of the Town Law. The secretary read the application as follows: APPLICATION NO. 3 - CASE 2213 (adjourned from January 24, 1996) Appeal to the Town of Mamaroneck Zoning Board of Appeals by Robert Motzkin and Diane Blum to reverse the determination of the Building Inspector adjourned from the January 24, 1996 meeting. The matter was discussed in further detail, and the court stenographer's transcript is attached and made a part of the record. After review, on motion of Mr. Gunther, seconded by Mr. Wexler, the following resolution was proposed and adopted 4-1, Mr. Simone abstained. RESOLVED, that the Zoning Board of Appeals is the Lead Agency and solely responsible for determining whether the proposed action may have a significant impact on the environment; and it is FURTHER RESOLVED, that this is a Type II action having no significant impact on the environment as determined by New York State or corresponding local law, therefore, requiring no further action under SEQRA. On motion of Mr. Wexler, seconded by Mr. Kelleher, the following resolution was ADOPTED: WHEREAS, Robert Motzkin and Diane Blum have submitted an application together with plans to reverse the determination of the Building Inspector for Permit No. 13228 issued on November 17, 1995 for an addition to the residence of Michele and Paul Hoffmann for a residence in an R-15 Zone District on the premises located at 69 Carleon Avenue and known on the Tax Assessment Map of the Town of Mamaroneck as Block 404 Lot 613, as amended on the grounds that the premises are not in compliance and need a side yard variance pursuant to Sections 89-32.B(2)(a) and (b); and a front yard variance in compliance with Section 89-32.B(1). WHEREAS, Robert Motzkin and Diane Blum have presented at length their reasons for such application; and Michele and Paul Hoffmann have likewise presented at length their reasons for opposing such application; and Zoning Board February 28, 1996 Page 4 WHEREAS, this Board has examined the plans and photographs, 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 Board finds as follows: 1. A variance was issued in 1979 for construction of a modification to the 2nd floor and roof structure with a side lot line of 5.5 ft. in lieu of the required side yard setback of a minimum of 10 ft. and a total side yard of 12 ft. in lieu of 30 ft. required. 2. The construction then built was not nonconforming,because the 1979 variance permitted it. Any future change to such construction would thus not constitute a change to a nonconforming use. 3. The variance granted in 1979 states that the variance is granted on the condition that construction proceed in strict conformance with plans filed with the 1979 application. Thus, any future change to the construction then built would have to comply with Town Codes or be granted a variance. 4. As pointed out by the building inspector a new survey prepared after his original decision in this matter indicates that the building as constructed is within the front yard setback and a variance is therefore required for the front yard. NOW, THEREFORE, BE IT RESOLVED, that the subject application be and the same is granted, meaning that the determination of the Building Inspector is reversed and the subject premises are not in conformity with Sections 89-32B(2)(a), 89-32B(2)(b), and 89-32B(1), and directs that this decision shall be filed with the Town Clerk as provided in Section 267-a(2) of the Town Law. The secretary read the application as follows: APPLICATION NO. 5 - CASE 2215 Application of Michele and Paul Hoffmann requesting a variance to replace a flat mansarded roof with a gable roof which has been contested in a separate application; should that requested interpretation be granted, the applicant will be required to seek a variance for all or part of the Zoning Code Sections listed in Case#2213 for a residence in an R-15 Zone District on the premises located at 69 Carleon Avenue and known on the Tax Assessment Map of the Town of Mamaroneck as Block 404 Lot 613. The court stenographer's Minutes are attached and made a part of the record. NEXT MEETING The next meeting of this Board will be held on Thursday, March 28, 1996. ADJOURNMENT On a motion duly made and seconded, the meeting was adjourned at 12:05 a.m. 22/6( 1 -taC ,M727C4_ Margue a Roma, Recording Secretary STATE OF NEW YORK COUNTY OF WESTCHESTER TOWN OF MAMARONECK x REGULAR MEETING OF THE ZONING BOARD OF APPEALS x 740 West Boston Post Road Mamaroneck , New York February 28 , 1996 7 : 50 p . m . PRESENT : THOMAS E . GUNTHER - CHAIRMAN PATRICK J . KELLEHER - BOARD MEMBER NINA RECIO - BOARD MEMBER J . RENE SIMON - BOARD MEMBER ARTHUR WEXLER - BOARD MEMBER ALSO PRESENT : JOHN KIRKPATRICK - COUNSEL WILLIAM E . JAKUBOWSKI- BUILDING INSPECTOR WILLIAM J . GERETY- ASSISTANT BUILDING INSPECTOR MARGUERITE ROMA - RECORDING SECRETARY CARBONE & ASSOCIATES , LTD . Melissa Barbosa , Reporter 111 North Central Park Avenue Hartsdale , N . Y . 10530 ( 914 ) 684 -0201 4 .. Ear , MAR *4 war— .4* ikli 0 171f7 Proceedings 2 1 MS . ROMA : Appeal to the Town 2 of Mamaroneck Zoning Board of 3 Appeals by Robert Motzkin and Diane 4 Blum to reverse the determination . 5 MR . CHAIRMAN : I don ' t know 6 that you have to read the whole 7 thing . You could just make mention 8 the case is adjourned from the prior 9 meeting . 10 MS . ROMA : It is the same 11 case number 2213 that was adjourned 12 from the January 24 , 1996 meeting 13 THE CHAIRMAN : Thank you . Is 14 the applicant present? 15 MS . SUSSMAN : Yes , the 16 applicants are present and I am the 17 attorney . 18 THE CHAIRMAN : Please 19 identify yourself for the record . 20 MS . SUSSMAN : I am Marianne 21 Sussman from the Law Firm of Marcus , 22 Rippa and Gould LLP representing 23 Robert Motzkin and Diane Blum . 24 THE CHAIRMAN : Your address 25 please . Proceedings 3 1 MS . SUSSMAN : 11 Martine 2 Avenue , White Plains , New York . 3 THE CHAIRMAN : Before you 4 start I will just remind Board 5 members and members of the public 6 that one of the Board members here 7 Mr . Simone is abstaining from 8 hearing this application . He will 9 not be participating . 10 MS . SUSSMAN : This matter was 11 heard last month and carried over 12 and just to summarize briefly it 13 relates to the issuance of the 14 Building Permit by the Building 15 Inspector for an addition of the 16 Hoffmann property . The permit 17 issued in November 1995 . 18 The addition includes among 19 other construction an addition to 20 the building on the side adjacent to 21 the Motzkin/Blum property which 22 increases in height above the second 23 story 17 feet at the peak of the 24 construction and 11 foot peak 25 average . This height running a Proceedings 4 1 distance of 50 feet . This exists 2 above the pre-existing second story 3 and that stands at a 5 1/ 2 foot 4 setback from the Motzkin/Blum 5 property line . The 5 1/ 2 foot 6 setback historically I did submit a 7 letter to the Board which has some 8 details and I don ' t want to repeat 9 all of that but the 5 1/ 2 foot 10 setback had a history dating back to 11 the original construction when it 12 related only to a garage . 13 There was a 1979 variance 14 granted by the Board which provided 15 for expansion to the second story . 16 For the Board ' s convenience I have a 17 copy of the 1979 resolution just for 18 reference purposes . 19 THE CHAIRMAN : Do you have 20 copies for all members? 21 MS . SUSSMAN : Yes , I just 22 wanted to have the Board members to 23 have an opportunity , I know there is 24 a great deal of paper on this 25 application . Proceedings 5 1 You will note from the 2 variance that there was great 3 consideration given to the criteria 4 for issuance of a variance at that 5 time , the existence of practical 6 difficulty , the absence of 7 alternative measures to meet the 8 applicant ' s difficulty , the lack of 9 detrimental impact on the 10 neighborhood and that was considered 11 at length and that was included in 12 the findings in that resolution . 13 However , in this instance 16 14 years later with a substantial 15 addition onto that building at the 5 16 1/ 2 foot setback line , there was no 17 such consideration opportunity 18 offered to the Board or offered to 19 the neighbors of the property as it 20 was determined by the Building 21 Inspector to issue the permit . 22 The definition of a yard in 23 the Zoning Ordinance I think is 24 extremely illuminating on the point 25 of whether this is an additional Proceedings 6 1 intrusion into the setback area and 2 the yard is defined as open space 3 unoccupied and unobstructed from the 4 ground upward so what has happened 5 here is that the open space above 6 the second floor has now been 7 reduced . In fact it has been filled 8 up to the 5 1 / 2 foot line and it 9 does encroach into the setback . The 10 Zoning Ordinance is required setback 11 area thereby there is a violation 12 and the matter should have been 13 considered by this Board for an 14 application for a variance . 15 I do want to point out that 16 this case differs from the Miran 17 case which was recently decided in 18 this Town . In that case there was 19 no building up . It was , although 20 the footprint was changed , there was 21 no additional encroachment into the 22 open area of the yard . By omitting 23 the variance application process the 24 consideration required by State Law 25 for a zoning noncompliance was not Proceedings 7 1 observed and a consideration was 2 denied to the neighbors in the Town . 3 Mr . Motzkin and Ms . Blum have 4 some additional materials to present 5 to you on this appeal tonight and I 6 would like to ask them to come up . 7 THE CHAIRMAN : Before you 8 proceed I want to just ask sort of a 9 procedural question so I know where 10 we are headed , is there going to be 11 new material presented? 12 MS . SUSSMAN : Yes , there is 13 new material . 14 THE CHAIRMAN : With relation 15 to the-- 16 MS . SUSSMAN : In relation to 17 the appeal on the absence of 18 variance . 19 THE CHAIRMAN : Because one of 20 the things that I would that I am 21 planning to ask you to do along the 22 way of this evening since there are 23 so many elements in the Zoning Code 24 that you are citing in the original 25 appeal that I would like to have an Proceedings 8 1 opportunity to review them . I 2 didn ' t count how many there are , 3 89-1 . B , 89-1 . C , 89-1 . D , 89-3 and so 4 on in a very shortened version maybe 5 a minute or so for each and then 6 allow Mr . Null if he wishes to 7 respond to each of them to allow the 8 Board members to have a full 9 opportunity to fully understand all 10 of the elements that you are seeking 11 an interpretation from the Zoning 12 Board . 13 MS . SUSSMAN : That will be 14 fine . I just ask that there be an 15 opportunity to begin with some 16 general remarks . 17 THE CHAIRMAN : That ' s fine . 18 MR . WEXLER : I have something 19 also , can that be broken down into 20 two categories . One which is I am 21 not seeing all of this given the 22 sense of what your applicant is 23 asking the Board to review . There ' s 24 a thing that there might be more 25 procedural as opposed to physical Proceedings 9 1 construction of the building . If 2 that is a distinction between that 3 in these 14 can we isolate those , 4 break them into two segments . 5 MS . SUSSMAN : Well , I think • 6 the contention is that these-- 7 MR . WEXLER : So , I can 8 understand what this is as opposed 9 to being all over the field within 10 the code . 11 MS . SUSSMAN : We can attempt 12 to address them . 13 MR . WEXLER : I will 14 appreciate that if you can clarify 15 that . 16 MR . MOTZKIN : My name is 17 Robert Motzkin , 75 Carleon Avenue . 18 Diane Blum also 75 Carleon Avenue . 19 THE CHAIRMAN : When you speak 20 please be speak slowly and loudly 21 enough so our stenographer can hear 22 you . 23 MR . MOTZKIN : Just a question 24 about how much old material you want 25 to hear in terms of refreshing your Proceedings 10 1 memories on this matter? 2 THE CHAIRMAN : Well , speaking 3 for myself I must tell you I had a 4 wonderful evening last evening and I 5 re-read the entire transcript of 6 what you presented last time and I 7 don ' t know if everyone else did have 8 the opportunity but I certainly did 9 and I think I am somewhat aware of 10 what was discussed last time . 11 MR . MOTZKIN : There are 12 members of the neighborhood here 13 that were not present at the last 14 hearing . That ' s why I am asking the 15 question . 16 THE CHAIRMAN : Well-- 17 MR . MOTZKIN : I don ' t want to 18 belabor and take up more of the 19 Board ' s time unnecessarily but on 20 the other hand-- 21 THE CHAIRMAN : Why don ' t you 22 proceed and if you can do it in a 23 concise manner . 24 MS . BLUM : Maybe instead of 25 going through all again I should Proceedings 11 1 just add the new material that we 2 have and then we can go through each 3 of the provisions of the Zoning 4 Ordinance as you requested . 5 In terms of additional 6 materials since the last time , 7 E . Robert Wassman was the Chairman 8 of the Zoning Board of Appeals when 9 this case was heard in 1979 and Mr . 10 Wassman was contacted by us for his 11 comments on what was on the mind of 12 the Zoning Board of Appeals at that 13 time . 14 UNIDENTIFIED SPEAKER : Can I 15 object to that? 16 THE CHAIRMAN : You will have 17 an opportunity to speak . 18 MS . BLUM: Mr . Wassman was 19 careful to explain that he could not 20 speak for other members of the Board 21 at that time and did not 22 specifically remember the Hoffmann 23 case from 1979 but on the issue of 24 specificity Mr . Wassman stated that 25 the terms , " . . . in strict conformance Proceedings 12 1 with the plans . . . " Meant exactly 2 what the Board stated , " . . . except 3 for minor details of construction as 4 approved by the Building Inspector . " 5 Mr . Wassman further stated that the 6 Board , " . . . always investigated other 7 available means of relief to 8 determine if another design was 9 possible and that he did not feel 10 that the continuation of a 11 nonconforming use was a valid reason 12 alone for granting a variance . 13 He further stated that this 14 Board felt statements by the most 15 affected neighbor were also very 16 important in making a determination 17 and lastly , he suggested that we 18 look at the minutes of the Zoning 19 Board of Appeals meeting to more 20 specifically assess the discussion 21 and the meeting minutes of the 22 Zoning Board of Appeals revealed the 23 following language and this is a 24 direct quote , "The Board questioned 25 as to the size of the addition and Proceedings 13 1 why it couldn' t be located on the 2 westerly side . " Clearly the size of 3 the addition was an issue to the 4 Board . Given this concern one 5 cannot reasonably assume that the 6 Board was granting a blanket 7 approval to increase the size of the 8 addition in the future and 9 forgetting for a moment about how 10 the Board might have felt in 1979 11 and what they intended , what do you 12 mean as a Board when you grant a 13 variance? In your minds , are you 14 just reviewing and deciding upon 15 what is presented? Or , are you 16 granting approval for any future 17 project on this same footprint , no 18 matter what its volume might be? Do 19 you feel the variances you grant can 20 be extended vertically by adding 21 vertical walls which did not exist 22 previously without the applicant 23 first having to come before this 24 Board again? If so , why did the 25 Garry ' s home three houses away from Proceedings 14 1 the Hoffmanns , have to come before 2 you to obtain a variance for a 3 second story on the same footprint 4 as a previously enclosed porch for 5 which they had already been granted 6 a variance three years earlier and 7 just one last point that we really 8 didn ' t cover last time that deals 9 with an issue that was raised last 10 time about the 1979 variance not 11 presenting future work . 12 The 1979 Zoning Variance 13 obtained by the Hoffmanns , by its 14 terms , allowed only construction 15 according to the specific plans 16 which were approved . There would 17 have been no need for the Board of 18 Appeals to present future projects . 19 The Zoning Ordinance stipulated that . 20 any such work not in conformance 21 with the Zoning Ordinance would have 22 to be referred to the Board of 23 Appeals again for a new variance any 24 way , making a prohibition against 25 construction other than that Proceedings 15 1 approved unnecessary . 2 MR. MOTZKIN : The current 3 project violates 14 provisions of 4 the Zoning Ordinance as follows . 5 THE CHAIRMAN : You intend to 6 run through each of them now. 7 MR. MOTZKIN : Yes . 8 THE COURT : What I would like 9 to do and Mr . Null what I would like 10 to do is run through based upon what 11 was noticed in the application there 12 were 14 sections and just ask for a 13 brief explanation of each of them . 14 Are you able to respond to these as 15 we go along? 16 MR. NULL : One by one? 17 THE CHAIRMAN : Yes , rather 18 than because being this is unusual . 19 We really don ' t run in this 20 particular fashion . In view of the 21 fact that we ' ve 14 particular 22 sections that the applicant has 23 asked for a determination we would 24 like to have an opportunity for the 25 Board to clearly differentiate the Proceedings 16 1 difference between one another 2 rather than having them all melted 3 together . 4 MR. NULL : I will heed 5 whatever suggestions you have but I 6 think it is important to note that 7 there is a more global issue 8 involved with regard to the 9 interpretation and that is having 10 familiarity with land use decisions . 11 I am sure all of you have read the 12 Miran decision . I happen to 1 13 disagree with Ms . Sussman . The 14 determination of Miran is really 15 supportive of what Mr . Jakubowski 16 did here . That is the Miran 17 decision recognized what I had 18 initially stated to this Board at 19 the last session which was where you 20 had while with the Hoffmanns home 21 had pre-existing nonconforming 22 garage . I will be quick . 23 THE CHAIRMAN : I will be more 24 than happy to allow each party to 25 make whatever concluding statements Proceedings 17 1 they want . 2 MR. NULL : I am not looking 3 to be conclusory to have time to 4 present our position . I think , my 5 preference would not go item by 6 item. I think it really takes , it 7 presents it in a different light 8 than we would present at this time . 9 MR . WEXLER: The request is 10 being asked of us to have a ruling 11 from the applicant on all these 12 items and to do that properly you tTV! 13 have to understand a ruling . This 14 is all over the page . 15 MR . NULL : I want to try and 16 be as helpful as I can be in 17 analyzing this before the Board . If 18 that ' s what you prefer then I will 19 listen one by one and come up and 20 comment . 21 MS . BLUM : Each one of these 22 items is certainly in noncompliance 23 with the ordinance which would 24 require a variance and I think 25 there ' s a underlying , very strong Proceedings 18 1 difference upon the point of what 2 this , the effect of this but I think 3 the cumulative numbers of these 4 variations from the ordinance is 5 significant . It should be stated . 6 MR . NULL : I don ' t think 7 there is any synergy derived by 8 reason of numbers . I will be happy 9 to respond by item by item . If 10 there is 25 or it was two the 11 magnitude , the numbers makes no 12 difference from the initial issue of 13 the interpretation . 14 MR. MOTZKIN : May I proceed? 15 MR . NULL : I just want to ask 16 for a clarification , I think the 17 initial description of the height of 18 the roof replacement should be 19 clarified because the measurement of 20 the height of the roof has been 21 between 11 feet and 18 feet isn ' t 22 all within this area of the rear of 23 the side yard setback . I am not 24 going to say anything more on that . 25 THE CHAIRMAN : If I may at Proceedings 19 1 the end you will certainly have an 2 opportunity to cover whatever ground 3 has not already been covered . What 4 I would like to cover at this point 5 are the individual issues with 6 regard to the sections of the Zoning 7 Code . 8 MR . MOTZKIN : Section 89-1 . B , 9 states ; This project has adversely 10 affected our outward views , sunlight 11 and privacy of our home and others . 12 These are places where we spend 13 extended periods of time in our 14 sunroom, in our bedroom, in our 15 cutting garden and they have 16 literally been overwhelmed and 17 overshadowed by this project . 18 MR . WEXLER : Let me just 19 interrupt one moment , this type of 20 analysis is for analysis as if a 21 variance was in front of us . The 22 question in front of this Board was 23 a permit legally or not legally 24 issued on this case . I am getting a 25 sense of this here what is happening Proceedings 20 1 here now you ' re criticizing as make 2 believe this job was not built for a 3 moment . It is the variance you are 4 criticizing . I am trying to get the 5 essence of your application here so 6 we can move onto the whatever 7 decision making . If you understand 8 what I am saying . 9 MR . MOTZKIN : That ' s my 10 problem with going item by item . 11 The question before this Board is 12 was Mr . Jakubowski ' s decision to 13 issue a Building Permit correct and 14 if not then a variance is needed . 15 THE CHAIRMAN: That ' s 16 absolutely correct and what was 17 cited were 14 sections of the law of . 18 the Zoning Law as reasons for the 19 incorrect determination on the part 20 of the Building Inspector . 21 MR . NULL : 89-1 . B . That ' s 22 what you wanted me to do . 23 THE CHAIRMAN : I will like it 24 as quickly as possible . 25 MR . NULL : I will be . Proceedings 21 1 Section 89-1 . B is under the Article 2 One of the Ordinance , Mamaroneck 3 code . That ' s entitled general and 4 it really sets out the intent of the 5 ordinance that ' s a general preamble 6 to the ordinance . No regulatory 7 provision in it with regard to 8 protecting anybody ' s light , air or 9 otherwise with any specificity . It 10 is not to say that there aren ' t 11 regulations in the ordinance that 12 are adopted consistent with this 13 intent but to cite that there ' s a 14 violation somehow of the intent of 15 the ordinance without having a 16 section that you cite that seeks to 17 implement that intent I think misses 18 the point completely . 89-1 . B says 19 to provide adequate light , air and 20 privacy to secure safety and other 21 fire from danger overcrowding which 22 is typically a building code and 23 fire code provision setback 24 requirement of the ordinance and to 25 prevent overcrowding of the land and Proceedings 22 1 undue congestion of population . 2 There ' s really with due respect 3 there no teeth to that provision 4 such that anyone can say there is a 5 violation of it by citing these . 6 MR. MOTZKIN : These are 7 general provisions of the Zoning 8 Ordinance B , C and D and we can go 9 onto the more specifics but I want 10 to point out that 89-1 . B , C and D 11 are general purposes and they should 12 be , that is the intent of the 13 ordinance . 14 MR . NULL : Can I respond to C 15 and D 16 MS . RECIO : I think it ' s 17 better if he responded later . It is 18 getting awfully choppy . I get the 19 feeling that you are losing your 20 train of thought . 21 THE CHAIRMAN : I just want to 22 be sure that the 14 different 23 sections that Board members are 24 asked to review and have an 25 opportunity to clearly look at each Proceedings 23 1 one of them in an individualized 2 basis and we can move on and resolve 3 the issues that are in front 4 MS . RECIO : Only that I had 5 that sense from the applicant that 6 he was perhaps-- 7 MR . WEXLER: Isn ' t the 8 decision on this case that we would 9 address each one of these items . 10 MR . CHAIRMAN : Not 11 necessarily but understand the logic 12 of the applicant has made in terms 13 of all of the sections that he is 14 quoting . 15 MR . NULL : I will be very 16 quick on this one it just seems to 17 me I would challenge anyone in this 18 Board or any other community to find 19 any situation where a variance was 20 actually granted from something such 21 as 89-1 . B , C or D . I don ' t think 22 that these are provisions that would 23 normally call for a variance which 24 may be enforced by virtue of an 25 issuance . Proceedings 24 1 MS . RECIO : Actually, your 2 client stated they refer to it item 3 four in 1979 certification refers to 4 reason why they put their building , 5 their construction where it was 6 because otherwise it would have 7 affected the light and air of the 8 living room so clearly it is 9 something to consider . 10 MR . NULL : I am not saying it 11 is something not to be considered . 12 I am just saying it is not something 13 that would be able to be varied . 14 MR. WEXLER : The code is set 15 up that setbacks from the property 16 lines theoretically provide for 17 proper light and ventilation once 18 you violate and go close to the 19 property line you can then hinder . 20 MR . NULL : The general intent 21 of the ordinance is set out in the 22 these purposes . I am not 23 questioning that at all . I am 24 saying that when you are listing the 25 sections that require a variance Proceedings 25 1 these three sections do not require 2 a variance . There may be the 3 rationale for the adoption of the 4 regulations that ultimately-- 5 MS . SUSSMAN : May I ask , Mr . 6 Chairman , that my client be allowed 7 to continue to present at this 8 point . I think to interrupt him 9 interpretation of each point that he 10 has chosen to raise as relevant from 11 his perspective in regard to which 12 is what I asked for but to have this 13 constant response I think he is 14 disrupted his opportunity to present 15 his case . 16 THE CHAIRMAN : So , be it . 17 MR . NULL : Mr . Chairman , , do 18 you want response item by item or 19 not just so I will sit down and take 20 notes . 21 THE CHAIRMAN : If they ' ll be 22 brief I will prefer it which is what 23 I asked for in the first place . 24 MS . SUSSMAN : Mr . Chairman , 25 may I reiterate I 'm sorry but I find Proceedings 26 1 responses are not-- Obviously the 2 Hoffmann ' s attorney, Mr . Null has a 3 very different position on both 4 violation issues and the need for a 5 variance issue and I think he 6 certainly should have his 7 opportunity but the appeal has been 8 brought by Mr . Motzkin and Ms . Blum 9 and I think that I will beg the 10 Board ' s indulgence to allow them to 11 present their appeal be in whole 12 rather than as a dialogue . 13 THE CHAIRMAN : Okay . 14 MR. KIRKPATRICK : I will take 15 the opportunity among ourselves to 16 try for a summary and sentences of 17 each of those points to make sure we 18 covered--. 19 MR . WEXLER: Well , I made a 20 list of them on this piece of paper . 21 As I am putting my own mind whether 22 general or primary . 23 MR . KIRKPATRICK: We . can 24 still cover each point to make sure 25 it is done . Proceedings 27 1 THE CHAIRMAN : Will that be 2 okay with you? We will just proceed 3 with all of them and make comments 4 at the end . Whatever you prefer . I 5 was really trying to deal , well , 6 break it down to its individual 7 pieces . If you feel it is easier 8 for you that way we will proceed . 9 MS . SUSSMAN : Thank you . 10 THE CHAIRMAN : Okay . 11 MR . MOTZKIN : 89-1 . 0 takes 12 the character of the R-15 residence 13 district . This project is too 14 close , too large and too high and 15 stylistically inappropriate relative 16 to neighboring properties . 17 89-1 . D , concerns the value of 18 property and neighboring properties.. 19 Our property and our neighboring 20 properties have not , our rights have 21 been violated . 22 89-3 , which is not in our 23 original application but is clearly 24 important here a yard is defined as 25 an open space between a building and Proceedings 28 1 a lot line which is unoccupied and 2 unobstructed from the ground upward . 3 The project encroaches into the 4 front and side yard above the second 5 story . 6 MS . BLUM : Just to refresh 7 your memory your is the encroachment 8 we showed last time in terms of the 9 front elevation and the side 10 elevation . The side encroachment is 11 50 feet long by 4 1/ 2 feet wide . 12 MR. MOTZKIN : That ' s 14 . I 13 try to put these in numerical 14 sequence from the ordinance . 15 THE CHAIRMAN : Mr . Null , I 16 hate to add more confusion then if 17 we are going to deal with it in 18 total we will come back to it . Can 19 you do it that way? 20 MR. NULL : My only concern if 21 the Board presents in the 22 application of new items there ' s no 23 jurisdiction . 24 MR. WEXLER: 89-3 is not on 25 the application . Proceedings 29 1 MR. MOTZKIN : It is in fact a 2 definition and it is important . 3 MR . WEXLER : I think we 4 understand definition . We are going 5 over what we are asked . 6 MR. MOTZKIN : I will review 7 the other 13 . 8 89-9 the project alters and 9 enlarges a residence without 10 conformity to the Zoning Ordinance . 11 The project further encroaches into 12 front and side yard above the second 13 story . The project first should not 14 have been permitted without first 15 obtaining the zoning variance . 16 89-32 . A ( 1) , lot is 17 undersized . 12 , 500 square feet 18 whereas the zoning requires 15 , 000 19 square feet . 20 89-32 . B ( 1) , front yard 21 encroachment from 1979 construction 22 has increased the extent of 23 nonconformance of this project . 24 This is not an architectural 25 projection as per Mr . Null ' s Proceedings 30 1 argument of 89-44B . 2 89-32 . B ( 2 ) , the project does 3 not conform with side yard 4 requirements . Previously there were 5 no walls above the second story . 6 Specific conditions and limitations 7 of 1979 Zoning Variance have been 8 violated by a completely different 9 design . The provisions of the 10 current Zoning Ordinance has been 11 violated and are we to assume the 12 variances give property owners 13 rights beyond those stipulated in 14 variances? Are we to assume that 15 the zoning laws do not apply? 16 89-57 , a nonconforming 17 building may not be issued a permit 18 to increase the extent by which the 19 building fails to meet yard 20 requirements . The project extends 21 the degree of nonconformance further 22 encroaching the front and side yard 23 above the second story . 24 89-58 . B , required yards apply 25 to an undersized lot . Lot is Proceedings 31 1 undersized . 2 89-71A , the Building 3 Inspector does not have the right to 4 issue a permit for any alteration or 5 enlargement which would not be in 6 full compliance with the provision 7 of the Zoning Ordinance . 8 89-71 . B , any permit approved 9 in violation of the Zoning Ordinance 10 shall be null and void and of no 11 effect . 12 89-73 . A, only the Zoning 13 Board of Appeals is empowered to act 14 on issues of the violation of Zoning 15 Ordinance . No authorization was 16 obtained from this Board . 17 89-76 . B , any building altered 18 or enlarged contrary to the 19 provision of the Zoning Ordinance is 20 considered unlawful . 21 THE CHAIRMAN : Thank you . 22 MR . NULL : I am going to go 23 to the definition of yard because I 24 think it real ties in with the 25 different issues here . Not only the Proceedings 32 1 concerns that I previously discussed 2 with regard to Miran case and the 3 way in which the variance granted in 4 1979 provided for the second story 5 addition to be a legal addition not 6 a nonconforming addition and 7 therefore it is in a separate , a 8 different from the Miran case 9 recognized that variance for a 10 structure that encroaches into a 11 yard that that structure is then 12 legally existing . It is not 13 nonconforming and therefore when you 14 are looking to add into that area 15 otherwise occupied by that deck in 16 Miran you are not increasing in any 17 nonconformity . You have a 18 conforming side yard . 19 Now, it is important to look 20 at the definition that you have for 21 yard because of course the setbacks 22 rely upon that provision . The yard 23 is defined as an open space which 24 lies between the building , the group 25 of buildings and the nearest lot as Proceedings 33 1 an unoccupied and unobstructed from 2 the ground upward . This is key 3 because the area that we are talking 4 about doesn ' t have any ground . It 5 is unoccupied . You have a building 6 below the area that ' s occupied is 7 not lying between the building and 8 the ground above it . There is a 9 building between this area therefore 10 there is no yard that. being 11 encroached into by this roof 12 replacement that we are dealing with 13 and that comes into play throughout 14 the analysis that Mr . Motzkin and 15 Ms . Blum intend to voice on . 16 What Mr . Jakubowski did here 17 in fact , if you look at the Miran 18 decision the Miran decision 19 completely conforms to what Mr . 20 Jakubowski did . In our situation in 21 1979 we had a nonconforming garage . 22 We sought to add a second story and 23 we were granted a variance for that 24 second story addition . That second 25 story addition wasn ' t nonconforming . Proceedings 34 1 It was a legally permitted addition . 2 It had a legally permitted side yard 3 setback of approximately 5 1/ 2 feet . 4 Therefore when we came to replace 5 that roof it was on top of that 6 legally permitted addition . We were 7 not looking to increase 8 nonconforming . There was no 9 nonconforming to increase . It was a 10 side yard of approximately 5 1/ 2 11 feet that was legally permitted to 12 be there in the second story . There 13 is no encroachment into the yard at } 14 all by the replacement of this roof . 15 We go to the other sections 16 that Mr . Motzkin cited 89-90 17 conformity required , you got a 18 conforming side yard of 19 approximately 5 1/ 2 feet . This is a 20 conforming side yard . This doesn ' t 21 encroach . This addition does not 22 encroach into that side yard . No 23 ground shall be occupied . Same 24 thing frankly with the front yard 25 that was raised and I mentioned in Proceedings 35 1 our application 89-44 . B which 2 permits architectural features to 3 extend into the front yard 4 approximately two feet and that 5 section is somehow chopped up 6 whether it was quoted back in this 7 Mr . Motzkin and Ms . Blum' s letter to 8 Mr . Jakubowski . 89-44B says 9 projecting architectural features 10 and it goes on cornices , eaves , 11 chimneys , bay windows , windowsills , 12 bell towers and other architectural 13 features may not project more than 14 two feet of the required yard then 15 it says because they have tried to 16 tie together this 10 foot limitation 17 as if it applies to the 18 architectural features . 19 The 10 foot limitation 20 applies in the following sentence 21 the sum of any bay window projection 22 on any wall shall not exceed 1/ 4 of 23 the length of such wall and no such 24 projecting bay window shall have a 25 total length of more than 10 feet . Proceedings 36 1 No , there is nothing about an 2 architectural feature of a roof 3 overhang or anything else on any 4 building being limited to 10 feet . 5 The front yard encroachment that Mr . 6 Jakubowski should have recognized as 7 requiring a variance to put before 8 here is frankly an alternative going 9 to be here tonight . Any way it is 10 covered by 89-44 . B . It recognizes 11 that approximately 1 1/ 2 foot 12 projection that we ' ve shadow boxed 13 projection it continues out in 14 existing projections that was here . 15 This is the projection that was 16 built on the second story addition 17 and this will rise above it straight 18 up . 19 MR . WEXLER: Is there living 20 space in that projection? 21 MR . NULL : Here . 22 MR. WEXLER: In the roof? 23 MR . NULL : I don ' t believe 24 there is . 25 MR . MOTZKIN : That is a Proceedings 37 1 master bedroom . 2 MR. WEXLER : It ' s not really 3 a projection . 4 MR. NULL : I don ' t know how 5 deep the wall is . 6 MR . WEXLER: Is there living 7 space? 8. MR . NULL : The room behind 9 the wall is living space . I don ' t 10 know where the floor begins and I 11 don ' t know if any of that area is 12 occupied but I don ' t see any 13 restriction here that says an 14 architectural feature can' t contain 15 above that architectural feature any 16 living space . It doesn' t say that 17 anywhere . If it comes out-- 18 MR . MOTZKIN : Can we get a 19 clarification of what an 20 architectural feature is versus a 21 facade for God ' s sake . 22 THE CHAIRMAN : Sir , may I 23 just I think the last meeting we ' d a 24 discussion about taking a giant 25 inhale . I don ' t want to have to ask Proceedings 38 1 you again and I will ask you to 2 leave if that happens again . 3 MR. MOTZKIN : Okay . 4 MR. NULL : There is no 5 question this is an undersized lot . 6 It was an undersized lot frankly 7 when it was subdivided way , way 8 back . There ' s no question whether 9 this is a undersized lot . It was an 10 undersized lot when it was 11 subdivided . It was undersized when 12 it was built upon and it is still 13 undersized . That ' s been recognized 14 throughout the course of the 15 treatment of this building and in 16 fact it is a pre-existing 17 nonconforming lot . We are not doing 18 anything to change the lot size . We 19 are not reducing the lot size so 20 this is no building-- 89-9 21 Conformity Required says , "No 22 building shall be erected , moved , 23 altered , rebuilt or enlarged in any 24 manner except in conformity with 25 this ordinance . " Nor shall any land Proceedings 39 1 or building be used designed or 2 regarded to be used for any purpose 3 except in conformity with that 4 ordinance . The use of this building 5 is residential . It has always been 6 residential . It is not out of 7 conformity with the ordinance . 8 The lot is consistently being 9 used for the purpose with which was 10 subdivided back before the ordinance 11 was in place requiring 12 , 500 square 12 feet lots . 12 , 500 square foot lots 13 continue to be 12 , 500 square foot 14 but in the area in which this roof 15 replacement occurs doesn' t even 16 increase the coverage on the lot 17 beyond that which existed not only 18 prior to 1979 but subsequent to 1979 19 when the second story addition was 20 built . 21 89-32 . A ( 1 ) , is the undersized 22 lot provision that I just 23 referenced . Again , we are not 24 changing any of that . The 25 application that came before Mr . Proceedings 40 1 Jakubowski didn ' t propose to change 2 any of that . If there was a 3 proposal to modify any provision of 4 this house I don ' t believe that a 5 variance would be required merely 6 because it is on an undersized lot . 7 The ordinance doesn' t say that . The 8 sole issue here is whether to 9 interpret this roof replacement as 10 an expansion of the side yard in a 11 manner which would otherwise require 12 a variance . That ' s the limited 13 issue . We are not dealing with the 14 size of the lot . We are not dealing 15 with any other implication of an 16 undersized lot . 17 89-32 . B ( 1 ) , is yards , courts 18 and open space . I believe that I 19 covered that before with regard to 20 front yard and the architectural 21 feature discussions . The side yard 22 issue I mentioned also the fact that 23 there is no yard that ' s being 24 encroached by this . There is no 25 ground beneath that ' s affected . Proceedings 41 1 89-57 , which is a 2 nonconforming building . Deviations , 3 a building that is conforming in use 4 but does not meet the height , yard , 5 court etc . , requirements shall be 6 considered to be nonconforming . 7 There ' s no increase in the 8 nonconformity to the extent that 9 there ' s a nonconformity that affects 10 the side yard we are not increasing 11 the side yard . The yard again is 12 rather between the ground and the 13 building . Unoccupied ground is the 14 way the yard is defined . This is 15 clearly not an unoccupied ground 16 under the garage . Occupied . 17 Coverage , 89-58 . B , where a 18 lot doesn ' t meet the required 19 dimensions of a residence district 20 the minimum required and rear yards 21 shall be those of the residence 22 district in which the lot ' s depth 23 would meet the current requirements , 24 etc . 25 We are conforming with the Proceedings 42 1 requirements . We got the same front 2 yard that this building has always 3 had except for the architectural 4 feature and you may differ with the 5 interpretation of the architectural 6 feature . That ' s why you are the 7 Board and we are making a 8 presentation but my interpretation 9 of the ordinance is that an 10 architectural feature isn ' t limited 11 to the 10 foot length that Mr . 12 Motzkin and Ms . Blum claim is 13 applicable to it . That only applies 14 to bay windows and there is nothing 15 on the ordinance on its face that 16 says you can ' t have habitable area 17 behind that architectural feature . 18 I don ' t know where it would be 19 begin . I just don ' t know in that 20 house what the story is . I got a 21 whole bunch of other sections that 22 were thrown out here . 23 Also , 89 -71 . A, Enforcement . 24 There is no question that Mr . 25 Jakubowski is the enforcement Proceedings 43 1 officer for the Village , the Town 2 sorry in connection with this 3 matter . He has got the authority to 4 make the initial interpretation 5 that ' s why we are here and he has 6 got to make that determination . He 7 is the only one that can subject to 8 your review . 9 89-71 . B , The ordinance shall 10 be enforced by the Building 11 Inspector according to the provision 12 of the ordinance . That ' s why we are 13 here . It doesn ' t add to or take 14 away from whatever has been done to 15 the site . 16 89-76 . A, I am getting near 17 the end here , violations and 18 penalties . Anyone who violates the 19 provision of the ordinance obviously 20 is subject to being called to task 21 and leading to respond . We are all 22 here to address whether in fact 23 there has been any violation of the 24 ordinance . We submitted there 25 hasn ' t been of course Mr . Motzkin is Proceedings 44 1 going to take the opposition . 2 89-76 . B , The Board of Appeals 3 shall have the power and duty . You 4 have got the power to make the 5 decision here . No one is 6 questioning your jurisdiction to 7 make determination . We submitted an 8 alternative application . If you 9 decide for some reason that Mr . 10 Jakubowski ' s decision was improper 11 we are seeking relief for an area of 12 variance because the building is 13 substantially completed . We will 14 get into that in the next 15 application . That ' s all I have to 16 say tonight in responding to their 17 comments . 18 THE CHAIRMAN : Yes , Ms . Blum . 19 MS . BLUM : I will try to be 20 brief . The first is just to pass 21 around , it is a minor point but 22 related to the front projection so 23 you can read that provision . This 24 is just really a wall , the front 25 wall of the building . It is not a Proceedings 45 1 roof overhang or any of the other 2 features that is specifically listed 3 by name in that provision so we 4 don ' t understand where , how this can 5 be viewed as a feature or roof 6 overhang or shadow line . 7 The second point is we had 8 discussed this last time in terms of 9 the Miran case . The main issue we 10 saw was that the porch B , deck B was 11 not in and of itself in conformance 12 which makes it very different from 13 this situation where this story , 14 excuse me , the porch b was 15 conforming in and of itself . This 16 is different in that in and of 17 itself if it were built with columns 18 it would have to come before you for 19 a variance because it ' s not in 20 compliance with setback in and of 21 itself isolated . That ' s a very , 22 very critical point that makes the 23 difference from the Miran case and 24 the last thing really is that I 25 think variances do deal with Proceedings 46 1 something other than footprints . 2 Footprints they clearly deal with 3 bulk and height and if bulk and 4 height do not matter the Hoffmanns 5 in 1979 would not have had to obtain 6 a variance to build over their 7 garage because the second story they 8 built did not change the footprint 9 of the garage at all and yet they 10 had to get a variance so if there ' s 11 a determination that a variance is 12 it means that people throughout this 13 community can really build upon 14 previously granted variances going 15 up in height and what ' s here is that 16 this third story in and of itself is 17 not in compliance with zoning or 18 with the previous ' 79 variance . 19 MR . WEXLER : I think the ' 79 20 variance from your drawings they in 21 fact increased the size of the 22 footprint but not building over the 23 garage but extending it . 24 MS . BLUM: Actually the 25 variance did not increase it . The Proceedings 47 1 variance was approved for something 2 that continued the wall upwards . 3 MR . WEXLER : Went deeper . 4 They built more . 5 MS . BLUM : They built more 6 than the variance permitted . The 7 1979 ,variance and the drawings that 8 were approved continued the garage 9 upwards but what happened was when 10 it was constructed it was built 11 forward to align with the projecting 12 main gable . We pointed that out 13 last time . It was an encroachment 14 above and beyond what was approved 15 in the variance in ' ' 79 . 16 MR . MOTZKIN : May I add two 17 additional points , what was approved 18 in 1979 was this line here . What 19 was built further encroached into 20 the front yard then was approved in 21 the 1979 variance . 22 Secondly , a yard can be taken 23 at any plain above the ground . It 24 can be taken above what existed in 25 1979 so the yard can be here and in Proceedings 48 1 that case the yard has been 2 violated . The 10 foot yard has been 3 violated because of a plain 30 feet 4 above the ground or 25 feet above 5 the ground where no building 6 existed . If you take the yard goes 7 from the ground all the way up to 8 whatever the definition says 9 unobstructed from the ground upward . 10 Upward meaning all the way up . At 11 this level there is no building and 12 there is a yard encroachment . 13 MR . NULL : Could I just see 14 what was passed because the 15 articulation of what was in included 16 as an architectural feature includes 17 other architectural features . It is 18 a generic conclusive phrase . 19 MR . JAKUBOWSKI : What I just 20 gave counsel is a response to a 21 letter I received from Mr . Motzkin 22 and Ms . Blum the other day . They 23 finished it . It was typed up this 24 morning . It was mailed to Ms . 25 Motzkin/Blum and the essence of that Proceedings 49 1 letter is that in 1979 the original 2 plan approval was for a 3 perpendicular plain directly over 4 the garage wall . The intrusion that 5 we were discussing in 89-44B was the 6 original discussion we ' d with 7 Motzkin/Blum and that was regarding 8 approximately five inches which I 9 think all of us will agree is the 10 feature . 11 The actual encroachment in 12 the letter produced the front yard 13 to 38 ' 4 " not 39 ' 5 " which was what 14 was shown on the original survey . 15 We also received an upgraded survey 16 because the original survey there 17 was some question about where the 18 39 ' 5 " foot ran to so on that basis 19 in my response to the letter of 20 Motzkin/Blum I have said that yes , 21 that was in violation in 1979 and 22 that a variance would be required to 23 be issued by this Board for a front 24 yard intrusion to 38 ' 4 " . That ' s the 25 substance of the letter so I don ' t Proceedings 50 1 think any other discussion as far as 2 I am concerned possibly as far as 3 the Board is concerned is necessary 4 about the need for variance on the 5 front . What ' s clarification of the 6 plans something is being worked , 7 turned in to show that very clearly . 8 I thank them for that effort . 9 MS . SUSSMAN : Mr . Chairman , 10 may I? 11 THE CHAIRMAN : Yes , Ms . 12 Sussman . 13 MS . SUSSMAN : What I would 14 like to summarize what has I think 15 transpired here regarding the list 16 of specific provisions of the Zoning 17 Ordinance I think there are really 18 two dimensional variations which 19 have been identified and I think 20 that the other items listed go to 21 purpose of the Zoning Ordinance and 22 what applies to this lot . 23 Yes , required yards applied 24 to an undersized lot and various 25 other provisions permit approved in Proceedings 51 1 violation of the Zoning Ordinance is 2 null and void of no effect . These 3 things are relevant in general to 4 the issues in front of us but we are 5 dealing with some particular 6 violations and I think that Mr . Null 7 raised the point about 89-3 . B being 8 jurisdictional . I think that ' s an 9 informational point . It is not a 10 violation per say but I do think it 11 sheds light on just that issue in 12 front of us whether that yard has 13 been further encroached on by this 14 project and I think it ' s quite 15 evident from the other provisions 16 for the sum total of these 17 provisions that there are very 18 serious effects from this addition 19 to this building and in essence I 20 think it demonstrates that this is a 21 matter that the Board should be 22 concerned about and in fact these 23 violations are significant . 24 We go to the yard issue and 25 the Miran case , Mr . Null suggested Proceedings 52 1 that dispose of this case and I 2 think he is looking at it from a 3 very ttfo dimensional point of view . 4 I think we are dealing with what 5 goes up in this case and what 6 happens to air and light and what 7 you impose this volume and bulk of 8 an addition onto this piece of 9 property and I think that ' s just 10 what we are , just what ' s going on 11 about yard . I think to say that 12 anything can be done within the 5 . 5 13 foot yard once the 1979 variance had 14 been granted it is kind of 15 ridiculous in itself when you come 16 to consider that there are effects 17 on the surrounding properties and 18 that that ' s what the Zoning 19 Ordinance is about in the community 20 to regularize and consider the 21 individual project and its effect . 22 I really wanted to conclude 23 with that that I think it is 24 obvious , it is really quite obvious 25 that this is an encroachment , that • Proceedings 53 1 there are violations here and that 2 there was no , there really is no 3 support to say that that was simply 4 legalized by the 1979 variance which 5 was very specific and I think that 6 that legalization doesn ' t really 7 apply . 8 MS . RECIO : I have a 9 question , there is I don ' t know 10 which application it was contained 11 in , there is a question raised about 12 almost the grandfathering in of 13 attic space that is permissible . 14 Can you address that? I don ' t 15 remember who it was? 16 MS . BLUM: That ' s not a 17 zoning issue . That ' s really not for 18 discussion tonight . 19 MS . SUSSMAN : That is related 20 to the building code . 21 MS . BLUM: That ' s not a 22 zoning issue . 23 MS . RECIO : All right . 24 MR . NULL : I think it is 25 important to note that of all the Proceedings 54 1 sections cited not one of them is 2 height . There is no height 3 violation in the quote on quote , 4 "side yard" claimed to exist and 5 claimed to have been encroached by 6 this roof replacement . This doesn ' t 7 exceed the 2 1/ 2 story building of 8 35 feet that ' s permitted in the R-15 9 district and there has been no 10 claim , there can be no claim that it 11 does . That ' s important when you 12 back into the general provisions of 13 the ordinance . It covered light and 14 everything else . The point I was 15 trying to make to begin with is that 16 yes , while the general intention of 17 the ordinance is to protect light 18 and open space and everything else . 19 If you comply with the actual 20 regulations you can ' t go back to 21 those provisions and say but when 22 you built that 2 1/ 2 story building 23 or 35 feet you blocked my light and 24 therefore you can ' t be permitted to 25 have that 2 1/ 2 story building Proceedings 55 1 because you blocked my light . 2 Well , if it conforms with the 3 regulations of the ordinance then it 4 doesn ' t matter whether somebody 5 else ' s light is actually affected . 6 Not it doesn ' t matter on a personal 7 level but it doesn ' t matter on a 8 zoning legal conforming basis . You 9 can still be legally conforming and 10 block somebody ' s light . You can 11 still be legally conforming and take 12 up someone ' s open space but only 13 within certain parameters that ' s 14 what the Zoning Ordinance says . 15 When you come back to look at it and 16 says what yard did the Hoffmanns 17 encroach upon , if any , by an 18 addition that has no ground below 19 it . 20 If effect that doesn ' t cover 21 anything more than what was already 22 covered of the ground . You can 23 claim . It shouldn ' t be claimed that 24 a yard somehow exists over the roof 25 of this building . The yard , the Proceedings 56 1 front yard exists from the face of 2 the building forward . The side yard 3 exists from the side facing the 4 building outward , etc . , all the way 5 around the perimeter of the 6 building . There is no yard that 7 moves vertically up the wall and 8 comes back up along the roof . It 9 doesn ' t happen not by the definition 10 of yard under the ordinance . 11 MR. WEXLER : You realize that 12 in our ordinance it is set up to 13 protect light and air . It is not 14 just a 10 foot side yard . It is the 15 sum of two side yards can ' t be less 16 than 30 feet . The safe guard a lot 17 which is in this case 100 feet wide 18 in an R-15 zone which requires 19 15 , 000 square feet . They are really 20 set up specifically for light and 21 air , separation of space and 22 buildings . You know , I am just 23 saying we all seem to be missing 24 something . This would have to be a 25 22 foot side yard . Proceedings 57 1 MR. NULL : I understand what 2 you are saying . At the same time 3 the first issue to be addressed is 4 is there a yard and does the yard 5 conform and the way you begin to 6 answer that question is to measure 7 what the yard is . If the yard 8 exists from the side of this 9 building to the property line and 10 that ' s approximately 5 1/ 2 feet . 11 The roof replacement doesn' t 12 encroach into that 5 1/ 2 foot space , 13 not at all and that ' s what Mr . 14 Jakubowski determined when he issued 15 the Building Permit and I know that 16 Mr . Motzkin and Ms . Blum are 17 challenging that . It may well be 18 that you get more light and air if 19 the ordinance did require something 20 different than that but the 21 provisions regarding the side yard 22 that requires so much for each side 23 or so much for the two combined 24 begin by saying for the side yard 25 and therefore you have to go and Proceedings 58 1 measure the side yard and that side 2 yard isn ' t be affected by that roof . 3 It is not being affected so whether 4 you would have gotten more light by 5 doing something different if the 6 height conforms with the Zoning 7 Ordinance and the yard isn ' t being 8 encroached further I don ' t believe 9 there is a basis for a variance 10 merely because you could get more 11 light , you could get more open space 12 if something else was done that the 13 ordinance doesn ' t require . 14 THE CHAIRMAN : Yes , Ms . Blum . 15 MS . BLUM : Well , when one 16 talks about definition of yard or 17 not there ' s clearly a building that 18 is nonconforming that did not exist 19 previously which was not validated 20 by the previous zoning variance and 21 it is this new building which is not 22 in compliance which is having a 23 negative impact and I think that is 24 really what is critical that it is 25 within an area that is noncomplying Proceedings 59 1 and it did not exist previously and 2 in our view it should have come on 3 behalf the Board and we don ' t 4 understand why other projects as we 5 said one three houses away obtained 6 a variance to legalize a porch that 7 was enclosed that it was not 8 compliant and yet they had to come 9 before the Board to build on top of 10 it and it just seems to be very 11 clear cut case that if there were no 12 orange here we wouldn ' t be before 13 you but there is and that ' s exactly 14 what ' s problematic from a bulk and 15 height and massing standpoint from 16 this project and to me that ' s what 17 the Zoning Ordinance is intended to 18 protect . 19 THE CHAIRMAN : Any questions 20 from the Board members? Are there 21 any questions or comments from the 22 public? Yes , please identify 23 yourself , name and address . 24 MS . WEED : My name is Sandy 25 Weed, I live at Six Hawthorne Road Proceedings 60 1 and public speaking is not big on me 2 and I am using my maiden name . I 3 would like to say in support of the 4 Board that they don' t make decisions 5 lightly . We tried to sell an 6 apartment that had some question 7 about some permit or plumbing last 8 summer in Chatsworth Gardens and 9 we ' d to go back for 30 years 10 reconstruct plans because they 11 didn ' t conform. The Board looks 12 very , very carefully at everything . 13 They have been plumbing , 14 electricity , air whatever and I 15 think that the Board made a decision 16 that there was not a variance needed 17 for the Hoffmanns . I know the 18 Hoffmanns applied properly . I am 19 sure Mr . Hoffmann being in the 20 construction business knows exactly 21 what the laws are and what he can do 22 and cannot do . I think that the 23 Board to make a decision and have it 24 challenged so drastically is going 25 to set a precedent that the Board is Proceedings 61 1 going to , is this going to be the 2 form for any neighbor that doesn ' t 3 like his next door neighbor ' s roof 4 pitch and wants and feels that it is 5 not correct . This is to protect the 6 whole community on a whole not to go 7 after somebody ' s 5 1/ 2 foot roof 8 pitch and I just , I really hope that 9 a stand is taken as I say came very 10 strongly to their decision . It was 11 not light and I think that part of 12 what we have to do in this community 13 to live with the decision . That ' s t 14 why we ' ve them . Thank you . 15 THE CHAIRMAN : A point of 16 clarification in the original 17 decision on this Building Permit was 18 not brought to this Board which is 19 why it ' s here today . The decision 20 was made by the Building Department 21 which is being appealed by the 22 public . 23 Thank you . Any other 24 comments? Yes , ma ' am . 25 MS . MORRIS : Jane Morris , 24 Proceedings 62 1 Howell Avenue . I was here at the 2 previous meeting and I spoke I don ' t 3 know if you want me to speak again 4 or if it is really your call? 5 THE CHAIRMAN : It is up to 6 you . 7 MS . MORRIS : I am just going 8 to give you a letter which it is a 9 summary of what I am going to say . 10 I live directly behind and caddy 11 corner to the Hoffmanns . As I 12 mentioned last time we were not 13 notified of the addition and 14 basically knew that there was one 15 because we saw it being built . It 16 is very big . It is a big and 17 visible and negative presence in our 18 back yard so big that we called the . 19 Town to find out if you know, what 20 was going on . We were surprised 21 that we hadn ' t heard about it and 22 that there hasn ' t been a variance . 23 We were told that a permit had been 24 granted without a variance 25 application which surprised us �t. Proceedings 63 1 because we hadn ' t had an opportunity 2 to express any of our feelings about 3 it . We use our back yard a lot 4 basically apart from the three 5 months in the winter we are outside 6 all the time . It ' s a nice yard . It 7 is fairly big and level yard for 8 Larchmont . It is not as nice as it 9 was . There is a very massive 10 presence that used to not be there 11 and is bigger than any of other 12 houses that surrounds us . That ' s 13 it . 14 THE CHAIRMAN : Are there any 15 other comments from the public? 16 Yes , sir . Please identify yourself . 17 MR . ABRAHAMSON : My name 18 Danny Abrahamson , 1274 Palmer . 19 Clearly , I am not directly affected 20 by this . You can tell from my 21 address . I do want to say in terms 22 of my general understanding of the 23 community and the rules of the road 24 here it would seem to me that in 25 terms of protecting the community Proceedings 64 1 and the people in terms of presence 2 the one things that strikes me in 3 the level of common sense not being 4 knowledgeable of the details of the 5 law and architectural and so on is 6 that there ' s a sense about this 7 neighborhood that you can be assured 8 that nothing drastic is going to 9 change in your immediate environment 10 without some kind of discussion . 11 You don ' t want to have to wake up 12 and find that the house next door 13 has changed shape in any significant 14 way . ( inaudible) --- 15 It seems to be that the end 16 result is that the house next door 17 to these folks did change and change 18 without the kind of discussion that 19 a variance hearing , if that ' s the 20 term guarantees so it just seems to 21 me on the level of common sense 22 without wishing to make enemies I 23 don ' t want to see the community 24 galvanized . It is a very sweet and 25 harmonious community . There ' s just Proceedings 65 1 a level of common sense , the 2 expectation there will be some 3 opportunity for public discussion . 4 Should the folks next door do 5 something more radical than changing 6 the roof line slightly or fixing up 7 their garage it seems to me and 8 looking at it this house really did 9 change shape . There is a different 10 bulk and different mass and 11 certainly size and different shadow 12 so my comment is fairly simple it ' 13 seems to me that I would imagine in 14 terms of the spirit which is being 15 discussed up to now the law on 16 variances I imagine is there to 17 provide some kind of public 18 discussion should somebody wish to 19 do something that ' s going to change 20 the shape of the house or the form 21 of the house and therefore its 22 impact on its neighbors so it seems 23 to me that something went awry here . 24 The best form of resolving it I 25 don ' t know but it is my perception Proceedings 66 1 just as a member of this community 2 that I would like to feel that we 3 and all of us are protected from 4 such surprises by a variance hearing 5 and the law behind it . That ' s all I 6 have to say . 7 THE CHAIRMAN : Thank you . 8 Yes , Mr . Null . 9 MR . NULL : I just like to as 10 a point of information under the 11 Town Zoning Code a new building can 12 be built on a vacant lot that fully 13 conforms with the Zoning Ordinance 14 without any notice to anybody except 15 for the Building Permit being 16 issued . There is no requirement 17 unless you don ' t conform with the 18 Zoning Code to come before this 19 Board . I believe that ' s accurate . 20 Obviously subject to your 21 modification but I am not sure if 22 the public understands that the mere 23 change in some element of the house 24 doesn ' t necessitate a variance . It 25 merely necessitates a Building Proceedings 67 1 Permit in most instances and only a 2 zoning variance would be necessary 3 if there was some provision of the 4 code specifically that needed to be 5 varied . 6 THE CHAIRMAN : Thank you . 7 MS . SUSSMAN : I suppose I 8 don ' t have to respond further to 9 that but to say that obviously it 10 must come before this Board if 11 there ' s a nonconformity such as the 12 nonconformity that ' s presented by 13 this application . 14 THE CHAIRMAN : Thank you . 15 Gentleman in the back . 16 MR. GOULD : Jan Gould , 11 17 Hawthorne Road . I am an architect 18 in the Town . Architecturally 19 speaking I am an architect . I have 20 had a lot of work in the Town , in 21 the neighborhood and any surrounding 22 towns any time I ever had come up 23 before many projects that was a 24 non-conforming lot to start with 25 that came so close to a lot line . I Proceedings 68 1 always had to go for a variance 2 hearing as that ' s the first thing 3 that we ever tell a client . If you 4 have a nonconforming lot you are 5 going to have to go for a variance 6 hearing . It ' s hard to believe that 7 this project didn ' t require one but 8 I think that the issue that we are 9 dealing with should it have required 10 one to reach this point . When you 11 do have a project like this the only 12 way that your neighbors can have a 13 voice in what ' s happening on your 14 project is through the process of a 15 variance hearing . That ' s really all 16 I had to say . 17 THE CHAIRMAN : Yes , sir . 18 MR . NULL : It is not 19 necessarily true when you have a 20 nonconforming lot you need a 21 variance for a modification of the 22 house . It is just not the way the 23 code reads and while it might be 24 preferable to some to have a public 25 forum and discuss any change to any Proceedings 69 1 adjacent property or any property in 2 the neighborhood the Zoning Code 3 doesn ' t require such a public forum . 4 In fact I believe many people who 5 own homes that try to make 6 modification with the Zoning Code as 7 we submitted we did and the Motzkins 8 submitted we didn ' t do we wouldn ' t 9 want to have the public forum if you 10 fully conformed with the Zoning Code 11 it is obviously a lengthy process 12 and a difficult process so the 13 Zoning Code doesn ' t require such a 14 public forum even if you merely 15 because you have a nonconforming 16 lot . 17 MR . WEXLER : Point of 18 information , we are one of the few 19 communities , small communities that 20 does not have a Architectural Board 21 of Review that addresses residential 22 structure . Most communities small 23 in Westchester have an Architectural 24 Board of Review that every building 25 application for a permit must go Proceedings 70 1 through the Architectural Board of 2 Review . That is a public forum . It 3 is the case of variances that come 4 to our Board . 5 Unfortunately , in this Town 6 this case if it did require a 7 variance or determined it required a 8 variance it would go through another 9 Board such as Architectural Board of 10 Review. If the Town law is set up 11 that the Architectural Board of 12 Review will review all Building 13 Permit applications . 14 MR . NULL : I agree with that . 15 I know another number of 16 municipalities that don ' t have an 17 Architectural Board of Review . 18 MR . WEXLER : Don ' t say you 19 don ' t have to . There is a forum . 20 It ' s not in this Town . 21 MR . NULL : This Town is what 22 I am talking about . I am not 23 looking to present an argument . I 24 don ' t think I want to take up this 25 Board ' s time nor that you want me Proceedings 71 1 to . It happens though the Town 2 Board in its wisdom didn ' t create a 3 Board of Architectural Review and it 4 may be that there are some people 5 that will challenge that but it 6 happens that here really by having a 7 nonconforming lot or nonconforming 8 building that conforms the Zoning 9 Code , it did not require an 10 Architectural Board of Review , it 11 did not require a public forum 12 unless you have got a variance 13 situation . There ' s not site plan 14 approval either in this Town for a 15 single family residence . I think 16 it ' s important for the audience to 17 understand that . There is nothing 18 that ' s been-- We haven ' t sought to 19 circumvent any necessary process in 20 what we have done . We went and 21 applied for the necessary Building 22 Permit . We received the necessary 23 Building Permit . We built in 24 accordance with that permit and yet 25 we are here in any event and merely Proceedings 72 1 by the fact that we built it doesn ' t 2 suggest that we should have come 3 before the Zoning Board because 4 we ' ve a nonconforming lot and I 5 think there ' s some people that might 6 be under the mistaken impression 7 because we ' ve a nonconforming lot or 8 because we have a nonconforming side 9 yard .that we thereby necessarily had 10 to come before this Board before 11 everything and everything and that ' s 12 clearly not the case . 13 THE CHAIRMAN : Yes , sir . 14 MR . HOFFMANN : Paul Hoffmann , 15 69 Carleon Avenue . The gentleman in 16 the back had a good point . There is 17 a forum that is called a 18 neighborhood and most neighbors talk 19 to their neighbors and say hey , I 20 like to do this with my house . 21 Before I go any further do you have 22 any objections to it . That was 23 presented to all of our neighbors 24 who we thought it would be impacted 25 including the Motzkin/Blum ' s . Proceedings 73 1 They chose to remain silent 2 the entire time going to permitting 3 going through the whole examination 4 board , going through the Building 5 Department . They did nothing until 6 57 days after the permit was issued 7 and work was done . All the 8 neighbors were told about it and 9 Mrs . Graham who lived in the 10 Motzkins house before them had no 11 problem with it forever . She was a 12 judge and a president of the Garden 13 Club of Westchester and grew 57 14 Daffodils , variety of Daffodils on 15 that property . If the Blums can ' t 16 grow a little 10 X 8 patch of 17 flowers it is not because of the 18 soil of the property or the sun so 19 yes , there is a forum and it 20 shouldn ' t be here . It should be 21 across the fence with the neighbors . 22 We missed that point . 23 THE CHAIRMAN : I will hope 24 that your comments would be positive 25 in spirit . Proceedings 74 1 MS . BLUM : Yes , I very much 2 would have welcomed as would my 3 husband an opportunity to be-- I 4 would have welcomed being asked how 5 you felt about . That was not what 6 occurred . As we reviewed last time 7 what happened was in early November 8 over three months after the plans 9 were filed and approvals were 10 obtained unofficially we were told 11 this was what Mr . Hoffmann intended 12 to do . We were not asked how we 13 felt about it . Obviously if there 14 had been an opportunity with such 15 discussion we would have welcomed it 16 gladly and while I am sure he did 17 notify certain people as Jane Morris 18 just said she is one of the people 19 also most impacted by the project 20 and she was not inclined . 21 MR . NULL : I don ' t want to 22 get back-- 23 THE CHAIRMAN : Then don ' t . 24 MR . NULL : But it is 25 important . Proceedings 75 1 THE CHAIRMAN : May I ask just 2 in the spirit of time there ' s still 3 another case after this that we may 4 get to or not . What I like to do is 5 conclude the public comments and 6 then do you have a pen take notes 7 and if you want to respond to 8 anything I will certainly give you 9 the opportunity . 10 MR . NULL : One short point if 11 I may? 12 THE CHAIRMAN : This is it . 13 MR . NULL : There was a record 14 of an August 30 , 1995 meeting , 15 August 31 , 1995 meeting at which Mr . 16 Motzkin and Ms . Blum went to the 17 Building Department to review the 18 plans that then be filed 15 days 19 prior with regard to this and as you 20 know from the prior meeting my 21 client had said they showed the 22 plans before . I think all of that 23 is irrelevant . 24 THE CHAIRMAN : We really 25 covered that ground at the last Proceedings 76 1 meeting . Any other issue? I ask 2 you please be patient . Is there 3 somebody in the back with their hand 4 up? 5 MS . BLUM: We were away on 6 vacation that day . 7 THE CHAIRMAN : Gentleman in 8 the back . 9 MR . FELDMAN : I am not 10 directly affected by this . I am an 11 architect also . I spoke the last 12 time . To reiterate about the point '. � 13 I spoke about last time the first 14 issue has been said before tonight 15 there ' s a variance . This is in 16 addition to a variance that was 17 expanded . There was great 18 specificity to the original variance 19 limited to two stories . Very clear 20 in my practice that , pardon me , as 21 for the plans and specs filed which 22 was a two story renovation . In my 23 business if I resume to add to any 24 previously built variance structure 25 I will always assume there is going Proceedings 77 1 to be a variance . 2 Second , there is discussion 3 about the definition of this being a 4 2 1/ 2 story project . It has now 5 become a three story by definition 6 of story by consulting the zoning or 7 building code as to what is a story 8 so therefore that ' s another point 9 that hasn ' t nearly been touched on 10 tonight but I think it is a valid 11 point . 12 Third thing is , I said last 13 time there ' s obviously the Hoffmanns 14 didn ' t do anything wrong. They 15 applied . They went through the 16 channels and they are stuck in this 17 situation . If there was a mistake 18 made I said last time if it is any 19 mistake it is up to this Board to 20 evaluate . It shouldn ' t be stuck on 21 Jake or anyone else to have all this 22 pressure on this kind of decision so 23 issue this in total fairness I think 24 the Board should be involved in 25 rulingness and make a decision in Proceedings 78 1 that regard . Thank you . 2 MS . LEFF (PH) : Patricia 3 Leff (ph) . We put on a deck eight 4 years ago and I find it very 5 difficult to believe that Mr . 6 Jakubowski after all the headaches 7 he gave us at that time . I remember 8 to the point I had contractions in 9 his office but I find it very 10 difficult that he wouldn' t have gone 11 over this with a fine tooth comb . I 12 am true on the outskirts of being on 13 Palmer Avenue . We feel a little bit 14 on the outskirts but I did walk by . 15 I did look at it . I don ' t really 16 understand the fuss . I think it is 17 very sad . It is dividing the 18 neighborhood . I am kind of glad I 19 am on Palmer Avenue but I find it 20 very sad ' but I also feel knowing 21 what we went through for a deck that 22 I really think that I can ' t imagine 23 that this man would have overlooked 24 anything . Thank you . 25 THE CHAIRMAN : You ' re Proceedings 79 1 welcome . Yes . 2 MR. McKEON : My name is Bob 3 McKeon . I live at Two Byron Lane . 4 About a year ago a house was 5 completed on our street . That was 6 built brand new building lot . It 7 was vacant and on the street of 8 Byron Lane which some of you may or 9 may not be familiar with . There is 10 is a lot of old homes , ' 60 ' s , ' 50 ' s . 11 It ' s a modern house , big windows , 12 wood , a decorative fence on it which 13 is whole another topic . This house 14 was built and there was no notice 15 given to any of the neighbors 16 because it conforms to all the codes 17 and variances and all and as a 18 person who lives on the street do I 19 like having that house there , no , I 20 don ' t . It doesn ' t appeal to us 21 visually and many people have come 22 by and said how did you ever let 23 that thing built on your street but 24 the bottom line is being the people 25 who bought that lot had a right to Proceedings 80 1 build a house they wanted to have 2 built in it and it conforms with the 3 law that ' s been set down and this is 4 what the Hoffmanns decided to do . 5 We 've driven by that house 6 and it conforms with the rest of the 7 facade and the structure of the 8 neighborhood and if anything it adds 9 value to the rest of the 10 neighborhood increasing the value of 11 their home and therego the rest of 12 the neighborhood . I think you have 13 to sit down and make a determination 14 of also where do you draw the line 15 about where people are allowed to 16 add to the value of their property 17 and their own homes and you know 18 whatever square footage this or that 19 makes the difference and like I said 20 to make an analogy to each 21 individual who builds a home on a 22 building lot and allowed to and 23 permitted to and God Bless them , 24 that ' s their home . I hope they 25 enjoy their home . It is what Proceedings 81 1 everybody expected , no . It is their 2 right and this home and these rules 3 that are set forth may not be the 4 rules that other people decide that 5 they like but it is the rules that 6 you live by and they have the right 7 to exercise the use of their 8 property and I think sometimes the 9 decision of this Board is to have to 10 protect not only some , you know , not 11 a situation of a monstrosity being 12 built that overhang because of lifts 13 and bulk and things like that but 14 what is fair and what they try to 15 conform to the existing look of 16 their home and it is not that big of 17 and I am sure people have visited 18 this site and driving by it which I 19 recently was in front of the Board 20 about people driving by and looking 21 at things . You can drive by the 22 Hoffmanns home and I would defy 23 anyone who drove by there a year ago 24 to drive by now and pick out and say 25 oh yes , they just built a larger Proceedings 82 1 apartment on top of their garage or 2 whatever . That wouldn' t happen . 3 Thank you . 4 THE CHAIRMAN : Thank you . 5 Yes , sir . 6 MR . ASEF (PH) : I am Ernie 7 Asef (ph) . I live diagonally across 8 from both the Blum/Motzkin and the 9 Hoffmanns . I guess I am confused by 10 this process , is this a variance 11 hearing now? That ' s what it sounds 12 like to me . This is just 13 information for you to make a 14 decision because we are all 15 expressing , everybody is expressing 16 opinions about how it looks and 17 everything . Is that really 18 relevant? 19 THE CHAIRMAN : There ' s an 20 application before us that is in the 21 public record that was probably 22 mailed to you and I won ' t re-read it 23 but particular application I believe 24 is that we are hearing and as with 25 every application that this Board Proceedings 83 1 hears we allow a portion of time for 2 the public to make any comments they 3 have about the application before us 4 and that ' s where we are if that 5 answers your question . 6 MR . KELLEHER : This gentleman 7 doesn ' t understand what is going on 8 here and I think there ' s a great of 9 the audience out there that probably 10 doesn ' t understand what is going on 11 here because there has been so much 12 verbiage and I think that you might 13 rap it all up and explain to 14 everybody what is going on here . 15 As I understand Mr . Hoffmann 16 wanted to build something and he 17 came to the Building Department and 18 he asked for a Building Permit and 19 he was granted a Building Permit . 20 After the Building Permit was 21 granted and the construction was 22 underway another party asked this 23 Board to as it is stated reverse the 24 determination of the Building 25 Inspector for having granted the Proceedings 84 1 Building Permit in the first place . 2 I think that sums it up . 3 MR . KIRKPATRICK : That ' s one 4 of the powers . One thing that might 5 need to be added to that is one of 6 the powers of this Board this Board 7 has the power to interpret the 8 ordinance and to reverse or override 9 the decision of the Building 10 Inspector . It is being asked to do 11 that . There ' s also another 12 application on tonight which we will 13 hear many of the same things which 14 the Hoffmanns have cited . If by 15 chance this Board does not agree 16 with the Building Inspector but does 17 agree with Motzkin/Blum that the 18 ordinance was not correctly 19 interpreted and the Board chooses to 20 override the Building Inspector then 21 the Hoffmanns are requesting that a 22 variance be granted so we will 23 really be considering all of those 24 things but procedurally at this 25 point we are only in the first ( ; Proceedings 85 1 hearing which is on the application 2 for an interpretation . 3 MR . ASEF (PH) : That ' s why I 4 asked the question . It is still 5 • relevant what everybody ' s personal 6 opinion is of the addition . Is it 7 your interpretation of the rules . 8 Maybe it is relevant to the variance 9 if we get there but it doesn ' t seem 10 relevant . 11 THE CHAIRMAN : Do you have 12 another appointment later . Stick 13 around . 14 MR . WEXLER : It ' s only on the 15 assumptions . 16 THE CHAIRMAN : Is that it? 17 MR . ASEF (PH) : Yes , thank 18 you . 19 MS . BLUM : Just to clarify 20 the point of chronology we did go to 21 the Building Inspector as soon as we 22 heard about it prior to approval and 23 prior to issuance of a permit . We 24 were not informed of the appeal 25 process until over a month later . Proceedings 86 1 THE CHAIRMAN : That ' s really 2 only chronology . 3 MS . BLUM: Just the statement 4 was made that we did it subsequent 5 to and that wasn ' t actually what 6 what happened . 7 THE CHAIRMAN : Is there any 8 other questions from the public , 9 comments? If there are no other 10 questions I would like to close the 11 public hearing . Are there any other 12 comments from Board members? 13 MR . WEXLER : I have a 14 question to the counsel since there 15 are four members voting on this just 16 if there is a 2-2 vote what happens? 17 MR . KIRKPATRICK : Interesting 18 question? 19 MR . WEXLER: What does that 20 mean . 21 MR . KIRKPATRICK : This Board 22 has failed to override the Building 23 Inspector and his decision stands . 24 MR . WEXLER : I am just 25 wondering . Proceedings 87 1 MR . KIRKPATRICK : The Board 2 has the power to override the 3 Building Inspector but has to do so 4 over a vote . 5 THE CHAIRMAN : Non-action . 6 MR. KIRKPATRICK : Not a 7 non-action . The Board has failed to 8 override . 9 MR. WEXLER: May I make a 10 suggestion , we are going to go to a 11 vote at this point . 12 THE CHAIRMAN: Sure . 13 MR . KIRKPATRICK : I will like 14 if this is an appropriate time to 15 make sure that the record is 16 complete with regard , painfully , to 17 make sure the record is complete 18 with regard to all the sections of 19 the ordinance that are in question . 20 They have all been discussed . I 21 would like to know that the Board 22 members all feel that they 23 understand what each of the sections 24 are and that there has been adequate 25 discussion of them to make a Proceedings 88 1 decision . 2 MR . WEXLER : May I make a 3 suggestion , of the 14 parts of the 4 code that we are to vote on that we 5 address 89-71 . A in conjunction with 6 89-32 . A first and depending upon 7 that vote proceed to the others . 8 The reason I ' m saying that is the 9 essence of the question here . If we 10 vote in the affirmative for the 11 applicant I think the applicant 12 would hopefully withdraw all the 13 others because that ' s irrelevant . 14 It might be a finding to the Board . 15 THE CHAIRMAN : I don ' t know 16 that the application the applicant 17 is asking for interpretation of all 18 those sections but just merely a 19 determination to overrule or reverse 20 the permit . 21 MR . KIRKPATRICK : We can ask 22 for a clarification? Do we want a 23 ruling on every one of those 24 sections? 25 MS . BLUM : No , I think why we Proceedings 89 1 applied is that we felt a variance 2 should have been required in this 3 case . That ' s the essence of what we 4 are saying and I think that ' s what 5 we are looking to you to determine . 6 Our objection was that a permit was 7 issued without the usual variance 8 that would have been required of 9 nonconforming situation so that ' s 10 really what we are looking for . 11 MR . KIRKPATRICK : Could we , I 12 believe there ' s an issue that Jack 13 had brought up that there ' s now a 14 front yard variance required . 15 MR . JAKUBOWSKI : Yes . 16 MR . KIRKPATRICK : There ' s a 17 question as to whether there should 18 have been a side yard variance , am I 19 correct? 20 MS . BLUM : That ' s correct . 21 That ' s the two critical issues . 22 MR . KIRKPATRICK : What we 23 need to know you as the applicant 24 will amend your application to 25 confine it to those two issues? Proceedings 90 1 MS . BLUM: The side yard and 2 the front yard? 3 MR. KIRKPATRICK : As opposed 4 to this Board leading to make a 5 determination on every section 6 that ' s listed on the application . 7 MR . WEXLER: Can I add 8 something to that , why don ' t we take 9 that issue first and if it all have 10 the applicant after that make the 11 determination . 12 MR . KIRKPATRICK : My only 13 concern Arthur , is that there is a 14 lot and some of it is just paperwork 15 and some of it just came in tonight 16 and unless the Board really wanted 17 to make a decision tonight I would 18 be more comfortable if there was 19 time to review all the paperwork . 20 THE CHAIRMAN : Is this 21 paperwork in reference to this 22 application or the next application? 23 UNIDENTIFIED SPEAKER: 24 •Everything that I read was in 25 relation to if the applicant is Proceedings 91 1 granted a reversal . We will move 2 onto the next point which was the 3 paper that was given to us unless I 4 didn ' t read everything . You can 5 clue me in . 6 MR . KIRKPATRICK : Honestly it 7 has not come to me . 8 MR . WEXLER: It seems to be 9 part of the next application . 10 MS . RECIO : The application 11 assigned or cases assigned because 12 they interrelate some of the letters 13 basically re : 69 Carleon Avenue , 14 not that it matters because the 15 whole thing can be fundamentally 16 melted . 17 MR . MOTZKIN : To clarify your 18 question , John , we are prepared to 19 accept the requirement to overturn 20 the Building Inspector ' s 21 determination on the basis of a 22 front and side yard variance . 23 MR . KIRKPATRICK : So the 24 issue is just is a variance of side 25 yard and front yard needed for this Proceedings 92 1 construction? 2 MR. MOTZKIN : Yes . 3 MR . NULL : Can I just ask a 4 point of clarification , I believe I 5 understood that the front yard 6 variance that Mr . Jakubowski was 7 talking about involved initially the 8 1979 construction not the decision 9 related to this Building Permit . It 10 makes a difference on how this 11 application is treated . The 12 variance is initially required with 13 regard to the roof replacement as 14 contrasted with the ' 79 addition to 15 what was shown on the plans . 16 MR. JAKUBOWSKI : I would say 17 off hand that unfortunately the 18 permit for the roof well , I would 19 say, it probably would not have 20 required a variance . --inaudible-- 21 Had I known , in fact , that 22 the 1979 variance the plans were not 23 exactly followed and that they did 24 have an intrusion on the front yard 25 of 1 . 6 , 1 . 5 feet I think is the 1 Proceedings 93 1 actual addition intrusion I probably 2 would have had to send the applicant 3 before they even come for the permit 4 in hand . I don ' t believe that had 5 that been granted in 1979 that I 6 would have looked at the front yard 7 intrusion on the basis of 8 nonconformity . 9 MS . SUSSMAN : I would like to 10 make a point that new construction 11 increases that in the same manner as 12 the side yard increase of the 13 intrusion and the construction 14 increased it on the' front as well so 15 I think Mr . Jakubowski just , you 16 know, has stated his position which 17 conforms with the position you took 18 initially on variance that what 19 pre-existed was extended and that is 20 specifically the point that we make 21 issue of . 22 MR . NULL : If I may I was 23 just told by Mr . Amicone , the 24 engineer , that that space above what 25 we characterize as the architectural Proceedings 94 1 projection is not floor space . It 2 is eaves space . It is not habitable 3 space . 4 MR . JAKUBOWSKI : I don ' t 5 think that that ' s Mr . Amicone ' s 6 decision to make . It is space and 7 we are going to call it space as I 8 said before . Let ' s just point it 9 out for you it is not the small 10 rectangular area in the front . Had 11 it been permitted under the original 12 variance then the small area above 13 it would have been allowed as no 14 extension of the existing true 15 conforming addition but since this 16 area now has to have a variance in 17 order to legalize something that was 18 not part of the normal approval 19 therefore it stands that the area 20 directly above it it is in the same 21 category . 22 MR . NULL : This area shown in 23 the original-- 24 MR . JAKUBOWSKI : No . 25 MR . NULL : The roof overhang? Proceedings 95 1 MR. HOFFMANN : The existing 2 house was built in 1923 . This 3 matches exactly like the one next 4 door to it which was 1979 . It was 5 nonconforming and then a 6 nonconforming entity and we had to 7 seek for this new addition and these 8 two matched up . It was done in ' 23 . 9 I don ' t understand that . 10 MR. KIRKPATRICK : One needs a 11 variance to increase the 12 nonconformity . 13 MS . SUSSMAN : As we ' ve been 14 saying all evening . 15 MR . KIRKPATRICK : My 16 suggestion Arthur I think you 17 brought it up is that we not close 18 the hearing but that you leave it 19 open that the two parties have the 20 opportunity to examine all of the 21 paperwork that has been turned in 22 just to make sure that there are no 23 surprises in the record as to the 24 point . 25 MR . WEXLER : Why can we take Proceedings 96 1 a little recess to revisit it . If 2 this one goes on another night it 3 will be painful and if we go beyond 4 this to the next case that ' s even 5 more painful . 6 THE CHAIRMAN : I will like to 7 move on . 8 MR . WEXLER : Why don ' t we 9 have a recess . 10 MR . KIRKPATRICK : If your 11 Board wishes . 12 MR . WEXLER : To review any 13 kind of papers that were thrown in Alp 14 front of us . 15 THE CHAIRMAN : Why don ' t we 16 take a 10 minute recess and 17 reconvene at ten minutes of 10 : 00 . 18 (Whereupon , a recess was 19 taken by all parties ) 20 THE CHAIRMAN : We will like 21 to continue the hearing on this 22 application . Counsel , I think Board 23 members have had a chance to read 24 the letters that were presented 25 tonight and I would like to move C Proceedings 97 1 forward with trying to come to some 2 conclusion on the application and I 3 think also I don ' t know that we need 4 adverse opinion that we need to 5 address each and every one of the 6 sections of the code but merely 7 respond to the question of the 8 application which is appeal to the 9 Board to reverse the determination 10 of the Building Inspector period . 11 MR . KIRKPATRICK : It is my 12 understanding that the applicant has 13 simplified the application to say 14 that they are appealing the 15 determination of the Building 16 Inspector , that no side yard 17 variance which would be 18 89-32B ( 2 ) ( a ) ( b) and no front yard 19 which would be B ( 1 ) , right? 20 MS . SUSSMAN : Yes . 21 MR . KIRKPATRICK : I believe 22 that ' s it . 23 MR . NULL : Can I ask for a 24 point of clarification? 25 THE CHAIRMAN : Yes , just one Proceedings 98 1 second . Yes , Mr . Null . 2 MR . NULL : Mr . Jakubowski 3 commented about the front yard 4 encroachment on the 1979 addition 5 and I just wanted to point a 6 clarification as to how that 7 affected if at all the roof 8 replacement Building Permit . Mr . 9 Jakubowski , this is the line , 10 approximate line of the 1979 roof 11 that was approved . Would this 12 triangular space have been , ever 13 required a variance here . Maybe you 14 can clarify how this space here 15 which you said now requires a 16 variance relates to this space above 17 this part . 18 MR . JAKUBOWSKI : Triangular 19 space . Small triangular space would 20 have required the variance 21 requirement because it ' s the roof 22 directly over the wall so if they 23 pulled the wall back and it was 24 merely an overhang no it would not 25 require a variance on 89-44 . Proceedings 99 (:) 1 MR . NUL L : Now, does that 2 suggest then that a variance would 3 be needed for a roof replacement 4 that ' s here . 5 MR . JAKUBOWSKI : If the 6 Zoning Board is going in the next 7 stage determine that the variance 3 should have been obtained for the 9 front projection on the second level 10 and that there has been there "X" 11 number of years and decided and if 12 they decided that they wanted to 13 grant that variance making it now 14 legal status conforming than my 15 determination in the permit 16 situation would be that the two feet 17 above it on new roof structure would 18 have been allowed . 19 MR . NULL : Just so had Mr . 20 Hoffmann come to you on a Building 21 Permit application and been advised 22 that this area from this piece down 23 to hear would require a variance and 24 had that variance been obtained and 25 they then come to you for the roof Proceedings 100 111 1 replacement that it was , it is 2 really the subject of this 3 interpretation would you have 4 changed your position so to speak on 5 learning that this encroachment 6 exists such that you would have 7 required a variance application for 8 the roof replacement? 9 MR . JAKUBOWSKI : If the 10 encroachment was legal by previous 11 variance it wouldn ' t have changed my 12 position . 13 MR. NULL : Is it only because 14 of the encroachment from 1979 that 15 you would suggest a variance . You 16 are not suggesting a variance is 17 needed for the roof replacement . 18 MR . JAKUBOWSKI : I believe I 19 corrected the variance . I said that 20 I am suggesting in the letter that I 21 sent to Motzkin/Blum because of the 22 1979 addition requires a variance 23 for front yard intrusion that was 24 never covered on the 1979 variance . 25 MR . NULL : The variance would Proceedings 4:) 101 1 not be needed for the roof 2 replacement . 3 MR . JAKUBOWSKI : The area 4 above the second floor area the 5 triangular area would have been 6 permitted . 7 MS . SUSSMAN : Point of 8 clarification on that that is 9 however just related to the issue 10 which we are raising that as in the 11 side yard that would have required a 12 variance in this round . :) 13 MR . JAKUBOWSKI : I believe 14 that ' s what you amended . 15 MS . SUSSMAN : Even had it 16 been approved in ' 79 . 17 MR . JAKUBOWSKI : That ' s what 18 your amended question is . 19 MR . WEXLER : Now go to a 20 motion . 21 THE CHAIRMAN : Yes . 22 MR . KIRKPATRICK : Close the 23 hearing . 24 THE CHAIRMAN : I said I did 25 close the public hearing before . Proceedings O 102 1 MR . KIRKPATRICK : But we were 2 still talking . 3 THE CHAIRMAN : We will do so 4 now . No other comments from the 5 public on the application . I will 6 ask we do not need a motion . 7 Under the new Paragraph 17 8 this is clearly a Type II action . I 9 think it is probably convenient that 10 the resolution to continue to note 11 that typical area variance 12 applications are Type II action so I 13 think we can stay with the same 14 language . Type II action under 15 SEQRA requiring no further action . 16 THE CHAIRMAN : We will make 17 that motion so second . 18 MR . WEXLER : Second . 19 THE CHAIRMAN : All those in 20 favor . 21 MEMBERS OF THE BOARD : Aye . 22 MR . WEXLER : I would like to 23 make a motion on case number 2213 , 24 Appeal to the Town of Mamaroneck 25 Zoning Board of Appeals by Robert Proceedings 103 1 Motzkin and Diane Blum to reverse 2 the determination of the Building 3 Inspector for Permit No . 13228 4 issued on November 17 , 1995 for an 5 addition to the residence of Michele 6 and Paul Hoffmann for a residence in 7 an R-15 Zone District on the 8 premises located at 69 Carleon 9 Avenue , known on the Tax Assessment 10 Map of Town of Mamaroneck as Block 11 404 Lot 613 , as amended on the 12 grounds that the premises are not in 13 compliance and need a side yard 14 variance pursuant to Sections 15 89-32 . B ( 1 ) 89-32 . B ( 2 ) (a) and (b) ; 16 and a front yard variance in 17 compliance with Section 89-32 . B ( 1 ) 18 be granted? 19 THE CHAIRMAN : Findings on 20 this? 21 MR . WEXLER : Yes , I would 22 like to put findings that the permit 23 that was issued was issued for a 24 construction of a modification for 25 the second floor and roof structure Proceedings 104 1 of an existing structure that was 2 granted a variance in 1979 with a 3 side lot line totaling of 5 . 5 . lower 4 the required side yard setback of a 5 minimum of 10 feet and a side yard 6 variance I will have to calculate 7 because it is not specified , give me 8 a moment , not 30 feet required but 9 something else and you got the 10 variance . 11 MR. NULL : Approximately 5 . 5 . 12 MR . MOTZKIN : The amended 13 survey shows 5 . 3 feet . 14 MS . BLUM : We don ' t know 15 which is correct . 16 MR . WEXLER : Would you accept 17 5 . 5 because 12 feet with a side lot 18 sum of the two side lots being 12 19 feet in lieu of the 30 feet required 20 and that the extent that this 21 addition exceeds the variance 22 granted in ' 79 that a variance would 23 be required to enlarge the 1979 24 addition to the existing structure . 25 THE CHAIRMAN : Would you want Proceedings 105 1 to also make reference . 2 MR . WEXLER : The variance 3 granted in 1979 states that the 4 variance is granted and should 5 observe the strict conformance with 6 plans for this application and in 7 the past every , at least in my 8 recollection , every case that has 9 come to us that a variance , an 10 addition to a variance or an 11 addition to a side , a non-conforming 12 side lot line which was brought to 13 us as a variance not as an accepted 14 side lot line . 15 THE CHAIRMAN : Do you want to 16 add findings with regard to the 17 front setback? 18 MR . WEXLER : Wouldn ' t that be 19 covered under the section that I 20 mentioned? 21 MR . KIRKPATRICK : I think we 22 could potentially say Jake and 23 Arthur that as pointed out by the 24 Building Inspector that new survey 25 information indicates that the Proceedings 106 1 building as constructed is within 2 the front yard setback and a 3 variance is therefore required of 4 front yard . 5 MR . WEXLER : Where? I think 6 I can put it in different words , the 7 survey that was present shows that 8 correct me if I am wrong , the 9 addition that was built in ' 79 shows 10 that the front doesn ' t go in and 11 that the front setback is less than 12 what was required on the 13 application . 14 THE CHAIRMAN : Any discussion 15 from the Board members? 16 MR . KELLEHER : I would be 17 very much in favor of having that 18 latter findings motion if that would 19 be the only basis . 20 MR . WEXLER : Wouldn ' t it be 21 in the motion? 22 MR . KELLEHER : Concerning the 23 front yard problem and not having 24 construction built in accord with 25 the variance granted in 1979 I think Proceedings 107 1 that ' s very important to put in 2 there . 3 MR . WEXLER : We just did put 4 it . 5 THE CHAIRMAN : Any other 6 suggestions? 7 MR . WEXLER : No other 8 findings . 9 MR . KIRKPATRICK : I believe 10 that covers the central point . 11 THE CHAIRMAN : Is there a 12 second? 13 MR . KELLEHER : Second . 14 THE CHAIRMAN : All those in 15 favor . 16 BOARD MEMBERS : Aye . 17 THE CHAIRMAN : Motion 18 carried . 19 THE CHAIRMAN : Marguerite , 20 would you read application number 21 five . 22 MS . ROMA : Application of 23 Michele and Paul Hoffmann requesting 24 a variance to replace a flat 25 mansarded roof with a gable roof , Proceedings 108 1 the permit for which has been 2 contested in application #3 , Case 3 2213 above ; should such application 4 be granted , this applicant will be 5 required to seek a variance for all 6 or part of the Zoning Code Sections 7 listed in Case #2213 for a residence 8 in an R-15 Zone District on the 9 premises located at 69 Carleon 10 Avenue and known on the Tax 11 Assessment Map of the Town of 12 Mamaroneck as Block 404 Lot 613 . 13 THE CHAIRMAN : Mr . Motzkin , 14 did you have an exhibit? Would you 15 give that to the secretary of the 16 Board . 17 MR . WEXLER : At the end of 18 the evening . 19 THE CHAIRMAN : Who is 20 representing the Hoffmanns? Mr . 21 Null . 22 MR . NULL : Good evening . 23 THE CHAIRMAN : Please state 24 your name and address for the 25 record . Proceedings 109 1 MR . NULL : Mr . Chairman , my 2 name is William Null . I am a member 3 of the firm Cuddy and Feder and I am 4 here tonight representing Mr . and 5 Mrs . Hoffmann in connection with 6 this application for an area 7 variance to legalize the 8 substantially completed roof 9 replacement that was constructed at 10 their home on 69 Carleon Avenue . I 11 know you are relatively familiar 12 with that site at this point . 13 THE CHAIRMAN : Just to stop 14 you just for one second . I promise 15 not to do it more than once . I just 16 want to be absolutely sure I have so 17 much paper , is this part of your 18 original file? 19 MR . WEXLER : This is his 20 original file . 21 THE CHAIRMAN : Along with a 22 letter dated today? 23 MR . NULL : And the enclosures 24 there with . There was a letter from 25 Margaret and there ' s a letter from Proceedings 110 1 Philip Amicone . There is also 2 photographs that my client provided 3 of the character of the neighborhood 4 together with the tax map and there 5 were about fifty signatures in 6 support of the application by 7 residents . 8 THE CHAIRMAN : Thank you . 9 Please read . 10 MR . NULL : This application 11 seeks specifically to obtain a 12 variance with regard to the side 13 yard encroachment and the front yard 14 encroachment affecting this roof 15 structure and addition . I believe 16 that ' s correct . It has been noticed 17 in that way to legalize what exists 18 and what exists includes the area 19 that we are just discussing which 20 Mr . Jakubowski had referenced today . 21 In fact this letter had acknowledged 22 that the application had been 23 previously submitted already 24 encompassed a request for this 25 relief . Proceedings 111 1 The history of this is 2 obviously fairly unfortunate . As 3 far as it goes I think that Mr . 4 Wexler had said it pretty clear with 5 regard to had there been a Board of 6 Architectural Review it may be that 7 this whole process could have been 8 handled in a different manner than 9 it was but be that as it may you 10 decided to reverse Mr . Jakubowski ' s 11 decision and I focus on the area of 12 variance itself . 13 I am not looking to begin to 14 be adversarial here with Mr . Motzkin 15 and Ms . Blum but my clients had 16 advised me that in June of 1995 they 17 they discussed with Mr . Motzkin and 18 Ms . Blum the proposed modification 19 to their roof and in August of 1995 20 the Hoffmanns submitted an 21 application for a Building Permit to 22 enable them to replace what was then 23 a leaking flat mansard roof that had 24 structural difficulties as indicated 25 in the letter that I submitted Proceedings 112 1 today . 2 Mr . Amicone is here , is a 3 licensed engineer and was involved 4 in design of the structural 5 replacement of that roof . The roof 6 had on top of it commercial grade 7 air conditioning units that added 8 additional weight to that roof . The 9 roof that had previously existed the 10 mansard roof is not supported by the 11 exterior structural walls of the 12 second story and there was therefore 13 a negative structural impact by 14 reason of the deflection of that on 15 the roof and the second story that 16 was sought to be corrected by 17 designing a roof which rested upon 18 the exterior structural walls of the 19 building and as you know having 20 submitted the application in the 21 middle of August three months later 22 the Building Permit was issued and 23 construction commenced the following 24 day . 25 Unfortunately , by the time Proceedings 113 1 Mr . Motzkin and Ms . Blum advised the 2 Hoffmanns that they were challenging 3 the Building Permit in fact no 4 notice had been provided to them 5 previously that they were having 6 meetings with the Building 7 Department for serious questioning 8 of the issuance of that Building 9 Permit . 10 At that point in time the 11 structure was substantially 12 complete . The roof was on , the 13 stucco on the walls was finished , 14 the windows were installed , 15 electrical wiring was completed . In 16 fact there was fire underwriter ' s 17 certificate was issued based upon 18 work that had been completed as of 19 that date . The whole structural 20 roof replacement was for all intents 21 and purposes for zoning purposes 22 short of the Certificate of 23 Occupancy with regard to Building 24 Permit and closing in of the walls 25 it was completed and that brings us Proceedings 114 1 to sharp focus with regard to 2 certain equities that affect the 3 variance application . 4 As noted in our application 5 approximately $60 , 000 . 00 had been 6 spent at that point in the 7 construction of that roof 8 replacement and probably the best 9 thing for me to do at this point 10 would be to have Mr . Amicone to 11 describe what , if anything , might be 12 able to be done to modify that roof 13 to address the need for the variance 14 that ' s occurring . As you know there 15 is a trapezoidal area of the roof 16 replacement that ' s at issue here . 17 It is not the entire roof 18 replacement . The area that falls 19 within the required 10 foot side 20 yard setback and runs the 50 foot 21 length of the wall . It is not 22 beyond that . The rest of it is not 23 in question . 24 MR . WEXLER : I am not clear 25 on that for a moment because there Proceedings 115 1 are two parts of the side yard 2 requirement you have to meet . One , 3 is a minimum of 10 feet and one is 4 the sum of the two side yards have 5 to be equal to 30 feet . You have 6 6 . 5 feet on one side . Jake , you can 7 correct me if I am wrong? 8 MR . JAKUBOWSKI : I am not so 9 sure that that 32-B part of about 10 the total side yard would 11 necessarily apply in this situation 12 since the area if you want to count 111 13 the side yard , that area has been 14 altered and started at the western 15 side of the roof exists at the third 16 level and they really have 17 encroached on the total side yard . 18 The side yard of that space in 19 relation to the top of the house . 20 MR . WEXLER : Is this 21 consistent with Pat ' s determination? 22 MR . JAKUBOWSKI : Yes . We ' ve 23 variances in cases , in instances of 24 a rear yard addition where it has 25 been five or six feet off the Proceedings 116 1 property line where wherever 10 feet 2 is required of that addition is 20 3 or 30 feet away from the other 4 property line and total side yard in 5 that situation may have been far in 6 excess of that requirement . 7 MR . WEXLER : I am sorry . 8 MR . NULL : The area that we 9 are dealing with then is 10 approximately this measurement here 11 sits 6 ' 1 " so this dimension has 12 noted approximately 5 foot , 5 1/ 2 13 feet . I had it before . This is the 14 area here that we are dealing with . 15 The area that you just determined 16 was subject to a side yard variance . 17 Obviously the part in front it is 18 from this point above the garage up 19 to approximately here is the area 20 that ' s in the front that encroaches 21 by about 1 ' 6 " . There are two 22 different issues but the issue with 23 regard to this line here is a 24 question of how to support the roof 25 without resting on the structural Proceedings 117 1 exterior walls and for that I am 2 turning to an engineer who is more 3 qualified than I am to discuss it . 4 MR . AMICONE : The exterior , 5 those walls that support the 6 majority of the house in this case 7 the exterior walls of the house is a 8 structural wall . That ' s where all 9 of the weight of the roof would rest 10 and therefore you would translate it 11 down . What I have done in this 12 addition is previously a great deal 13 of the support for the previous roof 14 was resting on the floor and that 15 was causing a deflection and it was 16 causing water problems and 17 structurally not serving the purpose 18 intended of the serious problems . 19 In order to properly , first of all , 20 in order to eliminate that problem 21 required the removal of that roof . 22 That roof could not work as it was . 23 In order to , the most logical way to 24 structurally support this roof was 25 to support it on the exterior walls Proceedings 118 1 since those walls were designed to 2 do was to support the roof . That ' s 3 what I have done . I have designed 4 it so that it bears on the exterior 5 walls and interior bearing walls 6 that is in here and now to change 7 that and to move this portion that 8 was the subject of this Board ' s 9 determination a few minutes ago 10 would require removal of this roof 11 and they would have to do it again 12 because in order to now bear 4 1/ 2 13 feet and support the weight of 14 everything 4 1/ 2 feet into this 15 addition you would have to build a 16 structural element all the way down 17 to the footing to the ground where 18 there are none now inside the house . 19 We ' ve a structural beam that goes 20 across and then bears down on the 21 column onto this wall outside to 22 this point here . Both 1 / 3 23 approximately each from the front 24 and the rear that can no longer be 25 used that would have to be removed . Proceedings 119 1 MS . SUSSMAN : Excuse me , Mr . 2 Chairman I object . 3 THE CHAIRMAN : May I ask that 4 the applicant be permitted to 5 complete their presentation then we 6 will certainly have-- 7 MS . SUSSMAN : This is 8 non-consistent with the application 9 that was made before this Board . 10 THE CHAIRMAN : Can I ask you 11 to hold your comments . Thank you . 12 MR . AMICONE : My point is 13 that this would require that this 14 roof be removed or extraordinary 15 matters be done structurally down to 16 the existing space . 17 MR . NULL : Let me just focus 18 on why I asked Mr . Amicone to 19 evaluate what could be done . One of 20 the criterion to be considered is 21 whether or not a variance is 22 necessary here and Mr . Amicone ' s 23 point if I can repeat it in other 24 words is that , in other words , to 25 have a roof replacement that doesn ' t Proceedings 120 1 encroach into this side yard this 2 roof replacement that currently 3 exists could not be modified to not 4 encroach into that side yard ; is 5 that correct? 6 MR . AMICONE : Yes . 7 MR . NULL : What would be 8 entailed and I have cited case law 9 in my letter submitted to you that 10 says that the cost of funds spent in 11 reliance upon a Building Permit can 12 be considered in connection with an 13 application for a variance . 14 The costs involved are not 15 only the costs incurred with the 16 actual construction to date but the 17 costs that might be incurred in 18 order to eliminate the need of that 19 variance and what Mr . Amicone has 20 said that take away the $60 , 000 . 00 21 roof replacement whatever cost that 22 would be for that-- 23 MR . AMICONE : Estimated cost 24 for that probably to demolish would 25 be $ 10 , 000 . 00 . Proceedings 121 1 MR . NULL : And then there 2 would be a new structure that would 3 be built at some cost which we 4 believe will be substantial . In 5 addition to this now that ' s wholly 6 consistent with our application . 7 We ' ve indicated that the reason for 8 the structure here to begin with 9 there ' s an issue that I think is 10 wrapped up in this discussion fairly 11 regularly and that is what is the 12 interior space that lies above the 13 ceiling of this second story . The 14 zoning purposes my understanding and 15 I recognize Mr . Jakubowski ' s call 16 not mine but my understanding is it 17 is a half story . It is not a full 18 story . 19 In addition this is attic 20 space . There was a determination by 21 New York State Building Code 22 Enforcement official that this roof 23 replacement as currently exists 24 conforms to the building code , will 25 not require a State variance with Proceedings 122 1 regard to building code and based 2 upon July 1995 amendment to the 3 building code would be permitted to 4 continue to be attic space with 5 recreational use and a toilet 6 facility , a bathroom facility . 7 Now, Mr . Motzkin and Ms . Blum s at the last meeting of this Board 9 made much of the fact that as they 10 claim that this was not in 11 compliance with State Building Code . 12 Why is that important , well , on the 13 balancing of the equities with 14 regard to this matter if this 15 wouldn ' t be able to be occupied then 16 there may be a question as to how it 17 could be utilized . What should 18 there be that could be built , etc . , 19 etc . But it can be used in the way 20 that it ' s intended as it ' s currently 21 existing and therefore the Hoffmanns 22 are the unfortunate , they are under 23 the unfortunate circumstance of 24 having built pursuant to what they 25 reliably understood was a valid Proceedings 123 1 Building Permit only to find tonight 2 that they have a structure that was 3 built pursuant to a revoked Building 4 Permit and now the question is how 5 to remedy that difficulty in a way 6 that the Zoning Board is authorized 7 to render a determination and that 8 is 267 (b) of the Town Law 9 considering whether there is an 10 undesirable change in the character 11 of the neighborhood . We have 12 submitted photographs and tax maps 13 that show that there are significant 14 numbers of three story in 15 appearance , Tudor buildings , Tudor 16 homes throughout this neighborhood . 17 We ' ve submitted the tax maps 18 that identify where those homes are 19 located . We believe that in fact 20 the character of this building is 21 more in keeping with its Tudor 22 architectural style than was the 23 mansard roof that had been there 24 previously with the air conditioning 25 units perched above . Whether the Proceedings 124 1 benefit sought by the applicant can 2 be achieved by some method feasible 3 for the applicant to pursue other 4 variances that ' s exactly what I 5 asked . 6 Unfortunately in order to 7 replace the mansard flat roof with 8 something other than a mansard flat 9 roof that rests upon that doesn ' t , 10 have the same deflection problems it 11 would be constructed upon the 12 exterior walls and then distribute 13 the weight the way that ' s best . We 14 can ' t do it . We ' ve built it now in 15 a way that ' s structurally sound . It 16 addresses the problems that led to 17 the failure of prior roof , the 18 leakage and deflection problem . In 19 order to do something different we 20 need to eliminate this completely 21 where the present area of variance 22 is substantial . As I said the issue 23 really is this trapezoidal area . 24 There is no failure . This fully 25 complies with the height requirement Proceedings 125 0 1 under the Zoning Ordinance . A lot 2 of discussion about height . Height 3 as part of the ordinance is 35 feet 4 of the ordinance or 2 1/ 2 stories . 5 This conforms . The measurements 6 have been taken and there ' s no issue 7 about the need for a variance for 8 height . That was not your 9 determination . Determination was 10 with regard to the front yard and 11 the side yard so we are not dealing 12 with height . There ' s no way to ::b 13 reduce this height which is in this 14 trapezoidal area by coming down this 15 way or this way because you can ' t 16 modify from what I understand Mr . 17 Amicone said you can ' t modify the 18 structure that ' s there now the way 19 we redistribute the weight and make 20 that modification work ; is that 21 correct , Mr . Amicone? 22 MR . AMICONE : Yes . 23 MR . NULL : Whether the 24 proposed variance would have adverse 25 effect the impact on the physical or Proceedings 126 1 environmental condition in the 2 neighborhood or district , again , I 3 believe that that ' s another aspect 4 to the same question of whether this 5 is compatible with the character of 6 the neighborhood . 7 Photographs indicate and 8 there has been testimony by various 9 neighbors today that looking at 10 this , this is consistent with the 11 Tudor style . This is not a problem 12 and of course the subject of 13 determination of whether it is or 14 isn ' t consistent has got to be made 15 by you , not by any neighbors and not 16 by me . Whether they allege 17 difficulty this was self created , 18 this not self created . In fact even 19 if it is a self created difficulty 20 it is only relevant to the decision 21 but it ' s not . It wouldn ' t preclude 22 the granting but in any event this 23 condition is a situation that as I 24 have said occurred despite every 25 effort made by the Hoffmanns to Proceedings 127 ® 1 fullyconform with the he necessary 2 zone requirement , Zoning Code and 3 building code . 4 They went ahead and hired the 5 licensed engineer . They processed 6 the Building Permit with Mr . 7 Jakubowski . They obtained the 8 Building Permit . They constructed 9 in accordance with the Building 10 Permit . The problem arises because 11 of a reversal of the determination 12 and the need for the structure 13 itself . The roof replacement itself 14 was not self created . This is the 15 roof replacement which would have 16 necessitated this area in the side 17 yard in order to bring the supports 18 down onto the exterior walls and 19 frankly to bring the supports down 20 on the front wall that exists now as 21 well , pursuant to 1979 construction 22 that was done and is something 23 that ' s the best way to design it 24 without having to put support 25 elements through the floors in the Proceedings 128 1 building in a much more expensive 2 manner . 3 We ' ve a fairly detailed 4 description in the application which 5 I am sure you have read . I have 6 provided you with a letter which I 7 am sure you have also read . The 8 issue with regard to the 1979 9 addition which brings what we ' ve 10 referred to as the architectural 11 feature of 1 . 6 feet closer to the 12 front yard is one that arises by 13 reason of an apparent modification 14 made by the contractor to make this 15 front element consistent with the 16 line on the balance of the front of 17 the building and it doesn ' t approach 18 based upon your determination onto 19 the front yard . You don ' t consider 20 that that area variance is 21 substantial . It doesn ' t affect 22 light and open space in a manner 23 that is significant and we will 24 submit that it would be appropriate 25 to grant that variance as well as Proceedings 129 401) 1 the and varia nce . ance . 2 I still consider that the 3 area that ' s affected here is not a 4 yard but you have already determined 5 based upon your interpretation a 6 different conclusion . We are going 7 up in a manner consistent with the 8 existing structure . This area of 9 the roof was notched back . I 10 understand that an effort to reduce 11 the bulk of the roof at the point 12 adjacent to the property line and 13 therefore to drop out additional 14 bulk that might have otherwise 15 affected the neighbors . The 16 neighbors this area here provides I 17 believe two or three windows that 18 provide access out of this attic 19 space which is existing attic space . 20 The same floor area that was there 21 in 1979 is there now . It has not 22 been expanded . It has not been 23 changed as floor space , not been 24 increased as floor space . What has 25 been changed is the height . The Proceedings 130 4:) 1 height was 6 . 6 ft . It is 2 approximately 9 feet . It had been 3 used previously as a recreation area 4 and hobby room . The stairway that 5 leads up to that level is a circular 6 stairway that under the Building 7 Permit that Mr . Jakubowski issued 8 would have required a replacement of 9 that stairway that conforms with 10 building code . We understand that 11 that is to be done . We are 12 designing now that stair replacement 41' 13 and we understand that would be a 14 requirement of being able to 15 maintain that there , so , the issue 16 of access to that upstairs once you 17 have people upstairs and the windows 18 I believe on the back of the house . 19 The windows on the side provide a 20 means of egress in the event of a 21 fire for people who are in that 22 recreational area . Those windows 23 are provided partly because you have 24 got this vertical wall and the 25 ability therefore to have those Proceedings 131 1 windows . Thank you . 2 THE CHAIRMAN : Any questions 3 from Board members? 4 MS . RECIO : You said there 5 were pictures? 6 MR . WEXLER : Are there any 7 before and after pictures? 8 MR . NULL : Do we ' ve before 9 and after pictures? 10 MR . HOFFMANN : It should be 11 in there , I believe . 12 MR . NULL : I believe we ' ve 13 before and after pictures that have 14 been submitted . I believe prior to 15 this roof replacement there is a 16 picture that shows what it looked 17 like prior to the roof replacement . 18 MR . MOTZKIN : Does the Board 19 want to see prior to ' 79 . We 20 weren ' t planning on it . We showed 21 it the last time . 22 THE CHAIRMAN : While you are 23 looking at the pictures a question 24 for counsel does the application as 25 submitted sufficiently cover I think Proceedings 132 1 it does but correct me , the notation 2 that Building Department letter of 3 February 28th for a front yard 4 variance , 89 -32 ( b) ? 5 MR . KIRKPATRICK : I think so 6 but let me check that specifically . 7 MR . WEXLER : Mr . Null , I 8 understand that there were 9 commercial quality air conditioning 10 units on top of the mansarded? 11 MR . NULL : Yes . 12 MR . WEXLER : Where did they 13 go , where are they now? 14 MR . NULL : They have been 15 replaced but replaced with heavy 16 duty air conditioners that are now 17 on the ground . 18 MR . WEXLER : The air 19 conditioners on the eaves? 20 MR . HOFFMANN : They were on 21 the third floor like they were 22 before , the compressors and the 23 condensers are on the slab . 24 MR . WEXLER : And before? 25 MR . HOFFMANN : They were on Proceedings 133 1 the roof . 2 MR . WEXLER : So , that 3 relieved a lot of the weight . 4 MR . HOFFMANN : There were 5 three units on the roof . 6 THE CHAIRMAN : Are there any 7 other questions from the applicant? 8 Any questions from the public with 9 regard to this application? 10 MS . SUSSMAN : I would like to 11 make some comments if I may , Mr . 12 Motzkin and Ms . Blum would like to 13 as well so I would be brief . I want 14 to draw your attention that the 15 consideration of granting the 16 variance is based on the balancing 17 of benefits to the applicant with 18 detriment to the health , safety and 19 welfare of the neighborhood and 20 nearby properties under Town Law 21 267 . B and the reasons associated and 22 that is based on the making of the 23 alteration in the first place . What 24 I think Mr . Null has concentrated on 25 is the difficulty of removing what Proceedings 134 4:) 1 has alreadybeen en placed there and 2 has weighed the fact that this was 3 built as an overwhelming factor 4 which it is not . It is entitled to 5 some consideration but there are 6 other compelling considerations in 7 the test . 8 With regard to detriments to 9 the property of the neighborhood 10 alternatives that could have been 11 used to deal with the problems that 12 existed in the first place . I know Q13 that the air conditioners were moved 14 so that the problem caused by the 15 air conditioners was alleviated that 16 could have been done presumably 17 maybe somebody who is expert in that 18 area can address that but that could 19 have been done without necessarily 20 creating this structure and the 21 problem as it was presented in the 22 application of the leaking roof , air 23 conditioners had some problems . 24 This is a very large solution to 25 that problem and considering its Proceedings 135 1 effect on the surrounding properties 2 and Mr . Motzkin and Ms . Blum have 3 described the effects on their 4 property is serious and is very 5 compelling consideration and 6 substantiality of the addition is an 7 issue . It had been minimized and I 8 think the presentation that you are 9 about to see will demonstrate that 10 so the difficulty that ' s created by 11 having been constructed there are 12 issues that are quite in dispute 13 about what the sequence of events 14 was and they are by no means proven 15 or undisputed and that alone will 16 not entitle these applicants . I 17 would like to turn this over to Mr . 18 Motzkin and Ms . Blum . 19 MR . MOTZKIN : A question was 20 asked earlier what appears of the 21 structure was prior to 1979 . This 22 was presented at the last hearing . 23 MR . WEXLER : What was prior 24 to ' 79? 25 MR . MOTZKIN : I thought the Proceedings 136 401) 1 question was asked but I am sorry I 2 misunderstood . Just to reiterate it 3 was one story garage structure 4 attached and there was the yard 5 behind that structure that was 6 subsequently built into a ' 79 7 variance and this is the side yard . 8 The ' 79 variance also extended back 9 into the rear yard as well and 10 that ' s the photograph taken from 11 assessor ' s records that shows the 12 1979 , pre-1979 appearance . 13 The question was also asked 14 what the post 1979 pre-1995 15 appearance was and these are altered 16 photographs of the current condition 17 with the roof line of the 1979 18 variance and superimposed on them 19 and the outline of 1979 roof , 20 mansard roof as per 1979 variance 21 drawings and this shows the extent 22 of the addition in 1979 . 23 MR . JAKUBOWSKI : It also 24 shows-- 25 MR . MOTZKIN : The Proceedings 137 © 1 encroachment . The front yard 2 encroachment from what was filed and 3 what was actually built . 4 MS . BLUM : The center gables 5 is actually designed in 1979 to 6 project forward so what was done was 7 instead of having it project forward 8 the ' 79 work was brought so that it 9 was in the same plane . 10 MR . MOTZKIN : We are here to 11 speak out against the application 12 before you tonight . This variance 13 hearing represents an unusual and 14 very disturbing situation . We are 15 not here to discuss the potential 16 impact of a proposed project . We 17 are here to speak out about what we 18 know only too well is the impact of 19 the project already in construction . 20 Unfortunately , despite our 21 expression of concern about the 22 legality of the project as soon as 23 we were shown drawings of it prior 24 to an issuance of a Building Permit , 25 the project proceeded into Proceedings 138 1 construction . 2 Our property and neighborhood 3 beyond it have been impacted by this 4 expansion which overwhelms our 5 property and undermines our right 6 and enjoyment of it . The fact that 7 this addition even went into 8 construction indicates that 9 something is very wrong . We are 10 here to raise the issues which need 11 to be raised before this community , 12 to assure that not only will this 42w. 13 wrong be righted , but that it won ' t 14 happen again . 15 We are in the unique position 16 tonight as the neighbor most 17 directly affected by this 18 application . Others may express 19 support or raise concerns about the 20 project , but none of these people 21 will have to live with quite the 22 same effects to their home and 23 property as we will . 24 As architects we are not 25 opposed to change , and in fact spend Proceedings 139 4011) 1 our professional lives involved with 2 renovations , additions , and new 3 construction , sometimes going before 4 zoning boards to request a variance . 5 There are times when the variances 6 make sense , and times when they do 7 not . The latter is the situation 8 before you tonight . 9 The repercussions of zoning 10 variances live on after people who 11 apply for them , neighbors who 12 support or oppose them , and Boards 13 who grant them . When the Hoffmanns 14 were granted the variance in 1979 15 the previous owner of our property 16 did not object . The Hoffmanns also 17 demonstrated hardship and lack of 18 suitable alternatives . Their 19 application was approved even though 20 it was substantial in terms of bulk 21 and floor area added to the original 22 house . 23 Had we lived here in 1979 , 24 the results of that variance might 25 have been very different . Yet we Proceedings 140 1 have had to live with a two-story 2 high , 50 ' long wall , 5 1 / 2 feet from 3 our property . We are not the only 4 ones who have expressed concern 5 about the impact of the Hoffmanns ' 6 1979 addition but the minutes of the 7 Zoning Board of Appeals which issued 8 the 1979 variance also questioned 9 the size as was discussed in the 10 earlier application . Several 11 residents who were here in 1979 12 considered the house overbuilt for 13 the lot even at that time . This 14 application significantly 15 exacerbates that condition . 16 We are acutely aware that the 17 decision to be reached tonight is a 18 difficult one . However , laws and 19 regulations exist to protect 20 everyone equally . If the rules are 21 set aside , they become meaningless 22 and the protection we depend on 23 cease to exist . 24 MS . BLUM : We wanted to speak 25 for a moment about zoning precedent Proceedings 141 1 in the neighborhood . 2 In evaluating the validity of 3 the Zoning Board ' s application for 4 the Hoffmanns , it is important to 5 look at recent zoning variance 6 precedent just three houses away at 7 7 Meadow Place . The Garrys 8 submitted an application before this 9 Board in 1994 to build on top of an 10 enclosed porch which had previously 11 received a variance for a side yard 12 encroachment , six feet instead of 10 13 feet . The immediate neighbors 14 objected and the Garrys withdrew 15 their application and later returned 16 with an application for two bay 17 windows added to the enclosed porch 18 instead . That application was minor 19 and was approved . 20 The 1994 Variance Resolution 21 for the Garry ' s project from this 22 very Board stated that the variance 23 was being granted because , "the 24 first floor addition is minimal in 25 nature , " the most affected neighbor Proceedings 142 ® 1 supports the application an d pp the 2 applicant agreed to , " . . . screen the 3 addition . " The resolution further 4 stated that the variance was , " in 5 harmony with the general purposes 6 and intent of the Zoning Ordinance , 7 and the application yet also 8 preserve ( s ) and protect ( s ) the 9 character of the neighborhood . . . " 10 There are critical 11 similarities and differences between 12 the Garry and Hoffmann projects . IP 13 The Garrys originally 14 proposed to add a second story over 15 a previously granted zoning variance 16 for a non-conforming enclosed porch . 17 The Hoffmanns are adding a third 18 story over a previously granted 19 variance . 20 The Garry ' s first application 21 was not supported by the two most 22 affected neighbors . The Hoffmann ' s 23 application is not supported by two 24 of the three most affected 25 neighbors . Proceedings 143 1 The Garry ' s original project 2 was smaller in size and more in 3 harmony with neighborhood character . 4 The Hoffmann ' s project is larger and 5 unprecedented in the neighborhood . 6 The length of encroachment 7 for the Garry project was 8 approximately 19 feet . The length 9 of encroachment for the Hoffmann 10 project is 50 feet along our 11 property line . 12 The Garry property is a 13 corner lot with one yard 14 encroachment . The Hoffmann property 15 is one of only two lots in Howell 16 Park which have two side yard 17 encroachments and an additional 18 self-created front yard 19 encroachment . 20 The distance between the 21 Garry ' s house and their nearest 22 adjacent neighbor ' s house is 70% 23 greater than the distance between 24 the Hoffmann ' s house and ours . 25 The Garry project was minimal Proceedings 144 1 in size and nature of encroachment . 2 The Hoffmann project is not minimal 3 in size and nature of encroachment . 4 The Garry project could be 5 screened . The Hoffmann project 6 cannot be screened . 7 MR . MOTZKIN : In evaluating 8 whether a Zoning Variance should be 9 granted for the Hoffmanns , it is 10 important to examine it in relation 11 to the 1979 Zoning Variance 12 Resolution . How are this project 13 and the circumstances surrounding it 14 different from what was reviewed and 15 specifically permitted in 1979 . 16 In 1979 two stories were 17 permitted . Built in 1995 2 1/ 2 18 stories by zoning and three stories 19 by building code have been built . 20 Plans filed in 1979 permitted 21 a mansard roof with a maximum height 22 of 8 ' 6 " on the exterior . There were 23 no vertical walls above the second 24 story . There was no attic plan 25 filed and there was no habitable Proceedings 145 1 space above the second floor . The 2 plans are different than those for 3 the 1995 application . The roof has 4 been changed to a gable roof up to 5 17 ' 3 " high , vertical walls exist at 6 the front , side and rear and 7 habitable attic has been filed for 8 in the current application . 9 In 1979 there was an 10 expanding family hardship . 11 Currently , there is a shrinking 12 family and no hardship . In 1979 13 there was practical difficulty with 14 no alternative design option . In 15 1995 there is no practical 16 difficulty or compelling need . The 17 project is based upon personal 18 convenience and the design could 19 have been created without further 20 encroachment into the side yard . 21 In 1979 the project could not 22 be accommodated otherwise . In the 23 current application it could have 24 been accommodated otherwise . 25 In 1979 the neighbors didn ' t Proceedings 146 1 object . In 1995 the neighbors are 2 different and they do object . 3 The project was approved in 4 1979 under the prescribed variance 5 process . In 1995 the project 6 circumvented the Zoning Ordinance 7 and the required variance process . 8 In 1979 the variance was in 9 harmony with the general purposes 10 and intent of the Zoning Ordinance . 11 It was not injurious to the 12 neighborhood or otherwise 13 detrimental to the public welfare . 14 The current project is not in 15 harmony with general purposes and is 16 in violation of specific provisions 17 of the Zoning Ordinance . The 18 project has caused adverse 19 neighborhood reaction , and sets a 20 bad precedent for future 21 development . 22 The Project in 1979 violated 23 Section 89 -32 ( B) ( 2 ) ( a ) ( b) side yard 24 requirements and the current project 25 violated that same one plus its Proceedings 147 C 1 front yard encroachment . 2 In 1979 the addition was to 3 be in strict conformance with plans 4 filed with this application provided 5 that the applicant complied in all 6 other respects with the Zoning 7 Ordinance and Building Code of the 8 Town . In 1995 the addition was not 9 in conformance with plans filed in 10 1979 or the current Zoning 11 Ordinance . 12 In reviewing this application 13 the Board must find that the 14 applicant meets the test of five 15 State mandated criteria , weighing 16 the benefit to the applicant if the 17 variance is granted against 18 detriment to the community . 19 Criteria number one : Whether 20 an undesirable change will be 21 produced in the character of the 22 neighborhood or a detriment to 23 nearby properties will be created by 24 granting a variance . 25 The project produces an Proceedings 148 1 undesirable change in the character 2 of the neighborhood and is a 3 detriment to nearby properties . 4 Nothing like this has ever 5 been built in the neighborhood . The 6 project is alien to the neighborhood 7 character and to any other Tudor 8 Revival residences in the 9 neighborhood . The style of the 10 house is English Tudor Revival , a 11 romantic movement prevalent in the 12 1920 ' s in Larchmont . 411 13 The project is not designed 14 in the English Tudor Revival style . 15 The addition is neither 16 picturesque nor graceful . The new 17 attic or third story is not within 18 the central massing of the 19 structure , making it lopsided and 20 atypical of Tudor Revival . There is 21 no composition , just added bulk 22 violating the original front gable , 23 the house ' s original architectural 24 focal point . 25 There is no complex or 411 Proceedings 149 401) 1 articulated massin g . Massing is a 2 single monolithic block and not 3 articulated into smaller , more 4 complex volumes and projections as 5 is of the Tudor Revival style . 6 There are no steeply pitched 7 gable or hipped roofs . The 8 "Jerkinhead" hip end of new gable 9 roof is misapplied , being too wide 10 and not centered over the windows 11 below . 12 There are no characteristic 13 shed , hipped or gabled dormers . 14 There are no romantic details 15 of timber and changes in masonry 16 material . 17 There are no narrow casement 18 windows with divided lights . 19 The bulk and height of the 20 project are out of keeping with the 21 characteristics of the original 22 residence design and overpower 23 neighboring residences . 24 This project merely has some 25 cosmetic half-timbered Proceedings 150 © 1 characteristics of Tudor design . 2 There is no Tudor Revival or other 3 residence in the neighborhood which 4 is similar in style , massing , height 5 or bulk to this design . The project 6 sets an unprecedented model for 7 increasing the extent of yard 8 encroachments , height and bulk of 9 existing residences beyond the R-15 10 district regulations . 11 We submit photographs of 12 other English Tudor Revival homes in 13 Howell Park as well as the houses 14 which are immediately adjacent to or 15 opposite from the Hoffmann 16 residence . The immediate 17 neighborhood context illustrates how 18 inappropriate this project is to the 19 established neighborhood character . 20 MS . BLUM : Criteria number 21 two , whether the benefit sought can 22 be achieved by some method , feasible 23 for the applicant to pursue , other 24 than the variance . 25 It was entirely feasible to Proceedings 151 © 1 design the project without further 2 encroachment into the required side 3 yards within reasonable bulk and 4 height , while still being 5 stylistically appropriate with the 6 original house . If the goal of the 7 project , as stated , was to eliminate 8 roof drainage problems , there were 9 far simpler , less massive and less 10 costly designs than in the 11 application . The project creates 12 and I can ' t stress this enough , its AP 13 biggest physical impact on the 14 portion of the site least able to 15 afford it , the non-conforming side 16 yard which was already overbuilt . 17 Additionally , better daylight and 18 views could have been achieved by 19 orienting windows to the front and 20 rear of the property rather than to 21 the side , within the restrictions of 22 the zoning half story . 23 We present three alternative 24 designs to illustrate how the 25 benefit sought could have been Proceedings 152 © 1 achieved without the impact created . 2 Alternatives illustrate how the same 3 space on the third story could have 4 been created without encroaching 5 further into the side yard than the 6 1979 variance . All three 7 alternatives are minimal in bulk 8 compared to that proposed . All of 9 the alternative designs are more 10 consistent with the English Tudor 11 Revival style of the original house . 12 All alternatives provide for 8 ' foot 13 headroom rather than the 9 ' feet 14 proposed and do not provide for the 15 fourth floor attic storage which is 16 part of the addition . 17 Alternative One : This design 18 continues the original slopes of the 19 steeply pitched mansard roof up to a 20 hip ridge with hipped dormers at the 21 front , side and rear . It would have 22 been characteristic of the steeply 23 pitched hip roofs of the original 24 house . There would have been no 25 further front or side yard Proceedings 153 1 encroachment of walls rising above 2 the second story . The ridge , while 3 slightly higher than the original 4 gable ridge , would have been set 5 back 10 feet from the existing side 6 yard wall and side yard line . The 7 maximum height would have been 8 further in toward the center of the 9 property where it belongs 10 compositionally . The front of the 11 house would have been impressive and 12 consistent with complex compositions 13 of neighboring Tudor Revival 14 architecture , ( such as those houses 15 at 19 , 110 and 118 Carleon Avenue . ) . 16 Alternative Two : This design 17 repeats the original front attic 18 gable roof . It would have been 19 consistent with the Tudor Revival 20 style of the house and other Tudor 21 Revival houses in the neighborhood , 22 ( at 19 , 22 , 116 Carleon Avenue and 23 66 Howell Avenue) . There would have 24 been no further side yard height 25 encroachment from walls rising above Proceedings 154 1 the second story by continuing the 2 slope of the approved mansard up to 3 a ridge no higher than the original 4 attic front gable maintaining the 5 original architectural integrity of 6 the original design . Dormers could 7 have been placed in the north facing 8 slope , set back to a conforming 10 9 food side yard dimension . The 10 maximum height would have been 11 further toward the center of the 12 property where it belongs 13 compositionally . The front of the 14 house would have been improved , 15 impressive and consistent with the 16 English Tudor Revival style . 17 MR . MOTZKIN : I have to 18 comment that this alternative would 19 have caused a front yard variance 20 issue . 21 MS . BLUM : Alternative Three : 22 This design simply adds above the 23 existing mansard flat roof with a 24 shallow sloped roof . It would have 25 truly been a way to achieve a Proceedings 155 C 1 pitched roof and increase attic 2 headroom with minimum impact on the 3 neighborhood without the zoning 4 violation , at a minimal cost . One 5 of the things I wanted to point out 6 about all three of these that like 7 the 1979 design they sloped away 8 from the side yard so they would not 9 have reduced the light and views to 10 our property to the extent that the 11 current work does it is really the 12 issue of the continuation of that 13 wall along our property . 14 Criteria Three : Whether the 15 requested variance is substantial . 16 The footprint of the side 17 yard encroachment is 5 1/ 2 by 50 18 feet long . The side yard 19 encroachment is 50 feet long by an 20 average of 11 feet high . The height 21 of the non-conforming side yard wall 22 is increased by a startling 55 % . 23 The overall height is 17 feet above 24 the second story . The front yard 25 encroachment overhang is 1 1/ 2 Proceedings 156 1 stories high , 1 ' 6 " deep and 20 feet 2 long . 3 The project was designed to 4 "Max-out " the use of the property 5 and in this case meaning : 800 6 square feet for two new habitable 7 rooms connected to a new bathroom 8 with 200 square feet of storage 9 where prior to 1995 only 10 non-habitable attic storage existed 11 and 480 square feet more attic 12 storage space in a fourth tier above 13 the habitable space . 14 2 . Meet the technical zoning 15 definition of a half-story to 16 circumvent categorization of the 17 addition as a third floor , even 18 though it is considered a third 19 story by Building Code . The 20 peculiar knee walls at the front and 21 rear were generated by the zoning 22 definition not by appropriate 23 architectural design considerations . 24 3 . Attain an attic above the 25 third floor while avoid exceeding Proceedings 157 ® 1 the 35 foot i height limi t t by working 2 with the technical definition of 3 mean roof height . In actuality the 4 project height is over 41 feet high . 5 The project ' s design and 6 volume derives from these goals not 7 from design compatibility with the 8 original English Tudor Revival 9 composition or compatibility with 10 established neighborhood 11 architecture , bulk and height . 12 MR . MOTZKIN : 4 . Criteria , 13 is whether the requested variance 14 will have an adverse effect or 15 impact on the physical or 16 environmental conditions in the 17 neighborhood . 18 The project in construction 19 has a very adverse effect or impact 20 on physical conditions in the 21 neighborhood . Its enormous size is 22 a physical aberration in the 23 neighborhood whose scale is 24 otherwise consistently lower and 25 smaller . The few other houses in Proceedings 158 1 Howell Park which have 2 non-conforming side yards typically 3 have one story porches or two 4 stories original to the house 5 encroaching into one side yard . The 6 Hoffmann house is only one of two 7 houses in the neighborhood which 8 have two side yard encroachments 9 there is the Cavanas (ph) property is 10 a half sized lot compared to most of 11 the lots in the neighborhood . It is 12 the only house in the neighborhood 13 with a three story wall encroaching 14 into a side yard . The condition was 15 created by the owner not original to 16 the property . 17 The most direct physical 18 impact of the project is on our 19 property where it creates a canyon 20 adjacent to it . The portion of our 21 lot which is affected is its 22 sunniest area ( southwest exposure) 23 which includes a cutting garden , 24 sunroom , and our own bedroom . We 25 have been deprived of sun to those Proceedings 159 1 spaces for much of the afternoon . 2 The impact of the project has 3 significantly reduced our outward 4 views , hours of sunlight reaching 5 our garden and sunroom . The spaces 6 where we spend extended periods of 7 time are now literally overwhelmed 8 and overshadowed . 9 MS . BLUM : We looked for two 10 years to find our house . We 11 purchased our home in part because 12 we wanted a sunny cutting garden . I 13 am an avid gardener and I spend a 14 great deal of time in the spring , 15 summer and fall in the exact area 16 where our sunlight has been 17 adversely impacted . Last time we 18 were here we were asked a question 19 about the degree to which the 20 sunlight had been impacted and we 21 took some additional photos which I 22 wanted to pass around . They were 23 taken at 1 : 30 in the afternoon on a 24 very sunny day . If you look beyond 25 our property you can see how sunny Proceedings 160 1 the neighborhood is beyond that and 2 you can see that the area impacted 3 by the construction is now in shade . 4 The photograph below that shows a 5 view from our backyard again showing 6 that area and shade beyond the 7 trees . 8 Further , the closeness of the 9 Hoffmann ' s to the side property 10 lines and its height at that area 11 create construction and maintenance 12 difficulties which do not exist 13 previously . Zoning is supposed to 14 prevent the closeness of a structure 15 to a side yard to allow construction 16 and maintenance of the residence 17 from within that property . 18 Construction , maintenance , and 19 service of the Hoffmann ' s third 20 story and roof are impossible 21 without using our driveway for 22 ladders or erecting scaffolding 23 which is partially on our property 24 which has in fact occurred during 25 construction . This requirement Proceedings 161 1 places an unreasonable burden on us 2 and future owners of the Hoffmanns 3 and our home . It undermines our 4 right to privacy and use of our 5 property . It obligates the 6 Hoffmanns to bear the cost of 7 scaffolding to perform maintenance 8 work which , with a proper side yard 9 and height of structure , would be 10 possible from within the property on 11 ladders as the Hoffmanns have done 12 in the past . Zoning Ordinances and 13 R-15 district yard requirements , 14 in-part , created protection against 15 such problems . The benefit sought 16 could easily have been achieved 17 without creating this situation . 18 MR . MOTZKIN : The last 19 criteria is whether the alleged 20 difficulty is self-created . 21 The project is entirely 22 self-created by "personal 23 convenience" to "max-out" a property 24 beyond reasonable expectations and 25 established neighborhood character . Proceedings 162 1 It is not based upon a "compelling 2 need . " 3 The only difficulty that the 4 Hoffmanns might claim is that they 5 obtained approval from the Building 6 Department . While the town approval 7 in error may have created a 8 hardship , the Hoffmanns and their 9 engineer also bear responsibility 10 for what has occurred . Mr . Hoffmann 11 is a builder . He and his wife had 12 to apply for a zoning variance 16 13 years ago for a project similar in 14 impact to this application . The 15 engineer who prepared the design 16 documents was Building Commissioner 17 for the City of White Plains during 18 the period when this project was 19 reviewed and approved it was 20 presumably familiar with zoning and 21 building code issues . 22 Ultimately , the burden for 23 compliance is placed upon the design 24 professional who files the 25 documents . The approval on the Proceedings 163 1 November 7 , 1995 document bears a 2 stamp note which states and I quote ; 3 "All provisions of the Building Code 4 and Zoning Ordinances of the Town of 5 Mamaroneck shall be complied with in 6 the construction of said building or 7 alteration whether specified or 8 not" . Zoning issues were of concern 9 to the Hoffmann ' s engineer as early 10 as June 5 , 1995 when he left a 11 telephone message for the Building 12 Inspector posing the question , 13 quote , "What design of the roof 14 change involves the zoning 15 application? " The engineer , as the 16 Building Commissioner in White 17 Plains at that time , must certainly 18 have been aware of possible zoning 19 issues . 20 When Paul Hoffmann first 21 showed us his plans on or about 22 November 1 , 1995 , he explained that 23 the purpose of the project was to , 24 "max-out my property" . We stated 25 that we believed the design required Proceedings 164 1 a zoning variance . Thus , Mr . 2 Hoffmann as well as his engineer , 3 were aware of zoning issues . 4 The filed documents are 5 misleading and disturbing because 6 they lack information required by 7 the Building Department as part of 8 the normal process of filing for a 9 Building Permit . Specifically , they 10 do not indicate any reference to 11 existing conditions , thereby 12 providing no basis for evaluating 13 changes to the existing 14 construction . These drawings have 15 been annotated . The original 16 drawings that were presented earlier 17 were not annotated with the 1979 18 appearance . There was no basis for 19 comparing them . 20 Exterior work was mostly 21 completed prior to the Building 22 Inspector ' s letters of January 10 , 23 1996 advising the Hoffmanns that the 24 filing of our appeal would halt any 25 further inspections , and that Proceedings 165 1 continuing construction would be at 2 their own risk . However , while Mr . 3 Hoffmann has stated that he stopped 4 work on January llth , the fact is 5 that we observed construction work 6 continue inside the Hoffmann ' s 7 residence until February 1 , 1996 . 8 At a minimum , that portion of the 9 construction is totally 10 self-created . 11 The fact that this project 12 has been partially constructed in an 13 error by the Town does not absolve 14 Mr . Hoffmann and his engineer from 15 responsibility , nor should it be a 16 factor in determining the merits of 17 this application for a variance . 18 Even if some of the Hoffmann ' s 19 investment is not self-created , the 20 detrimental impact to the project 21 outweighs this factor . The project 22 does not meet any of the other four 23 variance criteria mandated by the 24 State . 25 MS . BLUM : In conclusion , we Proceedings 166 ICI 1 have paid dearly to be here tonight . 2 We have damaged , possibly 3 irreparably , a previously amicable 4 neighborly relationship . We have 5 been forced into an adversarial 6 position with the Building 7 Department with whom , as architects , 8 we will file documents in the 9 future . We have also invested an 10 inordinate amount of effort to 11 defend our rights , taking away from 12 our work and family . Obviously , we 13 would not be putting ourselves 14 through all of this agony if it were 15 not enormously important for us to 16 do so . 17 We believe that we have 18 clearly demonstrated that this 19 project does not meet the five 20 criteria to be used by this Board in 21 making a decision . We have also 22 illustrated that it does not meet 23 other provisions of State Law 24 because it is not the "minimum" 25 variance necessary and adequate to Proceedings 167 1 preserve and protect the character 2 of the neighborhood . The requested 3 variance is anything but minimal . 4 We are asking you to deny 5 this application for a Zoning 6 Variance as you would have done if 7 it were before you prior to issuance 8 of the Building Permit . You should 9 not use the fact that the project is 10 partially constructed as a 11 justification for approval . The 12 Board must afford us and others in 13 the Howell Park neighborhood all the 14 projections we would have received 15 had there been no construction . 16 If this project is granted a 17 variance , it will deny us and other 18 neighbors the protections the Zoning 19 Ordinance affords . It would also 20 set a precedent which is detrimental 21 to the established physical 22 environment . If other neighbors 23 apply the premiss behind this 24 expansion , the height and bulk of 25 the neighborhood will be Proceedings 168 1 significantly increased , views and 2 sunlight will be reduced , and its 3 character will be undermined . 4 We personally and our Howell 5 Park area should not suffer now or 6 in the future with a permanent blot 7 on our neighborhood which will 8 survive individual ownerships 9 because the Town did not recognize 10 the validity of our contention that 11 this project was not permitted under 12 zoning laws . We ask you to uphold O13 the Zoning Ordinance and its 14 underlying principles . We believe 15 that the only responsible action by 16 this Board is to deny this 17 application . Thank you . 18 THE CHAIRMAN : Yes , Mr . Null . 19 MR . NULL : There obviously 20 was a lot presented by Mr . Motzkin 21 and Ms . Blum that requires a 22 response . To begin with I don ' t 23 believe that it is determined that 24 design issues which may have 25 otherwise be considered by Proceedings 169 1 Architectural Review Board and 2 alternatives which they may have Mr . 3 Motzkin and Ms . Blum may have come 4 up with had they been retained as 5 the architects on this project are 6 relevant to a consideration of this 7 application tonight . They suggest 8 in fact they stated what was done 9 here was to circumvent the Zoning 10 Code . Everything that was done here 11 was done in a manner to comply with 12 the Zoning Code and I think that ' s 13 what was presented everyone with the 14 difficulty in the first application . 15 The Hoffmanns built this 16 building roof replacement in a 17 manner in which they fully believe 18 with their faith conformed to the 19 Zoning Code . They didn ' t need to 20 explore the alternatives that Mr . 21 Motzkin and Ms . Blum presented in 22 the intent whether any one of them 23 might have been acceptable because 24 they conformed to the Zoning Code 25 and received a Building Permit . Proceedings 170 1 Yes , there is a separate 2 issue here . What might have been 3 able to be done to accommodate 4 structurally a replacement of this 5 roof in a manner that would have 6 addressed preservation of the attic 7 space that the Hoffmanns were then 8 utilizing as a recreation area and 9 hobby room space and their family is 10 not shrinking , in fact , I have their 11 son if he stands up is anything but 12 shrinking . The height of that 13 recreation area in the attic is 6 ' 6 " 14 which is probably barely enough to 15 clear his head , if at all . I think 16 it is important that there are 17 separate issues here between 18 building code and Zoning Code that 19 has been identified in the prior 20 meeting . I think the state 21 architect who issued a letter on 22 Monday or Tuesday that you should 23 have a copy . I provided you a copy 24 which should put an end to that 25 question . Proceedings 171 1 As far as it goes there was 2 no intention here other than factual 3 circumvention of any building code 4 issues . In fact everything that was 5 designed by Mr . Amicone and 6 constructed by the Hoffmanns was 7 done in a manner to conform with all 8 known interpretations of applicable 9 rules , codes and regulations . Ms . 10 Sussman had mentioned that the air 11 conditioners had been moved that 12 would have taken care of the 13 problem . That wasn ' t the problem . 14 The problem was that the roof itself 15 was unable to handle the weight the 16 way it was structured as a mansard 17 flat roof . The weight of the 18 commercial air conditioners 19 exacerbated that they were removed 20 in view of the problem . Part of the 21 design here was to incorporate those 22 air conditioner component internal 23 to the roof . That ' s been done . 24 There was a 200 square feet 25 area here that ' s inside the Proceedings 172 1 existing , actually the previously 2 existing builder and house that had 3 previously been used by the 4 Hoffmanns for storage . There ' s a 5 metal bar that runs the length of 6 that area . There ' s a work table 7 that ' s there . All of it had been 8 used prior to 1979 . There had been 9 an attic door that enabled them to 10 access it . That ' s not area that ' s 11 increased or affected by this 12 although they are now the 13 elimination of attic door . There ' s 14 access you could just walk to the 15 floor area existed before that attic 16 area existed previously access to 17 the Hoffmann ' s home . States 18 building code requires five feet 19 separation . It doesn ' t require more 20 than that . They can get a ladder up 21 there , they can get scaffolding up 22 there . It really has no relevance 23 to the questions presented here 24 tonight on the variance application . 25 Any quote on quote "burden" that Proceedings 173 1 might be placed upon or imposed upon 2 by the Hoffmanns by reason of 3 needing to scaffold if they do need 4 to scaffold . That ' s something of 5 their choice not an issue that 6 affects anybody but them . It 7 doesn ' t affect any neighbors , etc . 8 This building addition was 9 not partially completed . This is 10 substantially completed . That ' s a 11 significant difference . It ' s a 12 meaningful difference in what can be 13 done tonight because there is a 14 whole line of case law that 15 addresses the fact that when a 16 structure is completed the request 17 for a variance at that point may 18 become moot . Given that it is up 19 and already done the fact that that 20 is a very compressed time period in 21 which this occurred it is not a 22 typical situation where you have 23 five months or more for a house to 24 be built or something like this . 25 This was built and substantially Proceedings 174 IE 1 constructed in about tw o months but 2 we ' ve got the same issue . The 3 Hoffmanns built this in a manner 4 that they understood was proper and 5 now have a structure that can ' t be 6 modified . I am going to have Mr . 7 Amicone address what his 8 recommendations were when he met 9 with the Hoffmanns to begin with and 10 what options there might have been 11 because Mr . Motzkin and Ms . Blum are 12 architects . They are not engineers C13 and there are structural problems 14 that are primary reasons for meeting 15 to a place of this roof and 16 structural difficulties have come up 17 with the particular designs that Mr . 18 Motzkin and Ms . Blum suggested that 19 might have been alternatives . 20 MR . AMICONE : When I was 21 originally asked to come and look at 22 this house it was a mansard roof . 23 That roof was falling apart and 24 partly due to the fact that there 25 was air conditioning units , there Proceedings 175 O1 were air conditioning units on the 2 roof of substantial size and weight . 3 Partly due to the fact the way it 4 was constructed the bearing was off 5 approximately in here and around the 6 perimeter which was into the floor 7 itself . It was not on the support . 8 My opinion as an engineer I told 9 them in my opinion this structure as 10 it existed , this roof structure as 11 it exists was no longer capable of 12 functioning properly . ..,, 13 I recommended that they 14 remove the entire portion . My 15 original mandate was could this be 16 fixed . My recommendation was no 17 that it couldn ' t be fixed . Could it 18 be fixed properly , they would always 19 have a problem . I recommended that 20 they put a new roof . We went 21 through several roof designs as did 22 their neighbors . Structurally the 23 safest and best way to build this 24 was to use the existing structural 25 walls which is what we did . We ' ve Proceedings 176 CI) 1 some of the designs that have been 2 imposed by the neighborhood would 3 have required substantial 4 construction inside the building all 5 the way down through the building to 6 properly support the weight . 7 Frankly this design is one 8 that met the needs of the Hoffmanns , 9 structurally sound and the one that 10 they openly decided to do . We did 11 as we did with distinct impression 12 that this was absolutely in Apik 13 compliance with zoning and 14 absolutely I know it is in 15 compliance with the Building Code . 16 I point out my former position that 17 has nothing to do with this I am a 18 licensed professional engineer and I 19 designed this in a way that I felt 20 was the most appropriate way 21 structurally and met the needs of my 22 client to be constructed and we went 23 through the normal process of the 24 Town to get our approvals as far as 25 I know we did that . Proceedings 177 1 MR . NULL : What would it cost 2 to take apart what is here and then 3 build something? 4 MR . AMICONE : It all depends 5 what would have to be built . The 6 substantial portion if not the 7 entire roof will have to be removed 8 in order to be able to build 9 anything that doesn ' t have any 10 encroachment assuming that they got 11 a front yard encroachment but no 12 side . We are talking about Aik 16, 13 essentially the removal of what ' s 14 there now . The way it ' s designed . 15 It is designed in a way that this is 16 how it should be built and to remove 17 that structurally you are now coming 18 right down through maybe one third 19 of a way into the house with all of 20 the structural components that have 21 to be carried all the way down . 22 There are rooms below , two levels 23 below . 24 MR . NULL : As I have noted 25 before the issue of height in roof Proceedings 178 1 replacement is not a Zoning Code 2 issue . That is Mr . Motzkin and Ms . 3 Blum presented it , they presented it 4 as a architectural design issue and 5 there may have been greater 6 flexibility had this first been 7 presented to you as a sheet of paper 8 instead of photographs of a 9 substantially constructed roof 10 replacement those latitudes don ' t 11 exist right now . Those are real 12 issues . It comes to the balance 0 13 whether the benefits sought by the 14 applicant can be achieved by some 15 method feasible by the applicant to 16 pursue ( inaudible ) . 17 Only the criteria under 18 Section 267 B of the Town Law 19 whether the requested area variance 20 is substantial , the area variance 21 that ' s been sought is this 22 trapezoidal area it is not a 23 variance from the typical English 24 Tudor style building . It is a 25 variance from provision of your Proceedings 179 1 Zoning Code that regulate side yard 2 setbacks and the area that ' s being 3 sought is an area that is necessary 4 in order to carry the weight of this 5 roof line down to the structural 6 wall and it can ' t be reduced and the 7 measurement of it when you consider 8 that the yard is what we are 9 measuring , that yard area even 10 acknowledging that it is above the 11 1979 area we are not encroaching 12 into the side yard any more than we 13 were previously . There were 14 photographs that my client took 15 unfortunately we don ' t have them 16 here with regard to height in Mr . 17 Motzkin and Ms . Blum ' s yard . I 18 would submit that light at any one 19 time is merely that . It is a 20 snapshot of time . It doesn ' t 21 indicate what it was before the 22 addition and it is really difficult 23 to measure how long light is or 24 isn ' t available . 25 Whether proposed variance Proceedings 180 1 will have an adverse effect of 2 environmental conditions of 3 neighborhood or district , what we 4 are comparing is what had previously 5 been approved which was less 6 consistent with the Tudor style of 7 this home than is now as existing on 8 the house . There are in the 9 photographs that the Hoffmanns 10 presented as well as photographs 11 that Mr . Motzkin and Ms . Blum 12 presented . 13 Many homes with third level 14 windows and areas that are high up 15 throughout this neighborhood . In 16 fact there ' s no consistency to this 17 neighborhood in any way where you 18 can say this building stands out in 19 the way that one of the neighbors 20 had commented about a modern house 21 standing out in an otherwise , an 22 area otherwise populated by homes 23 that are other than modern . 24 Whether undesirable changes 25 have been produced in character has Proceedings 181 1 been a detriment to nearby 2 properties have been created by 3 granting of the variance again 4 coming back , do you got to identify 5 what ' s involved here . This area 6 here is not the subject of the area 7 variance . This height and bulk of 8 the roof replacement is not the 9 subject of the area variance . This 10 area is , if this had been angled 11 like this it would have 12 theoretically reduced the 13 encroachment into that e side yard 14 which I believe there ' s a beam that 15 runs from front to rear that is 16 along side to side across here that 17 rests on this area . A line that 18 runs like that wouldn ' t have carried 19 it out that a height that would have 20 allowed for usable space to 21 continued to be used . 22 Whether the alleged 23 difficulty was self-created to the 24 extent if at all this was 25 self-created it was self-created in Proceedings 182 1 the pattern of activity that was 2 fully in good faith and I believe to 3 be in conformity with everything 4 that would have been directed by the 5 Zoning Code . The Hoffmanns hired a 6 reputable engineer who filed plans 7 that were reviewed by your 8 professional who rendered a 9 determination that the plans 10 conformed to the Zoning Code and it 11 was only after all of that having 12 also shown , the Hoffmanns showed the 13 plans to various neighbors and 14 discussed the matter with the 15 various neighbors that the building 16 went up and while the building was 17 going up from November through to 18 January 10th while discussions were 19 being held by Mr . Motzkin and Ms . 20 Blum with the Building Department 21 there wasn ' t one moment when Mr . 22 Motzkin and Ms . Blum called the 23 Hoffmanns or went over to the 24 Hoffmanns and said you know we 25 haven ' t decided what to do whether Proceedings 183 1 we are going to challenge the 2 variance or not . What we want you 3 to know that we really troubled by 4 it . It is bothering us so much that 5 we might seek a variance and 6 therefore , you know, you can build 7 at your own risk but be aware we are 8 thinking about challenging this . 9 They didn ' t do that . Had they done 10 it I believe Mr . and Mrs . Hoffmann 11 may well have decided to slow down 12 or stop and if they didn ' t it would 13 have been at their risk but that 14 doesn ' t present itself tonight . 15 The Hoffmanns had no 16 indication whatsoever from their 17 neighbors apart from having shown 18 plans to them and Mr . Motzkin and 19 Ms . Blum indicated in August they 20 were before the Building Department 21 asking about compliance hearing and 22 well before the Building Permit was 23 issued they were questioning the 24 interpretation by the Building 25 Permit but unknown to the Hoffmanns . Proceedings 184 1 Had it been known to the 2 Hoffmanns there would have been an 3 opportunity to have minimized any 4 cost involved in taking down this 5 roof replacement had it been a 6 determination of the Zoning Board to 7 do so . 8 Unfortunately , at this point 9 it is substantially complete . What 10 remains is for , I believe , plumbing 11 to be put down and for sheetrock to 12 be put up and from my understanding 13 and I believe Mr . Jakubowski has 14 been at the premises with the State 15 came in to review it . There has 16 been no construction in that area 17 since the January letter was issued . 18 There has been refinishing of wood 19 that ' s not structural improvement . 20 There has been cleaning up . There 21 has not been any structural 22 modifications . That ' s not 23 particularly relevant because 24 whatever may have been done would 25 have been at their own risk but they Proceedings 185 1 didn ' t do anything . The Hoffmanns 2 have been looking to comply fully 3 with the intention , spirit and 4 letter of the Zoning Code throughout 5 this process and are in a miserable 6 situation now having invested some 7 $ 60 , 000 . 00 into an addition that 8 they believe was fully legal and 9 permitted and now have no 10 alternative to that except taking it 11 down and constructing something new . 12 Now , it is absolutely 13 essential that you consider that and 14 all of the case law indicates that 15 it is appropriate for you to 16 consider that . In fact it is 17 appropriate for you to consider the 18 delay by Mr . Motzkin and Ms . Blum in 19 bringing to the attention to the 20 Hoffmanns that they were considering 21 to appeal that matter because it 22 imposed upon the Hoffmanns a 23 mistaken reliance on the validity of 24 that Building Permit which perhaps 25 they would have questioned had they Proceedings 186 1 had notice of extensive work that 2 was being done by Mr . Motzkin and 3 Ms . Blum while they were reviewing 4 the matter with the Building 5 Department . 6 This application didn ' t pop 7 fresh from the oven on January 10th 8 and appear before the Building 9 Department . This application has 10 been worked on for months , it shows 11 an incredible amount of weeks or 12 lengthy hours certainly , of a 13 substantial magnitude . It isn ' t 14 something that started on January 15 9th . In any event whenever it 16 started it started well before 17 January 10th and the Hoffmanns 18 should have been and could have been 19 notified of that fact . 20 We believe we conformed to 21 267 . B . We believed that there ' s 22 every equitable reason for granting 23 the variance requested here not only 24 on the side yard but the front yard . 25 There was an inadvertent Proceedings 187 1 nonconformance on the front yard 2 here when the application was made 3 for construction of the roof 4 replacement . It showed the 5 construction in this area . It 6 didn ' t compare with the 1979 7 application . It was known to be 8 meaningful at that time but this was 9 built in conformity with that same 10 Building Permit . The same now that 11 justifies and warrants the granting 12 of the side yard variance here . 13 Similarly , moreover it is 14 hard to determine what , if any , 15 impact that has on the neighborhood 16 when it results in the consistent 17 architectural line with what is now 18 the face wall of this second story 19 and which has existed for 16 plus 20 years in that location . 21 MR . CHAIRMAN : That ' s it? 22 MR . NULL : That ' s it for 23 right now any way . 24 MR . CHAIRMAN : Are there any 25 other comments from the public on Proceedings 188 1 this application . 2 MS . SUSSMAN : Mr . Chairman , I 3 must respond to several of Mr . 4 Null ' s comments . First of all , I 5 take exception to his implication 6 that my clients have acted in 7 anything but good faith . He has no 8 knowledge of the nights they spent 9 and the time they put into in 10 putting this together . He can ' t be 11 a judge of the work that they have 12 done . 13 Suffice it to say we are now 14 at February 28th and their 15 application was made . They 16 documented in their submission the 17 sequence of their knowledge of the 18 project which they have indicated in 19 writing that it was in November and 20 not before and that they explored 21 the situation with Mr . Jakubowski 22 after that point to try to 23 understand the situation as it was 24 and then proceeded when they came to 25 understand that their only recourse Proceedings 189 1 was the variance application . 2 On the contrary I can point 3 out that it is quite remarkable that 4 the Hoffmanns were able to complete 5 their construction in two months or 6 under two months . I doubt that I 7 could have been able to have my 8 construction people working so 9 quickly and I just point that out . 10 I don ' t want to impute anything to 11 it but these things are facts which 12 exists here and there is no basis on 13 which to impute bad faith but I do 14 / want to also point out that Mr . Null 15 continuously refers to this as a 16 roof replacement project and I think 17 it ' s quite obvious that it ' s quite a 18 bit more than that . 19 In fact there was non-usable 20 attic space indicated on prior plans 21 filed with the Building Department 22 that may have been some mistake 23 there but it had not been filed in 24 that way and this is thereby legally 25 the creation of usable , habitable Proceedings 190 1 space . As far as a problem with the 2 construction I note that it was 3 built apparently in accordance with 4 1979 construction standards and 5 should have been adequate to stand 6 as other structures do throughout 7 our community . I note in my 8 submission the letter that I sent to 9 the Board that there are cases which 10 indicate that a void permit is of no 11 force and effect . This permit is 12 void by the Board tonight in seeking 13 a variance that the variance is 14 required . It then has to be 15 considered by this Board as an 16 application for a variance so that a 17 Building Permit may be issued and 18 while we heard a great deal and I 19 understand that it ' s troubling that 20 this construction , the money 21 expended that does not determine the 22 question and the Board has to 23 consider that . Thank you . 24 MR . CHAIRMAN : Yes , Mr . Null . 25 MR . NULL : I think it is Proceedings 191 1 important to note that in the 1979 2 application it was not required that 3 the area in the attic be delineated 4 as being anything whatsoever for 5 zoning purposes . It was not a story 6 for zoning purposes . It did not 7 require a variance and they didn ' t , 8 they were not required to show 9 interior floor plans that would have 10 precluded them for putting a closet 11 in , for putting dividers and 12 creating new rooms and walls or 13 anything else . The use of the attic 14 as a zoning issue is not , it is a 15 building code issue . It is not a 16 zoning issue and I think that ' s 17 important to recognize as we ' ve 18 indicated the State Department ' s 19 determination says that what is 20 there as constructed conforms with 21 building code and that ' s meaningful . 22 The cases that Ms . Sussman 23 noted with regard to a Building 24 Permit being void merely relates to 25 the fact that you can ' t establish Proceedings 192 1 vested rights based upon an 2 improperly issued Building Permit . 3 We are not claiming vested rights 4 here . We are before you for a 5 variance and it is very material to 6 that variance that the applicant 7 didn ' t build as the applicant in the 8 prior deck case . 9 MS . RECIO : Miran . 10 MR . NULL : Where they had 11 built without a Building Permit and 12 yet got the variance . These 13 applicants here built with a 14 Building Permit and Building Permit 15 that was based upon the plans that 16 are the basis of the construction 17 modified from those plans they built 18 it as presented in this but no 19 allegation that they have modified 20 from the plans on which the Building 21 Permit was issued so as Judge 22 Silverman indicated in the Miran 23 determination where there was no 24 Building Permit issued and the 25 construction to remain we are in a Proceedings 193 1 situation that is significantly has 2 much greater equity and weight 3 bearing as far as it goes and that 4 merits the granting of the variance 5 here based upon all the other 6 factors as well . 7 THE CHAIRMAN : Yes , sir . 8 MR . MOTZKIN : I want to 9 respond to a number of statements 10 that were made . First , there was 11 reference to an August 31st meeting 12 that we had with the Building 13 Inspector , that ' s very peculiar 14 because we were away on vacation on 15 August 31st . I want that inserted 16 into the record , please . 17 Number two , the height while 18 it is not a specific zoning issue as 19 an absolute thing it is related to 20 this application . It is a detriment 21 to the community . The height is so 22 high that it does affect the views , 23 it affects light and therefore it ' s 24 a zoning issue . 25 MR . NULL : In accordance with Proceedings 194 1 the Zoning Code . 2 MR . MOTZKIN : The height 3 specifically yes but-- 4 THE CHAIRMAN : Excuse me , 5 please . I would really prefer that 6 you address your comments over here . 7 MR . MOTZKIN : You ' re right . 8 The specific design creates a height 9 that was unnecessary as a minimum 10 for a variance . On the issue of 11 scaffolding the scaffolding that was 12 erected now is encroaching onto our 13 property by approximately six 14 inches . 15 MR . HOFFMANN : Bullshit . I 16 am really sorry for that . 17 THE CHAIRMAN : I really 18 appreciate that . 19 MR . MOTZKIN : The scaffolding 20 is six foot scaffolding and is 21 sitting off of the existing facade . 22 You are all welcome to measure it . 23 On the issue of substantial versus 24 minimal what is shown there in 25 orange is greater than 25% of the Proceedings 195 1 total that has been proposed . 2 MS . BLUM : I have a couple of 3 very brief issues . We have dealt 4 with the issue of architecture in 5 relationship to the character 6 question posed by the State mandated 7 criteria and the designs we ' ve 8 presented were intended to deal with 9 zoning issues even though they were 10 architectural designs . What we 11 really intended to show is that 12 massing wise in terms of required 13 side yard setback that one could 14 have expanded the attic floor and 15 still conform to zoning and still 16 sloped away from the side property 17 line and that was really the 18 essential point behind those three 19 schemes . 20 I think that your first 21 determination tonight meant to us 22 that a variance should have been 23 required and that because one was 24 not we and others in the 25 neighborhood were really deprived of Proceedings 196 1 the protection that the Zoning 2 Ordinance affords and that is 3 something that we are very concerned 4 about . Yes , it is true that it is 5 built and we understand the 6 complication of that but we are 7 innocent victims too in a sense that 8 in terms of our rights not having 9 our rights protected and not having 10 had an appropriate forum to speak at 11 which is really dictated by the 12 zoning variance of the Town . 13 There was mention made of the 14 fact that there are other windows on 15 the third story levels in the 16 community , that is true but they are 17 not a 50 foot long , three story 18 vertical wall . They tend to be 19 windows that occur at the end of the 20 gable and roof and I think that was 21 it . 22 THE CHAIRMAN : I would very 23 like much to move to come to some 24 sort of conclusion because I am sure 25 we all-- Proceedings 197 1 MR . HOFFMANN : I would like 2 to apologize for my outburst . First 3 of all it is very annoying to have 4 your named dragged about allegations 5 and things that are not true but the 6 August 31st date is noted in the 7 Town Law upstairs at 11 : 30 a . m . , so 8 I guess the Town is wrong then too . 9 In either case the scaffolding is 10 five foot . It is on our property as 11 far as the scaffold goes . In either 12 case the Motzkins did a very nice 13 job . I am sorry you didn ' t take the 14 job I offered the job to you about a 15 year and a half ago . In either case 16 I would like to understand this dark 17 area was existing when they bought 18 the house . This existed when they 19 bought the house . So , they live 20 next door to a canyon . All we did 21 was modify and we acted on a permit 22 and further claim was issue . There 23 was no way in any way shape of form 24 that we tried to do anything but the 25 right thing . The only problem is Proceedings 198 1 the right thing was not done 2 properly early enough by my 3 neighbor . 4 THE CHAIRMAN : Are there any 5 other comments from the public? I 6 really only ask that you have 7 something new to add . I realize the 8 hour is late and you have something 9 new to add we will be happy to here 10 from you . Yes , please identify 11 yourself . 12 MS . McKEON : I am Christie 13 McKeon . I live on Byron Lane . I am 14 just a little confused here because 15 if the Hoffmanns decide or if they 16 are forced to take away this 17 structure and say they would 18 re-build it the way their neighbors 19 would want them to , this particular 20 neighbor , what is to say that a 21 neighbor two doors down is going to 22 say I don ' t like that structure . I 23 want you to do something different . 24 To me I just don ' t understand how 25 long this goes on for . A lot of Proceedings 199 1 these things seem very selfish to 2 me , light . Just to me it doesn ' t 3 seem there ' s any real ground for all 4 this and that ' s it . 5 THE CHAIRMAN : Thank you . 6 Yes , sir . 7 MR . GARRY : Donald Garry and 8 my wife Ann is here with me . I 9 would like to say right up front 10 that we are not the Garrys whose 11 home was displayed on the Board . 12 That is Mrs . Garry over here so 13 things are pretty more confused even 14 than perhaps they were before . I 15 rise with trepidation , I think it is 16 a lose/ lose proposition for me to 17 speak because we are good friends of 18 the Hoffmanns and good friends of 19 the Motzkins and they are good 20 neighbors . I was struck by the fact 21 that the Garry variance , this Mrs . 22 Garry ' s variance that was shown on 23 the Board was used as a precedent 24 here . 25 I used to sit on the Zoning Proceedings 200 1 Board of Appeals a good many years 2 ago and we had a rule I think that 3 such precedent should have no weight 4 as we examine various individual 5 requests for a variance but I also 6 remember that they were always 7 referred to and they seemed might 8 influence the outcome in any way . 9 Given the size and the bulk 10 of the construction of the Hoffmanns 11 and its very close proximity to the 12 Motzkins that is a precedent I think 13 that our neighborhood may be sorry 14 to have and this isn ' t just an idle 15 concern . We have lived in this 16 neighborhood for many years and 17 we ' ve watched the new families come 18 in as the old families moved out and 19 it is amazing how many times the 20 people moving in add on , construct 21 and make larger the homes they have 22 just purchased . I think in most 23 cases it probably a variance was not 24 even required . In some cases I 25 assume a variance was required if Proceedings 201 1 necessary but the thought that this 2 kind of variance given the size and 3 the proximity might be on the books 4 if Mr . Hoffmann is given the 5 variance is somewhat troubling and I 6 think it ought to be troubling to 7 our neighborhood . 8 Speaking for Mrs . Garry , this 9 Mrs . Garry , are you confused now? 10 Speaking of Mrs . Garry on Morris 11 Hill we would be dismayed if a 12 structure such as that the Hoffmanns 13 have built of that size were to be 14 built that close to our home and 15 perhaps that ' s all I can say . I 16 guess if I had to make this decision 17 and I am glad I don ' t , my feeling is 18 that the Motzkins have to be 19 protected and I think if that isn ' t 20 so that there should be a feeling of 21 uneasiness throughout our 22 neighborhood . 23 Paul , I am sorry to take that 24 side but that ' s the way we see it . 25 MRS . GARRY : I am the other Proceedings 202 1 Mrs . Garry . I am too saddened that 2 I have to speak tonight . I find the 3 whole situation has become very 4 disturbing to many residents of 5 Howell Park . We pride ourselves on 6 being an association that has many 7 group parties . We all look after 8 each other ' s kids . We care about 9 each other and I think hopefully 10 even after tonight we will still 11 continue to care . I would like to 12 add my comment in that perhaps this 13 is old fashioned of me but this is 14 what I believe in . I believe in 15 doing the right thing and a year and 16 a half ago or two years ago my 17 husband and I looked at the side 18 porch that has been referred to as 19 precedent and said we ' ve several 20 ideas . We hired an architect . We 21 came up with some plans . We 22 discussed them with our neighbors . 23 We left our plans with our 24 neighbors . We felt we ' d an initial 25 understanding . We came to an Proceedings 203 1 understanding . When we did not have 2 an understanding we all took a deep 3 breath . We gathered around my 4 coffee table . We talked with my 5 architect at our expense and we came 6 to a compromise that therefore 7 avoided the situation for our 8 neighborhood that we are all facing 9 tonight . That is not what is 10 happened here and that is where I 11 take serious exception at my home 12 and the history of my home , the 13 building of my home , being used as 14 an example . 15 It is my understanding the 16 plans were shown or the ideas were 17 discussed with the Motzkins and I 18 truly believe that if something had 19 been said to the effect to the 20 Hoffmanns please do not proceed , we 21 are deeply disturbed . Not a 22 question of legality because 23 certainly any neighbor can say you 24 think you can do this . I say I have 25 done my due diligence and I think I f Proceedings 204 111 can . I would not take that as an 2 objection . I would take that as a 3 simple question asked and answered 4 and then proceed . I don ' t believe 5 that good faith has been the rule 6 here and I am upset by it and I 7 believe that none of us would be 8 here had that been the case . 9 Therefore , if the Garry 10 example is to be used it certainly 11 is not to be used in example of what 12 has been done in this case . Thank 411 13 you . 14 THE CHAIRMAN : Is there 15 anyone else in the public in the 16 audience who wishes to make a 17 comment . 18 MS . HOFFMANN : Yes , my name 19 is Bonnie Hoffmann . I would like to 20 say that Ms . Blum and Mr . Motzkin 21 have complained that they ' ve been 22 deprived of sunlight , air and 23 privacy , however , since the 24 beginning of their arrival to the 25 neighborhood living next door I have Proceedings 205 IC) 1 never seen their windows opened for 2 air and never seen their window 3 shades have always been down which 4 indeed takes care of privacy and 5 that they act like they do not live 6 without natural light on the south 7 side of their house but all they use 8 is electrical lighting since they 9 choose to pull down their shades so 10 I don ' t understand why this is now 11 such a major issue all of a sudden 12 when it always has been one way and 13 I mean , why buy the house if you 14 have a problem with the house next 15 door being so close and I mean it 16 just doesn ' t make sense why it is 17 all of a sudden a major issue . 18 THE CHAIRMAN : Anyone else in 19 the audience . 20 MR . NULL : I think it ' s 21 important to recognize that the 22 night the Milken (ph) case the only 23 requirement for Zoning Board in 24 making a determination matter by 25 matter basis is to distinguish any Proceedings 206 ® 1 similar situations in a manner which 2 clearly gives direction . As to why 3 a determination was reached I don ' t 4 think that the Garry determination 5 or processing in any way is 6 precedent setting for this nor do I 7 think that this case would be at all 8 difficult to distinguish from any 9 future case . 10 I would hope to think that 11 there would be very few if any other 12 instances in which the language as 13 set out in the 1979 variance was set 14 in strict compliance with the plans , 15 would ever be interpreted again in 16 suggesting that other additions 17 within a given side yard could 18 proceed without further review by 19 the Zoning Board of Appeals . 20 That was decided by you 21 tonight so there is a separate 22 interpretation case of record that 23 says that that language specifically 24 doesn ' t permit any further 25 development within that given side Ow Proceedings 207 1 yard or yard area and with regard to 2 the Hoffmann situation in order to 3 get to a similar precedent fact 4 finding basis there would need to be 5 somebody else who had substantially 6 constructed pursuant to a then 7 believed valid issued Building 8 Permit . That ' s not likely to occur . 9 Again , as I indicated the 10 case that you have Miran case there 11 wasn ' t a valid issue of permit . 12 That ' s more commonly the 13 circumstances in which matters come 14 before you . If there ' s construction 15 that ' s involved or not a situation 16 where the Building Permit was issued 17 that ' s then overturned . Very easily 18 to set the Hoffmann ' s case as a very 19 unique precedent and its uniqueness 20 is the very reason that ' s it ' s so 21 troubling . If the Hoffmanns are 22 required to take down what they have 23 built I would submit that that is 24 the greater inequity in this whole 25 result then if Mr . Motzkin and Ms . Proceedings 208 1 Blum need to live next to a building 2 that was constructed and was 3 substantially constructed during a 4 period when they didn ' t say anything 5 to their neighbors about building-- 6 THE CHAIRMAN : Yes . 7 MS . BLUM : I will try to keep 8 my comments brief . If this is 9 allowed to remain we will forever 10 lose the protection that was 11 afforded us under the Zoning 12 Ordinance . If it is not allowed to 13 remain there may be recourse for the 14 Hoffmanns financially . There ' s no 15 recourse for us should it be allowed 16 to remain . The other thing I want 17 to say when we met with Mr . Hoffmann 18 in early November we did voice 19 concern about the height of the wall 20 along our property , that concern was 21 dismissed and we did not feel there 22 was a receptive audience despite 23 what was being done . I just wanted 24 to clarify that . 25 THE CHAIRMAN : Any other Proceedings 209 1 questions from the Board members? 2 Judging from the hour and the 3 amount of material that Board 4 members have I would think it 5 appropriate for us to adjourn the 6 application until our next meeting 7 and allow both counsel to provide 8 some guidance in the way of a case 9 law background and to the Board and 10 Board members have an opportunity to 11 further review all of the material 12 that has been submitted . 13 Are there any other 14 suggestions from Board members at 15 this point? 16 MR . KELLEHER : That the 17 public hearing be closed . 18 THE CHAIRMAN : I don ' t know 19 if I want to close the public 20 hearing or allow for additional 21 comments . I think if we leave it 22 open I will severely limit comments 23 only to those things that will be 24 new and in addition if other Board 25 members feel otherwise? Proceedings 210 1 MR . KELLEHER : I expressed my 2 opinion . I agree with you there is 3 an awful lot to consider . I think 4 as Mr . Garry said it is not a 5 pleasant decision to be made . I 6 think we ' ve enough to work with the 7 counter productive to continue the 8 public hearing . 9 MR . WEXLER : The only comment 10 I have of closing of the hearing 11 within the next month an alternative 12 comes up to modify the application 13 and the neighborhood should have an 14 opportunity to respond . 15 MS . RECIO : If it comes 16 modified wouldn ' t it reopen? 17 THE CHAIRMAN : In the event 18 that something greater is asked for 19 if the applicants were to come back 20 with something less than-- 21 MR . WEXLER : This is a very 22 sensitive problem . This thing is 23 built . It is very difficult . I 24 don ' t enjoy being on this side of 25 the table tonight by any means and Proceedings 211 1 our obligation is to look at this as 2 if it ' s not built from my point of 3 view . 4 MR . NULL : I would like to be 5 able to submit case law. 6 MR . WEXLER : I withdraw the 7 statement . It is very complicated 8 and it is not a fun job . 9 THE CHAIRMAN : It ' s my 10 suggestion not to close the public 11 hearing but to limit comments at our 12 next meeting only to new information 411 13 that ' s brought before the Board . I 14 would really rather not hear 15 personal opinions about what someone 16 thinks about the application other 17 than if there is some eventually new 18 information being brought into this . 19 MR . ASAK : Could I ask a 20 question? 21 THE CHAIRMAN : Yes . 22 MR . ASAK : Is it the Board ' s 23 obligation to look at this as if its 24 not built? 25 THE CHAIRMAN : Well , one of r Proceedings 212 1 the things that I asked our counsel 2 to do was which was to provide 3 Memorandum of Law to us in terms of 4 providing some guidance in terms of 5 what the law allows and does not 6 allow . It is not an easy matter to 7 resolve , if so it would be resolved s so I can ' t answer your question . I 9 hope the counsel will provide some 10 case law . 11 MR . ASAK : Can I make a 12 comment then given that fact the Q13 fact that you don ' t know the answer 14 to that . I live at 110 Carleon 15 Avenue . I guess to me there is a 16 fairly key issue and I live across 17 the street so I am affected by the 18 addition . I am not as affected as 19 the Motzkins . I obviously don ' t 20 object to it as much the Motzkins 21 do . 22 MS . RECIO : Who are you? 23 MR . ASAK : My name is Ernie 24 Asak . I live at 110 Carleon but to 25 me there is a very key issue here of Proceedings 213 1 equity and what happens if the 2 variance isn ' t granted and who pays 3 the cost of correcting what 4 "net-net" is an error that was 5 outside the Hoffmanns control , so , 6 if the issue is that the Board has 7 to look at this as if it was never 8 built that to me is a different set 9 of facts than what was presented . 10 MR . WEXLER : May I respond , 11 there is also inequity to the next 12 door neighbor to the value of 13 property to something built . I 14 think it is a question for both 15 sides of this property line and it 16 is not easy but by any means I think 17 in this case nobody wins . I think 18 as Mr . Garry said worse case of 19 eight years I have been on this 20 Board . 21 MS . SUSSMAN : If you close 22 the public hearing or hold it over 23 will you accept any written 24 submissions? 25 THE CHAIRMAN : It is my Proceedings 214 1 intention to keep the public hearing 2 open at which point in any event 3 submissions will be-- 4 MR . WEXLER : I suggest that 5 it doesn ' t come the night of the 6 meeting . 7 MR . JAKUBOWSKI : It comes the 8 week before so we can put it in 9 everybody ' s packet and be able to 10 review it . 11 THE CHAIRMAN : Did you hear 12 that? 13 MR . NULL : Yes . I would just 14 like to ask that any further 15 submissions be limited to certain 16 areas that may be of concern to the 17 Board , for instance , this issue of 18 how to address the existing 19 structure as to whether-- 20 I am concerned about having a 21 whole series of new plans and 22 drawings presented that suggest 23 other alternatives and conditions 24 which are submitted a week before 25 this meeting and I have no ability Proceedings 215 1 to respond to that . That ' s a 2 different thing I am expected to 3 respond . 4 UNIDENTIFIED SPEAKER : Just 5 as a public person here is it 6 possible that Mr . Kirkpatrick ' s 7 decision be published in the local 8 paper or is there a way to 9 disseminate the decision , the 10 information that he imparts to you? 11 MR . CHAIRMAN : We make the 12 decision . 13 UNIDENTIFIED SPEAKER : I 14 understand that but the information 15 he imparts to you that will be 16 issued at the outset of the next 17 meeting? 18 MS . RECIO : It won ' t be 19 issued at all . He is counsel to the 20 Board giving his advice . 21 THE CHAIRMAN : When you hire 22 an attorney he gives advice to you . 23 We hired him . 24 UNIDENTIFIED SPEAKER : But 25 you will be relying on that and you Proceedings 216 1 will say what that advice is at the 2 meeting? 3 MS . RECIO : That will come up 4 in the form of the basis of the 5 decision . You will hear it in the 6 decision . 7 UNIDENTIFIED SPEAKER : Thank 8 you . 9 THE CHAIRMAN : You ' re 10 welcome . If there are no other 11 questions I would like to adjourn 12 this application to our next 13 meeting . The next meeting will be 14 Thursday , March 28th . 15 Meeting adjourned . 16 (Time noted is 12 : 05 a . m . ) 17 18 19 20 21 22 23 24 25 Proceedings 217 1 2 3 4 5 CERTIFICATION 6 7 8 Certified to be a true and accurate 9 transcript of the aforesaid proceeding . 10 11 12 13 %11i4061.44241. 460.4,440.. 14 15 Melissa Barbosa , Reporter 16 17 18 19 20 21 22 23 24 25