HomeMy WebLinkAbout1996_03_28 Zoning Board of Appeals Minutes MINUTES OF THE REGULAR MEETING OF THE
ZONING BOARD OF THE TOWN OF MAMARONECK
MARCH 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
Arthur Wexler
4,511,
Absent: J. Rene Simon , 00,„
1014 11114
Also Present: John Kirkpatrick, Counsel ►
William J. Gerety, Assistant Building Inspector
Jackie Jackson, Public Stenographer �9
Carbone & Associates, Ltd. a'
111 N. Central Park Avenue
Hartsdale, NY 10530
Marguerite Roma, Recording Secretary
CALL TO ORDER
The meeting was called to order by Chairman Gunther at 8:50 p.m.
APPROVAL OF MINUTES
Upon a motion to duly made and seconded, the Minutes of January 10, 1996 and January 24, 1996 were
unanimously approved.
The Secretary read the application as follows:
APPLICATION NO. 1 - CASE 2200 (adjourned from 11/29/95; 1/10/96; 2/28/96)
Application of Barry & Susan Weisfeld requesting a variance to construct a new 6 ft. fence at the front
which exceeds the 4.0 ft. height allowed pursuant to Section 89-44D for a residence in an R-20 Zone
District on the premises located at 109 Griffen Avenue and known on the Tax Assessment Map of the
Town of Mamaroneck as Block 305 Lot 903.
Mr. Weisfeld appeared and said he was awaiting the arrival of his architect/contractor, Kevin McKenna,
and would like to present his case second on the agenda.
Mr. Gunther said, in that case, the Board would continue with the next application giving Mr. McKenna
more time to arrive.
Mr. Gunther then informed the audience that one of the Board members, Rene Simon would not be
attending the meeting this evening. If, when an application comes before the Board the applicant wishes
to hold the application over until the next meeting when all the Board members are present, let the Board
know and the applicant's request will be accommodated.
The Secretary read the application as follows:
Zoning Board
March 28, 1996
Page 2
APPLICATION NO. 2 - CASE 2214(adjourned from 2/28/96)
Application of Bernard and Betty Miller requesting a variance to construct a rear deck with a side yard of
5.5 ft. where 8.0 ft. is required pursuant to Section 89-35-B(2)(a)and would increase the extent by which
the building is non-conforming pursuant to Section 89-57 for a residence in an R-6 Zone District on the
premises located at 60 Cooper Lane and known on the Tax Assessment Map of the Town of Mamaroneck
as Block 217 Lot 475.
Bernard and Betty Miller appeared.
Mr. Gunther read a letter received this date from Mary Frohman, 621 Cooper Lane, "Zoning Board
Members - with reference to case 2215 in which Bernard and Betty Miller of 60 Cooper Lane request a
variance to construct a rear deck. This will convey to the Board my strong support and approval of this
application. It has been a good fortune of having Dr. and Mrs. Miller as my neighbors for 34 years and
the property has always been well maintained. As residents they are a great assistance to this
neighborhood, civic minded, active in the Larchmont Garden Civic Association and variably generous and
helpful. I have often sought their practical advice, and along with many others have enjoyed their
hospitality. In these changing times Bernard and Betty Miller seem to represent a strong and stable
influence here. They are generally concerned for the well-being of our community. With my thanks to
your attention in this. Very truly yours, Mary Frohman.
Mr. Gunther asked Mrs. Miller to inform the Board of their plans.
Mrs. Miller said they would like to construct a deck out of the kitchen at the back of the house, instead
of the terrace that they now have that needs repair. It will line up with the house and be exactly the same
distance from the border as the house currently is.
Mr. Gunther asked approximately how many feet down the property slopes from the back of the house.
Mrs. Miller said it slopes quite a distance and they are nowhere near the back line.
Mr. Gunther asked if it would be safe to say several feet.
Mrs. Miller said yes, it would be safe to say several feet. The house sits on a huge boulder.
Mr. Gunther asked if the deck will be not as close to the side line as the existing stone patios.
Mrs. Miller said it will not be as close, the patio goes further than the deck and will only extend the same
width as the house does.
Mr. Gunther asked if there were any other questions from the Board members or comments from the public
on this application. There being none, after review, on motion of Mr. Gunther, seconded by Ms. Recio,
the following resolution was proposed and adopted unanimously, 4-0.
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. Wexler, seconded by Ms. Recio, the following resolution was ADOPTED:
Zoning Board
March 28, 1996
Page 3
WHEREAS, Bernard and Betty Miller have submitted an application to the Building Inspector,
together with plans to construct a rear deck with a side yard of 5.5 feet where 8.0 feet if required pursuant
to Section 89-35-B (2)(a) and would increase the extent by which the building is non-conforming pursuant
to Section 89-57 for a residence in an R-6 Zone District on the premises located at 60 Cooper Lane and
known on the Tax Assessment Map of the Town of Mamaroneck as Block 217 Lot 475; 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 89-35-B (2)(a) and Section 89-57; and
WHEREAS, Bernard and Betty Miller 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 fords 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. At this corner of the site there is a reasonably steep pitch to the rear of the property
falling away from the house that does not allow the owner of the house to enjoy the full
use of their property.
2. The deck is so designed that it will come no closer to the property line than the existing
house.
3. The deck is low in nature at the point of the house.
4. 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.
5. 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.
6. 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, to construct a rear deck with a side yard of 5.5 feet,
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;
Zoning Board
March 28, 1996
Page 4
3. This decision shall be filed with the Town Clerk as provided in Section 267-a(2) of the
Town Law.
Mr. Gunther said the motion is approved, and told the Millers to see the Building Department during
regular business hours for the Building Permit.
Mr. Gunther asked Mr. Weisfeld if he was ready to present his case.
Mr. Weisfeld said he might have to adjourn the case, unless Mr. McKenna presented the Board with new
pictures that were taken.
Mr. Weisfeld asked if Mr. McKenna had submitted the additional information, pictures, etc.
Ms. Roma, the secretary said no additional information had been submitted.
Mr. Weisfeld said the last time the case was before the Board, Ms. Recio said she was going to go to the
property to review it.
Ms. Recio said she has reviewed the property.
Mr. Gunther said the first meeting was November 29, 1995, then January 10, 1996, February 28, 1996
and this evening.
Ms. Recio said Mr. Weisfeld had not appeared at all the meetings.
Mr. Gunther said Mr. Weisfeld appeared on November 29, 1995.
Mr. Weisfeld said they requested to replace an existing fence along Griffen Avenue to continue to secure
privacy and keep the existing look of the property, as the fence is old and falling down.
Mr. Gunther asked if Mr. Weisfeld wanted the Board to hear the case at this time.
Mr. Weisfeld said he would like the case to be heard.
Mr. Gunther said the case had already been read previously, and asked the applicant to identify himself.
Mr. Weisfeld stated his name and said he resided at 109 Griffen Avenue.
Mr. Wexler asked if anything else had been submitted that showed the type of fence intended for use.
At this point in time, Kevin McKenna, 343 Manville Road, Pleasantville, the architect/contractor,
appeared.
Mr. Gunther said the application contained a number of elements which were approved at a previous
meeting, and the application portion for the front fence was held over.
Mr. McKenna said Mr. Jakubowski, the Building Inspector, asked the applicant to draw the fence in the
front of the house five(5) ft. off the property line, with low planting in front, and then submitted a sketch
of that area to the Board for their review.
Mr. Wexler asked if the landscape plan had been altered.
Mr. McKenna said the applicant has a new sketch of that area.
Mr. Gunther asked Mr. McKenna to elaborate on the sketch submitted.
Zoning Board
March 28, 1996
Page 5
Mr. McKenna said the applicant will take the same fence and instead of making it an L shape along the
driveway, the applicant would like to bring it along side the property line.
Ms. Recio questioned the configuration of the fence.
Mr. McKenna demonstrated on the new sketch the configuration of the fence.
Mr. Wexler asked what the reason was for the fence.
Mr. Weisfeld said the fence exists now, and gives the him a sense of privacy. The house was purchased
about one year ago and the fence is falling down.
Mr. Wexler said he is very familiar with the area, and wanted to know how the fence would give the
applicant a sense of privacy.
Mr. McKenna said there is a fence there now.
Ms. Redo said in connection with what Mr. Wexler stated, as proposed the fence would provide privacy
only from certain directions. If you are heading from Fenimore Road towards Weaver Street, Past to west,
the fence does nothing in terms of privacy. The effectiveness is deminimis.
Mr. Weisfeld said coming from Weaver towards Old Mamaroneck Road, it is downhill, the house is set
back, and he would like to maintain some sense of privacy.
Mr. Wexler said the applicant was supposed to plant evergreens that will be much higher than six(6) feet
and give much more privacy.
Mr. McKenna said he has quite a few large trees in that area. He is trying to alleviate the car lights
coming down the hill on Griffen and shining into the kitchen.
Ms. Recio said she has gone up and down the road trying to resolve the situation, but it doesn't succeed
to the extent that the basis for the application was for privacy. Right now the applicant is not suggesting
privacy, but annoyance from light.
Mr. McKenna said the fence is needed for privacy, there previously was a fence, and he was advised by
Mr. Jakubowski, the Building Inspector, that the applicant had to reapply for that reason.
Mr. Wexler said the fence will be five (5) feet from the property line and asked what was going to be
planted in front of the fence.
Mr. McKenna said low shrubs to screen the fence, 2 ft. to 3 ft. plants.
Ms. Recio said at one point Mr. Weisfeld indicated his concern was primarily that portion of the fence
which runs parallel to Griffen, and even said he would consider withdrawing the other part of the
application.
Mr. Weisfeld then pointed out on the rendering the L shape referred to, said the rest of the fence is
completely falling down and can no longer do what was proposed indicating the configuration on the
rendering.
Mr. Wexler then asked where the 6 ft. chain link fence was.
Mr. McKenna said the fence was around the pool for safety.
Mr. Wexler asked if the applicant was going to entirely screen in the fence.
Zoning Board
March 28, 1996
Page 6
® Mr. McKenna said Mr. Jakuboswki did not want the screening to entirely cover the fence, but wanted low
plantings in front of the fence to give better visibility on egress from the driveway.
Mr. Weisfeld asked Mr. Wexler what the need was for screening in the entire fence.
Mr. Wexler said the Board receives many applications for six (6) ft. high fences, and to approve one the
Board usually requires screening. To soften the impact of the fence on Griffen Avenue, the Board would
like to see screening in front of the fence, like rhododendron starting out at 4 ft.
Ms. Recio said she had some recollection about various things said at the last hearing, and the applicant's
willingness to withdraw this portion of the application. Also,the applicant expressed doubts or reservations
about the ability to plant in that particular area because of wetlands or difficulty in planting shrubs.
Mr. McKenna said rhododendron will be planted, and the applicant is moving the fence back five (5) ft.
It was also indicated that Mr. Jakubowski had said the applicant wanted to keep the existing fence and plant
in front of it, which would be in the Town right-of-way also.
Mr. Gunther asked how many feet it was from the street side of the fence to the street itself.
Mr. McKenna said 15 ft. from the street.
Mr. Gunther asked if there were any other questions from the Board members or comments from the public
on this application. There being none, after review, on motion of Mr. Gunther, seconded by Mr. Wexler,
the following resolution was proposed and adopted unanimously, 4-0.
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. Wexler, seconded by Mr. Kelleher, the following resolution was ADOPTED:
WHEREAS, Barry and Susan Weisfeld have submitted an application to the Building Inspector,
together with plans requesting a variance to construct a new 6 ft. fence at the front exceeds the 4.0 ft.
height allowed pursuant to Section 89-44D for a residence in an R-20 Zone District on the premises located
at 109 Griffen Avenue and known on the Tax Assessment Map of the Town of Mamaroneck as Block 305
Lot 903; 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 89-44D; and
WHEREAS, Barry and Susan Weisfeld 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
Zoning Board
March 28, 1996
Page 7
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 fence affords the owners of the property privacy from on-coming car lights during
the evening time.
2. The property is a sloping piece of property toward the Sheldrake River from the street,
which makes the house visually exposed to the passing cars.
3. The fence will be erected parallel to the slope of the property and will follow the contour
of the land.
4. 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.
5. 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.
6. The strict application of the Zoning Ordinance and the Town Code would deprive the
applicants of the reasonable use of the land/or building,and the variance granted by this
Board will enable such reasonable use.
NOW, THEREFORE, BE 1T
RESOLVED, that the request for a 6 ft. fence is granted, subject to the following conditions:
1. The fence shall be as shown on the sketch submitted to the Board dated 3/27/96, which
shows a 6 ft. high fence set off the property line 5 ft. perpendicular to the front property
line approximately 32 ft. running parallel to the front property line approximately 24 ft.
2. The fence shall be screened from the public between the fence and property line with
rhododendrons, a minimum of 4 ft. high measured from top of ball, planted 6 ft. on
center and to be maintained.
3. The finished side of the fence outward, a requirement of the Town for any fence and
returning for 12 ft. perpendicular to the street.
4. The applicant shall obtain a building permit within (6) months of the filing of this
Resolution;
5. 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;
6. This decision shall be filed with the Town Clerk as provided in Section 267-a(2) of the
Town Law.
Ms. Recio said for the record she does not concur that the benefit to the applicant outweighs the detriment
to the community. This is not the fact pattern upon which the Board should be deviating from the newly
passed laws pertaining to fence requirements. The goal which the applicant states he wants to achieve,
privacy, which is what the application was based upon, is not going to be achieved by this particular
variance. Since the applicant is the one who is responsible for the design and the division of the property
Zoning Board
March 28, 1996
Page 8
to that extent, it was a self-created problem and a variance should not be granted
g ed to resolve a problem
which could have been resolved with different design schemes in mind.
The Secretary read the application as follows:
APPLICATION NO. 3 - CASE 2215 (adjourned from 2/28/96)
Application of Michele and Paul Hoffmann requesting a variance to replace a flat mansarded roof with a
gable roof with a side yard of 5.2 ft. where 10.0 ft. is required pursuant to Section 89-32B(2)(a); total side
yards of 11.7 ft. where 30.0 ft. is required pursuant to Section 89-32B(2)(b) and a front yard of 38.4 ft.
where 40 ft. is required pursuant to Section 89-32 (B)(1) and the addition would result in an increase of
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 69 Carleon Avenue and known on the Tax Assessment Map of
the Town of Mamaroneck as Block 404 Lot 613.
The matter was discussed in further detail, and the court stenographer's transcript is hereby attached and
made a part of the record.
The Secretary read the application as follows:
APPLICATION NO. 4 - CASE 2216
Application of Mr. &Mrs. Kirk Palmer requesting a variance to construct a library/playroom addition at
the front with a front yard of 28.0 ft. where 40.0 ft. is required pursuant to Section 89-32B(1) and the
• addition would result in an increase of 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 49 Carleon Avenue and
known on the Tax Assessment Map of the Town of Mamaroneck as Block 404 Lot 586.
Kirk Palmer and Rend Mueller, architect, appeared. Mr. Mueller then reviewed the plans with the Board
and explaining the addition, playroom/library which will be annexed to the living room/dining area.
Referring to the site plan, Mr. Mueller said starting on Carleon Avenue there is a 40 ft. front yard. The
building,as it is now, has a two-thirds encroachment on that section, a nonconforming condition. On the
right-hand side there is an existing porch area, which is enclosed by a fairly high wing wall and surrounded
by lower wing walls laid out in flagstone. Mr. Mueller would like go into a bigger scale, which is the first
floor plan, where the living area/dining room and porch having a wing wall an extension to the front walls
up to fascia height and also has a gate. On the rear side there will be a 2 ft. retaining wall surrounding
the porch. The existing elevation, looking at the front the lower portion,a wing wall was indicated which
is an extension to the front wall with the wing wall on the very end tapering down to an angle. Looking
at the side elevation you have a porch exit, french doors, from the living room. The proposal is that the
library/playroom would be extended exactly in the size of the existing porch, accessed from the living
room. The length of the winged wall will be maintained as well as the end wall, and the rear wall will
be on the existing foundation as well as existing walls on the porch. Looking at the elevation, from the
architectural point of view, the applicant would like to have gable length running towards the right-hand
side as well as a counter gable running with high walls, spaces and windows to provide light. The right-
hand side will have the same slope and the gable end as it appears on the whole picture of the building as
well as window combinations. The roof itself will be high vaulted space, the exterior will be stucco as
exists as well as in rough stones, and the color as shown in the pictures presented.
The Board reviewed pictures that were on file.
Mr. Kelleher asked if the present footprint will not be increased.
Mr. Mueller said the current porch will be the same footprint as the addition, and will not be increased.
Zoning Board
March 28, 1996
Page 9
Mr. Gunther asked if there were any other questions from the Board members or comments from the public
on this application. There being none, after review, on motion of Mr. Gunther, seconded by Mr. Wexler,
the following resolution was proposed and adopted unanimously, 4-0.
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. Kelleher, seconded by Mr. Wexler, the following resolution was ADOPTED:
WHEREAS, Mr. &Mrs. Kirk Palmer have submitted an application to the Building Inspector,
together with plans to construct a library/playroom addition at the front with a front yard of 28.0 ft. where
40.0 ft. is required pursuant to Section 89-32B(1)and the addition would result in an increase of 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 49 Carleon Avenue and known on the Tax Assessment Map of the Town of
Mamaroneck as Block 404 Lot 586; 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(1) and Section 89-57 ; and
WHEREAS, Mr. &Mrs. Kirk Palmer 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 fmds 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 fords as follows:
1. As it has been presented by the architect and supported by the pictures, it is a significant
improvement to the property and the neighborhood.
2. The addition comes no closer to the front yard than that portion of the current house.
3. The addition artfully incorporates itself into the house.
4. 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.
5. 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.
6. 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.
• Zoning Board
March 28, 1996
Page 10
® NOW, THEREFORE, BE IT
RESOLVED, that the subject application, to construct a library/playroom with a front yard of
28.0 ft. where 40.0 ft. is required, 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. 5 - CASE 2217
Application of Horacio Dos Santos requesting a variance to construct a new one family two story dwelling
with one car garage which as proposed would have a front yard, facing the paper road known as Van
Guilder Street, of 11.7 ft. where 30.0 ft. is required pursuant to Section 89-34B(1), said parcel being a
corner lot as therein described and, further; the September 27, 1989 variance granting construction for the
lot which has a street frontage of 67.5 ft. and a lot width of 70.0 ft. average, where Section 89-34A(2)
required a minimum lot width of 75.0 ft., must be renewed due to expiration on October 24, 1990, due
to lack of construction, on a lot in an R-7.5 Zone District on the premises located at 73 Sherwood Drive
and known on the Tax Assessment Map of the Town of Mamaroneck as Block 503 Lot 326.2.
Ms. Recio would like the record to reflect that she knows Mr. Gismondi, the architect, and abstains from
voting on this case.
Mr. Gismondi, architect, appeared representing Mr. Dos Santos who was also present. The proposal is
to construct a one-family two-story dwelling at 73 Sherwood Drive, Section 5, Block 503 Parcel 326.2.
Mr. Gismondi has an approval of a variance granted to George and Edith Realty on April 24, 1990 for a
side yard setback as well as a frontage width variance for this particular property. The reason the side yard
setback is required is because the property abuts VanGuilder Street which is a paper street. This evening
the applicant is requesting a variance for a front yard setback on Van Guilder even though it is a paper
street. Also, the applicant is applying for a variance of 2.5 ft. on the frontage as well. When the variance
was granted in 1990, it was the minimum to alleviate the practical difficulty detailed in the original
application. The practical difficulty is that Van Guilder Street is a paper street, and although normally the
applicant would have to provide a 10 ft. setback, this could be complied with by having the 11.7 ft.
setback. Because it is a paper street, which in all likelihood would never be developed into a street because
of the gradation and culverts that are in that area, the applicant feels it will be a practical difficulty if the
applicant had to maintain the 30 ft. setback. It would be impractical to allow a 30 ft. setback on a 67.5
ft. width lot having to maintain a 10 ft. side yard on the opposite side, which would only leave the
applicant with approximately 27.5 ft. in order to build any kind of a residence.
Mr. Dos Santos purchased the property in October of 1990, a couple of weeks prior to the expiration of
the variance that was originally granted to George and Edith Realty. It was purchased with the
presumption that the property was a legal lot and all variances were extended. He proceeded to wait
several years to build a residence for himself and his family and when he applied for a building permit was
unaware of the fact that the variance had not been carried, made application and was denied. The timing
was such that the variance was just about to expire prior to Mr. Dos Santos purchasing the property, and
he was never notified that the variance would not be executed. Had the applicant know that, he would have
taken a different approach.
Zoning Board
March 28, 1996
Page 11
Mr. Gunther asked if the variance was sought by the prior owner as a basis for sale of the property.
Mr. Gismondi said he believes that to be the case. He was the original architect who prepared the site plan
for that parcel representing George and Edith Realty. The site plan had a footprint of a house with
minimal setbacks and met the regulations,with the exception of the setback of the paper street at 30 ft. and
the width lot size. It was their intention to sell the property.
Ms. Recio asked if the variance requested this evening was identical to the one which had been granted in
1989.
Mr. Gismondi said with the exception of having the exact wordage on the variance that was requested for
the side yard setback from Van Guilder, the applicant pursued the variance for the frontage, 67.5 ft. in lieu
of the 70.0 ft. There was at least a 10 ft. setback on that side. The applicant did not propose to comply
with the 30 ft. front yard setbacks.
Mr. Wexler asked if the drawing presented with the application in 1989 for that variance showed an outline
of the house.
Mr. Gismondi said he had a copy of the original variance with him and reviewed same with the Board.
Because the applicants were seeking a variance and not a building permit, what they proposed was a
building envelope with a proposed house within that envelope. The requirements were 10 ft. and 10 ft.,
the house 37.5 ft. They were granted a variance based on the plan submitted.
Mr. Kelleher asked if what was going to be built in 1990 is substantially what the new applicant is asking
for now.
Mr. Gismondi said the applicant is asking for a variance on the front yard setback that will be 11.7 ft. on
Van Guilder.
Mr. Wexler said on a lot that is so narrow providing 40 ft. of required yard on a 67 ft. lot, the building
is not a desirable shape of house the Board would like to see in the community.
Mr. Gismondi said the plans submitted are before the Board, which is a modest house and fits within the
general theme of the homes. In granting this variance, the applicant feels the variance will be in harmony
with general purposes and intent of the ordinance and will not be injurious to the neighborhood or
otherwise detrimental to the public welfare. The basis for that is that most people are unaware of the fact
that Van Guilder is paper street. It looks just like a continuation of property. Whether there is an 11.7
ft. setback to the property line, the visual impact is negated by the fact that the street is not there.
Everything else can be complied with, with the exception of the frontage, which the applicant feels was
originally granted when the property was subdivided.
Mr. Gunther asked if there were any other questions from the Board members or comments from the public
on this application. There being none, after review, on motion of Mr. Wexler, seconded by Mr. Gunther,
the following resolution was proposed and adopted 3-0. Ms. Recio abstained from voting.
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 Ms. Recio, seconded by Mr. Kelleher, the following resolution was ADOPTED:
Zoning Board
March 28, 1996
Page 12
WHEREAS, Horacio Dos Santos has submitted an application to the Building Inspector,ector together
with plans to construct a new one family two story dwelling with one car garage which as proposed would
have a front yard, facing the paper road known as Van Guilder Street, of 11.7 ft. where 30.0 ft. is required
pursuant to Section 89-34B(1), said parcel being a corner lot as therein described and, further; the
September 27, 1989 variance granting construction for the lot which has a street frontage of 67.5 ft. and
a lot width of 70.0 ft. average, where Section 89-34A(2) required a minimum lot width of 75.0 ft., must
be renewed due to expiration on October 24, 1990, due to lack of construction,on a lot in an R-7.5 Zone
District on the premises located at 73 Sherwood Drive and known on the Tax Assessment Map of the Town
of Mamaroneck as Block 503 Lot 326.2; 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 89-34B(1) and Section 89-34A(2); and
WHEREAS, Horacio Dos Santos 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. This is a property which previously had attached to it a variance which expired several
weeks subsequent to Mr. Dos Santos' closing on the property in 1990. The variance
which was granted at that time was in large part a basis for him to purchase the property.
2. The variance which Mr. Dos Santos applies for is substantially in conformity with the
variance which was previously granted in that the property itself is hindered by having
two front setbacks even though one is on a paper road, but that in and of itself is another
problem which hampers the property.
3. 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.
4. 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.
5. 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, allowing construction as submitted in the application
to the Building Inspector, 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;
• Zoning Board
March 28, 1996
Page 13
2. The buildingpermit 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.
Mr. Gunther told the applicant to see the Building Department during regular business hours to get a
Building Permit.
The Secretary read the application as follows:
APPLICATION NO. 6 - CASE 2218
Application of James J. Gaita requesting a variance to convert a single family unit (apartment) to a
professional office space of 735 sq. ft., requires four (4) off-street parking spaces pursuant to Section 89-
66A where 1I/ spaces would have previously been required and where zero (0) spaces are provided for
a professional office in an R-TA Zone District;and further, the need for additional parking would increase
the extent by which the building is nonconforming pursuant to Section 89-57 on the premises located at 17
North Chatsworth Avenue, Apt. 1-C, and known on the Tax Assessment Map of the Town of Mamaroneck
as Block 133 Lot 622.
Mr. Gaita appeared and stated he is the potential purchaser of unit 1-C at 17 N. Chatsworth Avenue. It
is currently a residence, and the owner is present if the Board has any questions. Mr. Gaita plans to have
a professional office at the site during the day. Mr. Gaita has one car and will be parking there only
• during the day. Mr. Gaita had a meeting with the Traffic Committee, and the Traffic Committee said there
was no impact on the traffic.
Mr. Gunther then read the Traffic Committee memo which stated, " The Traffic Committee considered
the application of James Gaita to establish an architect office at the above address. Mr. Gaita said that he
would be the only employee in the office and that clients rarely visited the office. Also, he stated that the
building had no spaces available and that a daytime parking permit was not available through the Town.
Based upon the information provided, the committee found that generally there would only be one
additional vehicle requiring parking and therefore found no impact."
Mr. Wexler asked Mr. Gaita where he will park.
Mr. Gaita said he would park across the street at the meter parking. There is permit parking for which
he cannot apply for until he is an owner.
Mr. Gunther asked what the space is currently used for.
Mr. Gaita said it is a residence.
Ken Rosenberg, the owner of the Apt. 1-C, appeared and said he is the owner and seller.
Mr. Gaita said he had photos, but the Board had already viewed pictures in the file.
Ms. O'Keeffe said she was present because she wanted to know where the ingress was for the apartment.
Mr. Gunther said while the address is 17 N. Chatsworth, the entrance is really on Myrtle Boulevard.
When you turn the corner, you are on Myrtle Boulevard. Across Myrtle Boulevard is the Thruway and
the parking lot.
Mr. Gaita said that is correct.
Zoning Board
March 28, 1996
Page 14
Mr. Gunther asked if there were any other questions from the Board members or comments from the public
on this application. There being none, after review, on motion of Mr. Gunther, seconded by Mr. Wexler,
the following resolution was proposed and adopted unanimously, 4-0.
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. Kelleher, seconded by Ms. Recio, the following resolution was ADOPTED:
WHEREAS, James J. Gaita has submitted an application to the Building Inspector, together with
plans to convert a single family unit(apartment) to a professional office space of 735 sq. ft., requires four
(4) off-street parking spaces pursuant to Section 89-66A where 11/2 spaces would have previously been
required and where zero (0) spaces are provided for a professional office in an R-TA Zone District; and
further, the need for additional parking would increase the extent by which the building is nonconforming
pursuant to Section 89-57 on the premises located at 17 North Chatsworth Avenue, Apt. 1-C, and known
on the Tax Assessment Map of the Town of Mamaroneck as Block 133 Lot 622; 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 89-66A and Section 89-57; and
WHEREAS, James J. Gaita 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 applicant will be the sole practitioner in the office, and will have only one car during
the day at this point in time.
2. The applicant, in general, doesn't expect to have any clients during business hours in the
office therefore requiring more parking.
3. The application has been reviewed by the Traffic Commission, was found to have no
impact on parking, and there is a municipal parking lot across the street.
4. 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.
5. 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.
Zoning Board
March 28, 1996
Page 15
6. 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, for zero (0) parking spaces for an office where four
(4) are required, 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.
Mr. Gunther said the motion is carried and informed the applicant to see the Building Department for a
permit.
NEXT MEETING
The next meeting of this Board will be held on Tuesday, April 23, 1996, due to conflicts.
ADJOURNMENT
On a motion of Mr. Wexler, seconded by Ms. Recio, the meeting was adjourned at 11:40 p.m.
7a,'/ CL1
Margue ;t Roma, Recording Secretary
e
1
1 STATE OF NEW YORK
COUNTY OF WESTCHESTER sp&Iet
2 TOWN OF MAMARONECK ,',t� l.341
3 I- { • Cir
REGULAR MEETING OF Y.;,�
4 THE ZONING BOARD OF APPEALS ,
5
X
6 740 West Boston Post Road
o Mamaroneck, New York
March 2$ , 1996
8
9 PRESENT :
10 THOMAS E . GUNTHER - CHAIRMAN
PATRICK J . KELLEHER - BOARD MEMBER
11 NINA RECIO - BOARD MEMBER
J . RENE SIMON - BOARD MEMBER
12 ARTHUR WEXLER - BOARD MEMBER
13 ALSO PRESENT :
14 JOHN KIRKPATRICK - COUNSEL
WILLIAM E . JAKUBOWSKI - BUILDING INSPECTOR
15 WILLIAM J . GERETY - ASST . BUILDING INSPECTOR
16 MARGUERITE ROMA - RECORDING SECRETARY
17
0
18
CARBONE & ASSOCIATES , LTD .
19 Jackie Jackson, Reporter
111 North Central Park Avenue
20 Hartsdale, N . Y . 10530
( 914 ) 684-0201
21
22
24
25
1 2
2
MARGUERITE ROMA: Application of
3
Michele and Paul Hoffmann, requesting a
4
variance to replace a flat mansarded roof
5
With a gable roof with a side yard of 5 . 2
6
feet where 10 . 0 ft . is required pursuant
0
m 7
to Section 89-32B (2 ) (a) ; total side yards
8
of 11 . 7 ft . where 30 . 0 ft . is required
9
pursuant to Section 89-32B ( 2 ) (b) and a
10
front yard of 38 . 4 ft . where 40 ft . is
11
required pursuant to Section 89-32 (B) ( 1 )
12
and the addition would result in an
13
increase of the extent by which the
14
building is nonconforming, pursuant to
15
Section 89-57 for a residence in an R-15
16
Zone District on the premises located at
$ 17
69 Carleon Avenue and known on the Tax
0
18
Assessment Map of the Town of Mamaroneck
0
19
as Block 404 Lot 613 .
20
MR . NULL : Good evening, Mr .
21
Chairman, and Members of the Board . For
22
the record my name is William Null . I am
23
a member of the firm of Cuddy & Feder . I
24
represent Michele and Paul Hoffmann, Jr .
25
in connection with this matter . In
3
2 addition I -- I don ' t recall if you
3 mentioned the front yard variance
4 application that had been joined with
5 this as well . There is an issue that has
6 arisen at the last session regarding
7 approximately 1 . 1 foot variance for the
8 front yard to permit an existing
9 condition to remain essentially . We
10 submitted that application earlier this
>> month, I believe, March 8th or
12 thereabouts, merely to make sure that the
13 record was clear as to all of the issues
14 involved .
15 MR. CHAIRMAN : Is this the document?
16 MR . NULL : Yes , correct . We
17 recognize that this is a very difficult
18 situation, not only for you, but for the
19 community and the Hoffmanns as well .
20 MR . CHAIRMAN : The Zoning Board as
0
21 you know is an entity which is created to
22 grant relief, and not as a fact finder in
23 the essence of looking for the truth in
24 what has ended up, unfortunately, being
25 an argument back and forth on what
1 4
2 actually transpired here, but rather as a
3 Board that is beset with the authority to
4 weigh the equities , and determine the
5 benefits to the community, as against the
6 detriments to the community, with respect
7 to whether to strictly enforce the Zoning
8 Ordinance in a particular situation such
9 as this .
10 MR . NULL : What makes this
11 application all the more difficult is
12 that the building for which the variances
13 are sought are substantially constructed,
14 and was substantially constructed
15 pursuant to what was a validly issued
16 building permit that has since been
17 overturned in a prior proceeding, with
18 regard to an interpretation, in that our
0
19 March 21 submission to this Board we tried
20 to address two issues that have come up in
21 a prior hearing . One of those issues was
22 structurally whether there was any way we
23 could minimize the request for the
24 variance that had been made . And the
25 second issue was to address one of the
5
2 concerns raised by Mr . Motzkin and
3 Ms . Blum, which was the claim that light
4 and air had been affected by the
5 dimensions of this addition .
6 To help, I will illustrate what we
7 are talking about by way of trying to
8 mitigate . This is a plan that has been
9 submitted before . These are not new
10 plans . They ' ve been highlighted and I
>> will have Phillip Amicone, the engineer,
12 come up just to describe it for you .
13 I had previously indicated in my
14 letter, and in the presentation that was
15 made at the last session of this Board
16 that there is a structural member that
17 supports the roof that runs side to side,
2
18 and there are two of them . The primary
19 structural supports for this roof load,
20 and I wanted Mr . Amicone to come forward
21 if he could, to explain the problem that
22 we ' ve got in how this roof is currently
23 supported . This is just one point of
24 concern . This is the setback area that we
25 are dealing with . This side over here,
1 6
2 the height of the roof is fully conforming
3 to the Zoning Board ordinances as it
4 currently is situated . The reason for the
5 variance you probably well know from the
6 volume of documents submitted to you .
7 For the record, the issue here is
8 this area here . ( Indicating) In fact,
g just the area above the 1979 addition from
10 this point up, kind of a trapezoidal
11 shape, not the highest point .
12 Now I will turn this over to
13 Mr . Amicone to describe structurally how
14 it is supported, and what would need to be
15 done in order to remove, as much as
16 possible, from the area which is in the
17 side yard setback .
18 MR. AMICONE : Mr . Chairman, Members
19 of the Board, I am Phillip Amicone and a
20 licensed professional engineer in New
21 York State . As Mr . Null just pointed out,
22 the way the building has been designed,
23 and I will take you to the section through
24 this side of the house . This is looking
25 at the house from the side of the adjacent
7
2 neighbors who are affected by the
3 addition itself . And this is the section
4 -- just so you understand how I designed
5 it . The full height of the peak of the
. 6 roof, the ridge of the roof, because of
7 the length of the roof rafters , has to be
8 supported midway down or midway along the
9 length, otherwise this would deflect too
,o much a subject of the weight loads . And
also the way I have the design here, the
12 ceiling is supported by the roof rafters .
13 The wooden beam that supports this at the
14 approximate center of each of these two
15 lengths of roof rafters .
16 This is looking at, if you were over
17 the roof, you look into it and see this
18 beam goes all the way across, supported by
19 columns on an existing supporting wall
20 inside the building, which is on the wall
O
21 of the old garage, and the main house and
22 on the outside wall which is adjacent to
23 their neighbor ' s . That beam goes the
24 entire distance on top of these two
25 columns , and then the wall , the weight of
8
2 that beam, and the weight of the roof and
3 the ceiling that it is supporting are
4 translated down through these structural
5 walls into the foundation .
6 If we cut the roof back now and in
7 its present condition, it would require
8 removing at least approximate six feet of
9 those two beams that run perpendicular to
10 the side of the house and resupporting
1i them on columns . Now as you can see,
12 these columns would sit in about six feet
13 from the side of the house, and they would
14 be approximately twelve and-a-half feet
15 in from the front , and one approximately
16 twelve and-a-half feet in from the back,
17 which we have now, but it also sets six
18 feet in from the building itself . Since
U
19 there are no structural supports directly
20 beneath that point, we would have to build
21 structural columns or structural supports
22 to carry that load all the way down again
23 to a newly dug foundation of the house .
24 Just to give you an idea, there is a
25 floor plan of that same room of the new
1 9
2 upstairs ; this being the front of the
3 house, the side and the rear of the house .
4 This is where that beam is . This is now
5 where the columns would have to be,
6 approximately six feet in from the side
7 wall on both beams . This is where it is
8 now . This , if you carry it down through
9 the existing house, would fall well into
10 an existing master bedroom on the second
11 floor and a bedroom -- rear bedroom on the
12 second floor, and then down on the lowest
13 level on the first floor, this would be a
14 parking space in a garage and this would
15 be in the recreation room, approximately
16 twelve feet and six feet in from the
8 17 corners of both, well within the room and
18 the columns would come right down through
19 it .
20 Although there may be other
21 structural ways to do it, they would be
22 even more complicated like putting
23 together a transfer girder or a transfer
24 beam to carry out to existing walls . And
25 I apologize , if I can explain it I will .
10
2 The net result is that to remove
3 this roof now would require not only
4 removal of the portion of the roof rafters
5 on that wall which encroaches into the
6 existing side yard setback; however, what
7 it also requires is a substantial amount
8 of disruption to the existing house and
9 construction into the existing house to
10 properly support all of the weight that
11 this roof and this beam and therefore
12 these two columns .
13 MR . CHAIRMAN : One of the reasons
14 that we are now addressing this obviously
15 is because the roof addition is
16 substantially complete . Had it not been
17 the case the application clearly would
18 have been very different and this is a
19 problem that we understand .
20 MR . NULL : The situation we submit
21 to you in dollars and cents prove as far
22 as the cost detailed by the contractor
23 sheet . The contractor hired by Mr . and
24 Mrs . Hoffmann indicating that to date
25 $ 65, 000 has been spent to construct this .
11
2 These are issues and costs and we believe
3 they have to be considered . There are
4 caselaws that should be considered by
5 this Board in connection with the
6 balances , equities and determining what
7 detriment to the community as against the
g detriment by the zoning ordinance .
9 There ' s a case that has been cited
10 by both me and Mrs . Sussman, the Parkview
11 case, the case in Manhattan, in which the
12 developer built a high-rise building and
13 was ultimately required to take down 13
14 stories of the building . I think it is
15 important to try and go through the
16 details of that case in comparison with
17 this case, and I won ' t take too long . But
18 suffice it to say, there was metes and
19 bounds descriptions in the record . A map
20 visualization in the record of the zoning
21 requirements . The map that had been
22 published by the Building Department in
23 connection with that, at that time, that
24 the building permit had been submitted,
25 stated or indicated no delineation for
12
2 the setback, for the higher area and when
3 the building permit application was
4 submitted . You have a copy right there .
5 When the building permit was submitted it
6 was required that you, it was required
7 that the developer create on the plan
8 exactly where that break in the
9 boundaries were . Where the higher
10 projection apply and the lower
11 projections apply . That was done by the
12 developer and they put in a light that was
13 not the height that had been existing with
14 the metes and bounds .
15 Where the Court of Appeals reviews
16 the matter it determines that they have
17 due diligence that had been pursued by the
18 developer . And consistency between the
19 unchanged delineation metes and bounds
20 vision of that area and the matter could
21 have been determined . And it was not
22 determined and held then that there was no
23 estoppel against the municipality and was
24 able to enforce the zoning ordinance
25 independent of the difficulty imposed .
1
13
2 Now the Parkview case also stated
3 at the end that that decision independent
4 from any application by the developer may
5 have commenced against the variance .
6 This was not a variance case . That was in
7 the interpretation case and issue of
8 actual estoppel in an attempt to have the
9 estoppel sorting ordinances to bring it
to back .
11 MR . CHAIRMAN : A quick question on
12 that Parkview . It never went to the Board
13 of Standards in an appeal in New York
14 City .
15 MR . NULL : I didn ' t find the case
16 that decided that . I have and I don ' t
17 know the answer to it . But this case does
18 not address the variance issues in and of
19 itself . If you ' d like, I could point out
20 to it, that the due diligence pursued by
21 the Hoffmanns in this case would have
22 found ambiguity and inconsistencies would
23 put anyone on notice that what happened
24 before as a result of your determination,
25 and I am not, at this point, challenging
14
2 what you have said in your interpretation
3 by overturning of this building permit .
4 The reason for the overturning would not
5 have been able to be determined by
6 anything that the Hoffmanns could have
7 done , in fact, they realized on the
8 validity of that permit and there was no
9 inconsistencies . It was just as you
io determine a difference of opinion, but
1i the opinion isn ' t something that
12 documents, in a way, someone can look at,
13 and see two different things .
14 Mrs . Sussman ' s letter of this week,
15 addresses or suggests that the Hoffmanns '
16 due diligence, should have included
$ 17 asking the neighbors for their, what they
a
18 thought about what the building
19 inspector ' s thought, about issuing the
20 building permit .
21 MS . SUSSMAN : May I ask --
22 MR . CHAIRMAN : You will have an
23 opportunity to cross-examine a response .
24 Thank you .
25 MR . NULL : (Continued) She said in
15
2 this case the Hoffmanns did not pursue a
3 standard of inquiry . Their variance had
4 been properly reviewed before
5 construction was committed . I recognize
6 the jurisdiction to make determinations
7 on the issuance of a building permit as
8 jurisdictional . It is not for the
9 neighbors . I disagree with Mrs . Sussman
�o on that characterization . The Hoffmanns
i� did everything that they could or they
12 could have done in submitting the details
13 for the variance prepared by a licensed
14 engineer, reviewed over several months a
15 period of time, and made all discussions
16 with the Building Department .
17 The Building Department issued a
18 permit in November in order to close the
19 building prior to our six feet of snow
20 that ' s about to increase further tonight,
21 if the report of the weather is right .
22 The Hoffmanns closed the roof in a two-
23 month construction period, which stopped
24 on January 10th, or thereabouts , or after
25 getting notice of the application on this
16
2 appeal . At no point prior to that time
3 had they received notice or indication
4 from their neighbors , Mr . Motzkin and
5 Mrs . Blum, that they were going to seek to
6 overturn the building permit that had
7 been issued pursuant to which the
8 Hoffmanns had invested $ 65 , 000 of their
9 money .
10 We submit to you in addition to the
�i caselaw that I detailed in my letter of
12 January 21st a landscape architect
13 analysis of the impact of the addition, if
14 any, of the Motzins ' and the Blums '
15 adjacent cutting garden . Mr . Louis Fusco
16 is here tonight, a landscaper architect
17 and I would just like him to come forward
2
18 for a second .
19 L OUIS F U S C 0 , landscaper and
20 architect .
21 MR . NULL : Your address please .
22 MR . FUSCO : 22 Woodland Road, Pound
23 Ridge , New York . I was asked by the
24 Hoffmanns specifically to take a look at
25 the new construction that was built, and
17
2 how, what impact it may have to the
3 adjacent perennial garden, on their
4 neighbor ' s property, which is to the
5 northeast of the construction .
6 I visited the site on a sunny day,
7 it was actually March 14th, and I watched
8 the sun angle, from approximately 10
9 until 12 : 30 on that day . The garden is
10 located to the north of the house, the
11 angle of the sun being in the winter is
12 closer to the sky . The way the sun
13 traveled over the sky at the worst point
14 during the winter months as we approached
15 the spring and summer, the sun is almost
16 directly overhead as it compares to
17 following the southern hemisphere of the
° 18
sky .
19 Basically you would have no shade in
20 your winter months . During the time
0
21 period that I was viewing the property the
22 sun angle was at its worst situation,
23 nearly approaching the perennial bed and
24 partially was shaded adjacent to the
25 driveway . I would imagine from the
18
2 natural flow of the sun in November and
3 December it would be an additional shade
4 reaching possibly over the perennial
5 garden . They do not grow in November and
6 December . There is no concern for that
7 time of the year .
8 In the summer months , however, in
9 the middle of the day, there may be some
10 shade over the driveway area . The impact
11 from the construction of the house, the
12 main reason and the reason why we ' re here
13 is that there is an existing 80 foot -- 48
14 caliber oak tree over the house .
15 Essentially that tree is going to shade
16 that entire side of the property . For at
$ 17 least half of the day and then once the
18 sun has passed, that tree, there ' s an
19 additional problem, the 60 foot tree on
20 the neighbor ' s property, that will shade
21 the rest of the afternoon sun light from
22 the point I made recommendations . I
23 noticed certain limbs on the oak, on the
24 Hoffmanns ' front, that could be cut, that
25 would open up an extensive amount of sun
19
2 back down onto the neighbor ' s property .
3 I also noticed certain perennials
4 that will take a dimensional type of
5 shade, if she chooses to grow them there .
6 You could grow some things there in a
7 shade environment .
8 The impact of the structure, since
9 that is the concern to me , is that most
io minimal during the summer months . During
ii winter months there might be some portion
12 of the property, if you take into
13 consideration, just now hearing the case,
14 at this particular angle, this entire
15 portion of this roof ( indicating) and cut
16 this portion off and leave this , the
17 increase of the sun or shade is not quite
2
18 as substantial . It is almost not even a
19 factor .
20 MR . NULL : Describe what you were
21 pointing at please for the record .
22 MR . FUSCO : I was pointing to the
23 portion of the construction that would
24 require the variance . The setback
25 requirements that is needed right now .
1 20
2 MR . NULL : Thank you .
3 When you were talking about the
4 pruning of the trees , we spoke outside,
5 before this meeting, is the amount of
6 light affected by the roof, where you were
7 at, the house, prior to the roof addition?
8 MR . FUSCO : Yes .
9 MR . NULL : Would pruning of the
10 trees be necessary to address the impact
11 from the roof?
12 MR . FUSCO : No , it is my feeling
13 that the pruning of the trees would need
14 to be done to grow perennials . Mr . Null ,
15 as you know --
16 MR . WEXLER : I was passing this
17 house yesterday about 2 : 30 in the
2
18 afternoon and the shadow that was cast was
19 up to the side of the adjacent house . I
20 was there about 2 : 30 yesterday afternoon .
21 MR . FUSCO : Sunlight was where?
22 MR . WEXLER : A little below the
23 sunroom.
24 MR . FUSCO : At that point?
25 MR . WEXLER : Yes .
21
2 MR . FUSCO : That last shadow I
3 viewed was approximately 12 : 30 and it was
4 barely there, it ' s just beyond the
5 driveway at that time .
6 MR . NULL : It moves around about
7 2 : 30 it comes over the house?
8 MR . FUSCO : Over the house .
9 MR . WEXLER : That I just noticed,
10 because I was going by there, going back
11 to my office, it was about up to the
12 ceiling of the adjacent house .
13 MR . FUSCO : That would give the
14 current angle of the sun at that time of
15 year, what would you give that location of
16 shadow, what would you anticipate of that
17 effect, after the sun would be during --
18 MR . NULL : With that, given the
19 current angle of the sun at this time of
20 year, what would you, given that this is
21 this location of shadow, what would you
22 anticipate the effect the sun would have
23 during the growing season?
24 MR . FUSCO : It is going to
25 definitely shorten, I would say at least,
1 22
2 it could be about six to ten feet closer
3 to the driveway . I was just noting --
4 there is a point because the sun is
5 running almost diagonal across the roof
5 line creating a shade of the house on that
7 diagonal line, there is always going to be
8 a . far point of the house, which will
9 extend out further which may actually,
10 well what you ' re seeing once you get to
11 that point, if you ' re watching the
12 shading as it approaches , over the trees ,
13 are blocking out far and beyond the entire
14 house, at this point is my concern .
15 MR . CHAIRMAN : That might very well
16 be --
17 MR . NULL : The issues we are well
2
18 aware of, the roof, the roof would be
19 casting that shadow, the area is subject
20 to variance or not . We recognize that had
O
21 to come before you in a designing stage,
22 rather than construction stage, that the
23 Board might have considered a different
24 height of the roof . Even though the
25 height is not a variance issue, before
1 23
2 you, the concern that we got right now, is
3 that the height is not one of the variance
4 requested .
5 Unfortunately, in order to modify
6 the roof there is an inability to modify
7 the roof in a meaningful fashion without
8 the structural modifications indicated
9 there . Maybe some shadows are cast by the
10 higher point of the roof . This section
11 here ( indicating) that there is on an
12 angle . The variance at issue, as I said,
13 we submit dollars and cents for proof .
14 Section 267 (b) of the Town Law, I
15 know you are well familiar with, just to
1s walk through briefly on them . The issues
17 are whether or not undesirable changes
18 provide character of the neighborhood or
19 detriment to the nearby property .
20 In this instance as you well know
21 and not the determinative fact that 60
22 neighbors are writing in in support of
23 this application, as well as support at
24 the variance hearing . You have the names
25 and the letters of the neighbors . The
1 24
2 letters by those that indicate a
3 detriment to the properties suggested by
4 responses from those who are neighbors in
5 the nearby properties , I would submit
6 that support will not be determinative,
7 which you may come out on this ,
8 indicative of certain attitudes toward
9 the existing construction remaining . The
10 character of the neighborhood is such
11 that there are three-story tall
12 structures in the area . We delineated at
13 the last hearing also -- there are also
14 two-story structures . There is no real
15 consistency as a manner of being able to
16 identify a type of house, or a height of
17 a house that is there . Even though the
18 Motzkin home has a third story window in
19 the peak of its roof, this is not higher
0
20 than what the zoning ordinance permits .
21 The variance we ' re talking about is a
22 variance that would extend out to this
23 third level window, the side yard, in an
24 area no further or closer to the Blum
25 home , then extending to the side yard of
1 25
2 the home, that is not only what had
3 existed in 1977 as a non-conforming side
4 yard, as well in the 1977 variance the
5 building permit permitted the second
6 story and the mansard roof addition was
7 included in it .
8 So we are not extending within that
9 side yard any closer than we had when the
10 building already existed or sat before
this addition was constructed . What
12 we ' re recognizing is that we are going up
13 higher within that area . Having invested
14 $ 65, 000, in fact $ 85, 000, in the building
15 without counting the extra invoices with
16 regard to the scaffolding and the down
17 time, that the contractor has had, which
18 is a substantial amount, additional
19 invoices , between the time that I
20 submitted my letter to you and this Board
21 meeting . There is a lot of money being
22 spent here and it would cost the
23 contractors an estimate of about $20 , 000
24 to remove this structure .
25 There is a substantial cost involved
1 26
2 here as a question of what other method
3 could the applicant achieve, giving the
4 current posture -- There is no other
5 posture . We need a variance . There is no
6 way to modify this in order to eliminate
7 the need for a variance . Whether the
8 variance is substantial , I submit, we are
9 not coming closer here, because we are not
10 affecting the side yard distances any
11 more than already existed, and because it
12 is necessary to structurally support this
13 roof load on a vertical exterior wall , we
14 have supports running from the living
15 space , garage as well as the back and in
16 the recreational family room downstairs .
17 The variance is not substantial in
18 relation to the existing side yard . It is
19 an area that really this distance here
20 ( indicating) , here and over here, the
21 trapezoidal area . I know Mr . Motzkin and
22 Ms . Blum characterize it as being
23 certainly substantial , but on that, the
24 important issue is that the balances have
25 equities .
27
2 The most unfortunate thing is that
3 while this was being built, the Hoffmanns
4 had no understanding, no notice , or no
5 indication that they should do anything
6 but go forward and build it pursuant to
7 the building permit that had been issued .
8 We are now stuck in a situation, we are
9 trying to figure out what to do . We can ' t
10 do the Solomon baby situation of
11 splitting the baby . This roof can ' t be
12 split . Unfortunately, this decision of
13 devisiveness (ph) that has been evidenced
14 by this whole proceeding is something
15 that is not going to be able to end
16 tonight, or whatever the decision is ,
17 it ' s something that everyone is going to
18 have to live with and I know that ' s your
19 burden in having to balance the equities
20 here .
21 Mr . Fusco ' s report indicated that
22 there is miminal, if any, impact by reason
23 of this roof addition, that the roof
24 addition area that affects the light is
25 not the area that is the subject of the
28
2 variance and in fact, if the Hoffmanns
3 trim this 80 foot tall tree which we would
4 not like to do, it would increase the
5 light, and the Hoffmanns as well would be
6 willing to pay for the trimming of the
7 Motzins ' and Blums ' tree that would open
8 up light on that side as well . I
g recognize that ' s for you to decide . I
10 offer that as a possibility .
>> The other question is whether the
12 alleged difficulty was self-created and
13 shows relevance to the Board . Should you
14 not decide to preclude granting of the
15 area this is not a self-created hardship,
16 it ' s not because there was no awareness
17 that there was a creation of any hardship .
18 This is a problem that arises in
19 connection with needing to replace a
20 failing roof structure, a leaky roof
21 structure that was not serving its
22 purpose, that needed to be served, and
23 what was proposed, a patch to roof to
24 replace or to avoid the problems .
25 This particular roof has that
29
2 particular type of problem. It was merely
3 a correction of a problem fully within the
4 zoning ordinance and understood at that
5 time . Not by Mr . and Mrs . Hoffmann, but
6 by Mr . Jakubowski , of the Building
7 Department as well .
8 I would submit under Section 267 (b)
9 of the Standards , I submit that this
10 variance , and in fact, the variance for
11 the front yard, as well , which I guess I
12 should discuss somewhat .
13 There are two aspects to the front
14 yard. In 1979 it was approved (the master
15 bedroom) , it was discussed at the last
16 hearing, it was discussed the front wall
17 was in line with the existing front wall
18 of the house . It wasn ' t known until just
19 last month or so that that, in fact, was
20 inconsistent with the variance that was
21 granted as Mr . Jakubowski had determined .
22 I believe that date coincides with the
23 date of the last meeting .
24 The area of the roof addition, that
25 was constructed above that portion of the
1 30
2 master bedroom, becomes flush with the
3 wall . The 38 . 5 feet back setting against
4 the 40 foot 1 . 5 foot variance as against,
5 the 40 foot requirement, the existing
6 garage had been set back in a manner which
7 was , which was not the entire amount or
8 section to legalize that current
9 condition, and we submit that the
10 variance felt, is minimal , the variance
11 in connection -- in context of the front
12 yard setback . Thank you .
13 MR . CHAIRMAN : Are you finished,
14 Mr . Null?
15 MR . NULL : If I can have an
16 opportunity?
17 MR . CHAIRMAN : Let me just tell you
18 how I would like to proceed . I ' d like to
19 allow the Board Members to discuss this
20 matter, the questions they have on their
21 own, and it ' s open to the public at this
22 time . Anyone who has something to say or
23 their feelings , feel free to do so . I
24 will , however, cut people off not
25 intentionally, but in the spirit of
31
2 trying to move this case along . If
3 someone has something now to say, we ' ll be
4 happy to hear it . I think we have spent
5 sufficient time on this application and
6 it covered everything . Thereafter, the
7 Board will close the public hearing and to
8 deliberate and we do all our
9 deliberations in the open so feel free to
10 say and listen to our discussion . Thank
11 you .
12 MR . NULL : Will I have an
13 e opportunity to respond?
14 MR. CHAIRMAN: Yes, before we close .
15 I have a couple of questions for you .
16 MR . NULL : Sure .
8 17 MR . CHAIRMAN : You made mention of
2
18 the fact in your discussions in covering
19 the requirements for the variance, I
20 guess , there are five general ones . You
0
21 covered in detail most of them. One of
22 them had to do with fees and the amount of
23 money spent . First you said in your
24 discussion earlier -- you said in your
25 discussion earlier it would be
32
2 approximately $ 65, 000 had been spent to
3 construct the existing structure, and
4 additional funds were needed or to be
5 expended in the neighborhood of $ 80 , 000 .
6 MR. NULL : The contract amount owed
7 is approximately $ 85, 000 , the amount of
g out-of-pocket already paid is $ 65, 000 .
9 Also an additional $ 9, 000 extra invoices
10 as a result of the delay in completion and
11 the scaffolding that was not set out in
12 our letter of the 21st because we did not
13 have them at that time .
14 MR . CHAIRMAN: My point is after the
15 discussion, there was an amount that was
16 originally submitted to the Building
17 Department, the value, the proposed
18 worth, was $ 45, 000 , and the permit and
19 price was all paid, actually it was based
20 upon the owner ' s estimation of the value
21 of the work .
22 Why is it that the work was supposed
23 to be $45, 000, it is now $ 85, 000 . I don ' t
24 know what the real number is but secondly,
25 it is higher than what was originally
1 33
2 purported to be the value of the work that
3 was given to the Building Department .
4 MR . NULL : I believe there was an
5 estimate in July prior to the
6 commencement of the work . November 7 ,
7
1995 .
8 PAUL HOFFMANN , 69 Carleon
g Avenue, Mamaroneck, New York .
10 MR. HOFFMANN : During the course of
11 July and August and September we received
12 bids that were substantially higher than
13 $ 45, 000 discussed in the original
14 application . This was passed on to
15 _,:iur: We received a bid of
16 $28 , 000 from Joyce (ph) Construction
2
17 located in Brooklyn, New York . They
18 included only certain parts , the Murphy
19 Brothers gave a quote of about $ 42 , 000 to
20 $43, 000 which I signed an agreement of the
21 $ 43 , 000 .
22 I believe Mr . Jakubowski also agreed
23 that later on in the future when the job
24 is done the total cost would have to come
25 up, the total cost of the project which
1 34
2 will be done in the future . In either
3 case the money spent can be proven by
4 cancelled checks .
5 MR . CHAIRMAN : Another question I
6 have for you, one of the requirements to
7 cover is what is undesirable with the
8 change, the character of the agreement or
9 the detriment to the Board, what would it
10 create as of that variance? Could you
11 address the latter part of that . The
12 detriment to any nearby properties and
13 don ' t address those people who wrote and
14 said I don ' t have any problems with that,
15 but address the people who said that they
16 do object to it .
17 MR . NULL : Most of the people who
2
18 wrote and had an objection to it had an
19 objection to the size of the addition .
2 20 The height itself is not the variance
21 sought in this case . The height has
22 nothing to do with the variance itself .
23 The question is whether the area, the
24 trapezoidal area within the side yard
25 itself, it is set back there from the
35
2 Hoffmann side roof would -- what existed
3 prior to the construction of that
4 Hoffmann side of the roof, within this air
5 space above, whether it creates a
6 detriment to the neighbors . That is why
7 Mr . Fusco testified upon his evaluation
8 of the situation instead of having a
9 mansard piece on the roof, that goes up
10 approximately two feet, as a sort of a
11 design . We have an approximate 9 foot
12 vertical wall that is within the side yard
13 setback that does not affect the light at
14 that point .
15 What is necessary structurally is
16 that this has been designed in a manner
2
17 that we submit is common and consistent
18 with the design of the house . Then the
19 mansard roof, and the design of the
20 building has been implemented in a way
0
21 consistent with the trapezoidal , the
22 stucco and the roof shingles .
23 MR . CHAIRMAN: I am not asking about
24 the value to your application . What I am
25 asking and I guess you answered me by
1 36
2 saying you don ' t see any detriment to the
3 neighbor by adding the vertical wall .
4 MR . NULL : The neighbor to that side
5 has a higher vertical wall .
6 MR . CHAIRMAN : Is there a detriment
7 to that neighbor, in your opinion,
8 because of that?
g MR . NULL : I don ' t believe so .
10 MR . CHAIRMAN: To the value of their
11 property?
12 MR . NULL : I don ' t believe there is .
13 I am not qualified to answer and to
14 evaluate, but the point is that no way
15 encroached upon --
16 MR . CHAIRMAN : I asked is the
17 detriment to the property to that side,
18 that ' s all I asked you .
19 MR . NULL : No, I do not believe so .
20 MR . WEXLER : I have a very specific
21 question, Mr . Null . You suggest that the
22 encroachment on the side yard, that
23 trapezoidal in that zone, in that
24 elevation runs the length of the house, I
25 still read this -- in Article 15 of the
37
2 Zoning Ordinance, there have to be two
3 criteria for the side yard setbacks .
4 Criteria number one has to be at least ten
5 feet -- the yard -- greater than that --
6 that is the sum of the two side yards
7 cannot be less than 30 feet . The answer
8 that was given to me last time by the
9 building inspector was that because there
10 is a setback in the back of this house,
i� therefore you have this five foot or you
12 don ' t need to meet 30 feet requirement
13 because it ' s such a huge projection to the
14 back of the house . The yard goes from the
15 front yard to the rear yard up to the sky,
16 this house has a 6 . 5 foot setback on the
2
17 left side . It has an existing 5 . 2 foot on
18 the right side to add up to 10 feet . If
19 you apply the two side yard requirements ,
20 you would have to have a 25 foot setback
21 to meet this code .
22 MR . WEXLER : There is -- I asked
23 this question last month and it has a
24 bearing on what is now not legal and what
25 is interpreted from the two requirements
1 38
2 for the setback . The part that is not
3 legal is greater -- Mr . Patrick, I 'm
4 missing something here .
5 MR . CHAIRMAN : The point that you
6 gave according to Mr . Jakubowski about
7 the relation with the rear yard I don ' t
8 understand .
9 MR . WEXLER : No , the side yard . I
10 understand you to be saying that the last
11 time the answer was because the rear yard
12 was larger -- that in some cases looking
13 at the side this measurement, is much
14 greater to a projection, in the back --
15 he ' s taking this side yard and adding this
16 side yard -- if you take a straight line
17 through the house -- this is the only two
18 side yards and you have another -- those
19 requirements --
20 MR . CHAIRMAN : I don ' t understand
21 what you ' re saying .
22 MR . WEXLER : I am trying to say the
23 10 foot setback is not the thing that ' s to
24 be shared . The sum of two --
25 MR . NULL : But then --
1
39
2 MR . WEXLER : Mr . Null , let me
3 finish . It is not just 10 feet .
4 MR . NULL : We are not increasing nor
5 are we decreasing . We have got an
6 existing non-conforming yard .
7 MR . WEXLER : You ' re coming for a
8 variance . You have to be as of right, you
9 have as of right construction . You went
10 in a variance, you now have to tell me
11 your variance from as of right, from the
12 Zoning Board, that is what
your variance
13 is asking for; is that correct?
14 MR . NULL : We '.re not affecting one
15 side yard at all .
16 MR . WEXLER : But the code is very
17 clear . There is some impact, the sum of
18 those two sides , impact, what is this
19 building doing on this lot with respect to
0
20 space and houses .
21 MR . NULL : You have to take the
22 existing sum as the measurement against
23 which I am now seeking a variance .
24 MR . WEXLER: That is correct .
25 MR . NULL : The trapezoidal area
40
2 above this ( indicating) which I am now
1
3 getting to, right off this , if I accept
4 your argument on the yard, which I don ' t,
5 but if I did, the area above where we did
6 have to run an addition, is now -- and in
7 so doing it now combines the yards . That
Y41
8 area then ig occupied .
g MR. CHAIRMAN: If you had 10 feet on
10 the other side, assume you had 10 feet on
11 the other side .
12 MR . NULL : Right .
13 MR . CHAIRMAN : You would have to
14 have a 20 foot side yard set back there
15 because the minimum is 10 feet and some of
16 this two or three feet would have to have
17 a 20 yard -- 20 foot setback there, not a
2
a 18 10 foot setback.
1
G ..
19 MR. NULL : Yes .
20 MR . WEXLER : This trapezoidal area
21 here .
22 MR. NULL : I have a combined setback
23 that ' s less than the 30 feet .
24 MR . WEXLER : That ;is not as of
25 right --
t 41
ICI2 MR . NULL : It ' s a little non-
3 conforming which --
4 MR . CHAIRMAN : We were very clear
5 about that . Let ' s get to that . Your
6 question is does the ordinance require --
R7 you have the two side yards to 30 feet,
8 and the variance notice is for that also,
9 for one side yard, and the two side yards
10 added .
tt MR. WEXLER : With that understanding
12 what would be the required yard on this
13 side?
14 MR . CHAIRMAN : The requirements --
15 as I see it here is 10 feet, one side yard
16 can be 10 feet .
17 MR. WEXLER : But it has to meet both
18 conditions , if you don ' t meet on either
19 side you subtract the other side from 30 ,
20 that is required on this side .
21 MR . CHAIRMAN : What, on this side?
22 MR . WEXLER: In this case six and-a-
23 half -- the non-constructed side of the
24 house . That trapezoid shape up there
25 would have to be brought back
1 42
2 tremendously to make the zone .
3 MR . CHAIRMAN : As I understand it,
4 the part you ' re saying is that the
5 variance that is being requested is not
6 from five and-a-half feet to ten feet
7 solely, it ' s also that -- if you were
8 deleting the requirements given the other
9 side , the house setback is six feet .
10 You ' re asking for a variance of five and-
11 a-half, from twenty- four to five and-a-
12 half, yes , I follow your logic .
13 MR . NULL : No, it would not be that
1- 19 feet or 18 . 5, I have got five and-a-
15 half, I have -et six and-a-half, so I have
16 got 11 combined even though --
17 MR . CHAIRMAN : A combined 30?
18 MR . NULL : 30 as against the 11 that
19 I have got, the 12 I got, I have got to
20 give five and-a-half on this side and six
0
21 and-a-half on this side which combines
22 the 12 right where I got the 30 .
23 MR . WEXLER : You have a benefit --
24 if you start from scratch, 10 foot side
25 yard, one side 20 foot , the other to meet
43
2 the code, right?
3 MR . NULL : Right, but I have an
4 existing side yard that is -- okay . I
5 don ' t have to get 10 there . If I take
6 what you ' re measuring by the combined
7 side yards of 30 I have a six and-a-half
8 on one side and five and-a-half on the
9 other side so I have got 12 . So the
to measurement isn ' t 20 something . The
11 measurement is the difference between 30
12 and the 12 , which is 18 .
13 MR . CHAIRMAN : And from the front
0u add :pother si . and-a-half, that
15 is the 18 feet from your setback now .
16 MR . NULL : Why would you say that .
17 MR . CHAIRMAN : Could we agree that
18 the setback is more than five feet the
19 variance needed on one side yard and two
20 side yards?
21 MR . WEXLER : Right . Let ' s
22 demonstrate here how the impact of the
23 addition has on the neighboring property,
24 based upon the existing back required
25 from the attempt of the setback from the
1
44
2 property line, that ' s not the case in this
3 instance, the setback is almost --
4 MR . CHAIRMAN : I understand your
5 point .
6 MR . WEXLER : The impact is much
0
7 greater than the presentation . This has
8 a bearing on anything we do in other
9 cases . I 'm trying to assume that the
10 setback there in this case is that at
11 least 20 feet but probably 24 feet .
12 MR . CHAIRMAN : How is the setback
13 roughly six feet from the opposite side,
14 so therefore it has to be set back 24 feet
15 on this side .
16 MR . WEXLER : Yes .
3 17 MR . CHAIRMAN : I agree with you . I
O
18 have no further questions .
19 MR . NULL : What we ' re looking at is
20 that except that you seek to measure
21 further into this area we still have the
22 same problem of trying to cut back this
23 roof load, we had a roof at this height,
24 a mansard roof, that we ' re looking to
25 replace .
1
45
2 MR . WEXLER : I ' m just trying --
3 MR . NULL : I don ' t agree with the
4 way you calculate . We ' re still providing
5 five and-a-half feet on one side and you
6 have got to give credit to that . We ' re
0
7 getting into semantics and then I will
8 drop it .
9 MR . WEXLER : That ' s what I ' m doing .
10 MR . NULL : It is most unfortunate .
11 We really have to choose about what we ' re
12 looking at, to accept or remove part of
13 this situation . We have looked at
14 alternatives and there is no feasible
15 financial alternative to doing this , in a
16 way, that would even preserve the portion
17 of the roof, and be able to try and reduce
O
18 the angle within the side yard . We have
19 had estimates on this as well and it would
20 cost approximately $50 , 000 to proceed
21 with that and I have written estimates
22 with regard to that . I will submit them
23 later this evening .
24 MR . CHAIRMAN : Are there any
25 questions of the public with regard to
46
2 this application?
3 MS . SUSSMAN : My name is Marianne
4 Sussman . I would like to just direct us
5 back to a moment to where this application
6 started . It is described as a project to
7 repair a leaky roof . And it is accepted,
8 which it has come in now as a span of a
9 wall , running 50 feet along the 5 foot
10 setback as well as the roof itself . And
�i as Mr . Null has analyzed where we are now,
12 we are considering this thing because
13 it ' s fully existing and there ' s no
14 alternative to its present existence .
15 What we really are here for is the
16 hearing of the variance application as if
17 there were a new construction . I admit
18 there has been substantial monies
0
19 expended . What their question is of the
20 line, questions of due diligence , but we
21 are really to look at this and I submit
22 your Board look at this and interpret the
23 standards for a variance as these are
24 reflected in what was sought to be
25 accomplished and what the project was
t 47
2 supposed to be . From the beginning I
3 think there has been testimony about no
4 other alternatives . We ' re talking about
5 alternatives to the original project or
6 possibly to alter that project to
0
7 construct or remove some parts of it and
8 of course we understand, we have been told
9 at this point that there are other
to alternatives .
tt I would like at this point to
12 introduce Kathleen Dunne, a construction
13 engineer, who has no bearing in this
14 lawsuit . I ask her to please step forward
15 and to address the Board .
16 MS . DUNNE : My name is Kathleen
17 Dunne . I am a partner in the firm of
18 Dunne & Marcus . Good evening, Mr .
19 Chairman, Members of the Board .
20 Ms . Blum and Mr . Motzkin have asked
21 me to look over the original plans from
22 the Hoffmanns ' residence and address two
23 issues with you tonight . One is to tell
24 you that I did have access to some
25 drawings that they had done of the
t 48
2 original drawings of the house and some
3 drawings of the possible alternatives to
4 the roof construction that could have
5 been built there .
6 If the original intention indeed was
7 to solve the problem of the roof that
8 currently existed of the scheme that they
9 did show me and I know they were for
to specifically there certainly were
tt constructional ways to support the design
12 they had shown on those . The construction
411) 13 that is currently in place indeed has a
14 series of beams and columns bringing
15 loads down to the bearing wall that ' s
16 existing at the structure , but I also had
17 occasion to look at those plans and to
18 look at the proposal for cutting back the
19 roof to one that more conforms with the --
20 now you got me caught up with the variance
21 -- I guess to work in this construction .
22 I did -- I agree with Mr . Amicone cutting
23 down in this existing space or this series
24 of columns would be a horrible intrusion .
25 What is indeed true about this house at
t 49
111 2 the line of the trapezoidal ceiling there
3 is a 12 inch existing structure, a 12 inch
4 dimension lumber I don ' t think to come
5 down with any point load in the plan of
6 that floor and make transfers is that
7 difficult a task to do structurally. With
8 two steel plates , two pieces of wood with
9 a piece of steel sandwiched in between the
to members of such the cost could easily
tt carry the roof load involved here .
12 Part of the problem with the
13 particular design you not only have a roof
IOW
14 load, you also have a full third floor
15 load that would also need to be addressed
is structurally . So it does add up to a
17 reasonable amount of structure but again
18 I think that between switchplates or
0
19 additional lumbers it could transfer the
0
20 load from coming down currently on the
21 roof to the exterior wall that could carry
22 the load .
23 The original construction in very
24 many other ways to frame the exact same
25 thing . I have been in practice for 17
50
2 years . I know you have my C . V . so I know
3 besides being a professional engineer I
4 am also a registered architect . My
5 specialty is design . I have done many
6 houses within the last eight years alone,
7 over 300 houses .
8 There are very many alternatives how
9 you would frame a roof of this structure .
io With the type of manufacturer ' s lumber
available today that are suitable today
12 are the type of spans that we ' re talking
13 about on the roof rafters are easily
14 accomplished in the manufacturer ' s
15 lumber . The gravity of the dimension of
16 the problems of the standards , as we call
17 them, the two by eights , the two by two ,
18 the two by ten or the two by twelve using
19 manufacturer ' s lumber, it ' s spans that
20 are available to be built are much
21 greater . I think there are plenty of ways
22 this could be framed . In my practice when
23 I work with other architects we go through
24 several variations or any schemes that
25 they come up with before we come up with
1
51
2 a scheme for what we will produce . I
3 think that is all I have to say about it .
4 There were other methods for the
5 original -- I feel that it could easily be
6 accomplished to transfer the load here .
0
7 Thank you .
8 MS . SUSSMAN: Any questions? Do you
9 have the alternatives that the Motzkins
10 and Blums prepared?
11 MS . DUNNE : Yes , I do .
12 MS . SUSSMAN : Could you describe in
13 what way those could be constructed in
14 order to accomplish the support of the
15 roof, the gable roof, within the setback?
16 MS . DUNNE : Sure . I think in this
17 section the blue plan girder that is
18 currently going from the support wall to
19 the exterior wall -- if the roof slope is
20 changed in any way in this plate, the load
21 at the point where it transfers down
22 through the first floor to the second
23 floor at this point there is a one foot
24 structure available that goes from
25 bearing wall to bearing wall . We are not
1
52
2 talking about the possibility of
3 additional blue plan members , or
4 switchplate beams which are strong, I was
5 putting them at this plane and alleviate
6 the need to go anywhere in this existing
7 house and if any design we try to avoid it
8 if at all possible .
9 MR. WEXLER : You have to beef up the
to transfer girder of the entire wall .
>> MS . DUNNE: Yes, probably you do the
12 same similar fashion . Like now he ' s got
13 possibly down on the wall and the
14 transfers are the exterior wall . He is
15 not sure about the construction there
16 with the two styles are very narrow studs
17 in these walls . The other wall there are
18 large number of studs , a large wall if you
19 engage -- some of them -- with a transfer
2 20 member . I ' m sure there would be no
21 problem .
22 MS . SUSSMAN : In view of the
23 structure as it presently stands , can you
24 describe how some of it could be removed
25 to come to some resolution?
1
53
2 MS . DUNNE : Oh sure . It would mean
3 the fraying of the roof rafters but more
4 than likely some of what ' s up there could
5 be reused . It would mean additional
6 members being put in the ceiling, of the
c 7 ceiling floor but that could also be
8 accessed from the current attic .
9 MS . SUSSMAN : So a portion would be
to removed?
1t MS . DUNNE : A portion would be
12 removed .
P' 13 MS . SUSSMAN: That ' s indicated there
at portion?
15 MS . DUNNE : In the area that ' s above
16 the red line on the diagram.
17 MS . SUSSMAN : That could be removed
2
18 and it would have structural integrity?
19 MS . DUNNE : Yes indeed. There would
20 be a new point load created as Mr . Amicone
21 pointed out . It would be brought down to
22 the second floor line and no need to go
23 below that line .
24 MR . CHAIRMAN : I assume we ' ll get
25 into a discussion and counsel will point
1
54
2 us out to the cost of these kinds of
3 changes . I want to ask the Board if you ' d
4 like to explore that at this point as to
5 what Ms . Dunne thinks would be relative as
6 to the cost or things of that kind or that
7 change .
8 MS . SUSSMAN : That ' s a valid
9 question .
10 MR . WEXLER : The only case like this
11 we can discuss is the evaluation if
12 there ' s one of the adjoining properties
13 from this construction . I think that ' s
14 fair weighing the argument at least in
15 response to those two pieces of property .
16 MS . RECIO : I ' d like to hear what
$ 17 the relative cost is to the applicant if
O
18 it was taken down . I think it ' s
19 unfortunate at this point, I guess the
20 record is clear on the evidence of the
21 material that this particular structure
22 is on this property . I assume that
23 counsel will address that issue, but why
24 shouldn ' t we hear it . We have been told
25 already it ' s going to be this -- enormous
1
55
4111 2 project we have been told about this all
3 evening . I would like to hear this from
4 someone on the other side concerning the
5 cost .
6 MS . DUNNE : Well to tell you the
7 truth since I 'm not a contractor I will do
8 the best I can to some degree . I am going
9 to pull numbers . It ' s not exactly what it
10 should be, but the cost alone will
11 probably be close to a thousand dollars .
12 How much removal I ' d be very hard-pressed
13 to say what this is worth . You know,
14 since I ' m not the man who physically --
15 I ' m not responsible for coming up with a
16 form -- it ' s going to be costly . I
17 couldn ' t say it wouldn ' t be, it is costly.
18 MS . RECIO : But before I don ' t want
19 to -- we have been made to believe -- we
20 have been encouraged to conclude that it
21 would be nearly -- the cost to remove the
22 structure and/or replace it , it would be
23 costly .
24 MS . DUNNE : Sure .
25 MS . RECIO : Would you concur with
1
56
2 that?
3 MS . DUNNE : No . Somehow you know
4 one thing we will always find
5 construction in the industry is that you
6 add things to a job -- in the industry
0
7 when we remove things -- I don ' t get much
8 of -- my best guess for all the removal
9 involved and to replace this particular
10 structure to get it back to where it was
>> -- my best guess in order to do that is
12 about $ 10, 000 .
13 MR . AMICONE : You got the job .
14 MS . DUNNE : I am not a contractor .
15 MS . SUSSMAN : You can just point out
16 that what is the number -- what is the
17 number that was given last month for the
0
18 cost by the Hoffmanns . It ' s about $20, 000
19 this month?
20 MR . NULL : We said ten or $20 , 000
21 last time .
22 MS . RECIO : I certainly don ' t
23 remember that number from the last time .
24 MS . SUSSMAN : I ' d like to ask that
25 perhaps if you could, if there are any
1
57
2 questions from the public to Mrs . Dunne --
3 she is going to leave shortly .
4 MR . CHAIRMAN : Make your
5 presentation and then I will open up for
6 comments . Any questions for Mrs . Dunne,
7 Mr . Null?
8 MR . NULL : I ' d like an opportunity .
9 Mrs . Dunne is going to leave or soon
10 Mr . Amicone is addressing something here
11 -- with her present -- because I think it
12 would be important for the Board .
13 We had discussions with the Motzkins
14 and the Blums about the possibility --
15 very brief discussion between me and
16 Ms . Sussman about the possibility of
17 making modifications to the roof that
18 would possibly reduce the magnitude of
19 the variance requested . We also had
20 Mr . Amicone look into something on this
21 particular roof to be modified, to reduce
22 that impact and we had personal plans
23 drawn up --
24 She faxed me a design and I faxed it
25 to Mr . Amicone and asked if it was
1
58
2 feasible to implement it and discussed --
3 I asked him to look to see if any
4 modification could be accomplished . The
5 design -- it was looked at -- it would
6 essentially -- we don ' t believe it ' s
7 financially feasible . I have an estimate
8 from Murphy Brothers with regard to
9 taking down the roof and structure . This
to modification is about $50 , 000 -- in
tt writing -- I have got to submit to the
12 Board and I will do that . My client does
13 not like the design, does not want to
14 build it and we don ' t believe that the
15 design really is helpful to my client .
16 Let me give this to you .
17 MS . SUSSMAN : May we see this
18 please?
19 MS . RECIO : I have a question before
20 you go . You were here -- the last time
21 you were here Ms . Sussman ' s client had, I
22 think they had different alternatives
23 when you were present , and I ' m just
24 concerned that they have been marked for
25 the record . There were some documents
1
59
2 that were received . I think at this point
3 it ' s fair to ascertain that we offer them
4 as a possible alternative . That should
5 all be made part of the record and they
6 are still around?
7 MS . SUSSMAN : I believe the designs
8 were and the Boards which are retained in
9 the Building Department at the last
10 meeting as this alternative . It was not
11 submitted . I do have it here , it was for
12 discussion purposes .
13 MR . NULL : I didn ' t submit .
14 MS . SUSSMAN : Nor did I submit it .
15 MR . WEXLER : To stop a leaky roof .
16 MR . NULL : We had a recreation room
17 in this area . This was made clear by New
18 York State code, supplied at the last
19 session . We look to maintain that
20 recreation room space and replace a leaky
21 roof -- this floor area -- the problem
22 that we obviously run into is that having
23 -- if we had 20/20 hindsight before we
24 started this project and knew where we
25 were going to be today we could have
1
60
2 considered any number of alternatives and
3 we would have been stopped --
4 MR . CHAIRMAN : Mr . Null , are you
5 going to ask Mrs . Dunne any questions?
6 She has to leave shortly .
O
7 MR . NULL : Were any of the proposed
8 resolutions Mr . Motzkin and Ms . Blum
9 showed you marked in evidence here able to
to be accomplished maintaining that blue
tt structure?
12 MS . DUNNE : The three alternatives
13 she showed had a different roof
14 structure, didn ' t encompass the same
15 floor area .
16 MR . NULL : It would have required
17 alternative roof structure .
18 MS . DUNNE : If the alternatives to
19 the original it would have been
20 completely different construction .
0
21 MR . NULL : The removal of this roof
22 completely would have been a different
23 construction .
24 MS . DUNNE : I don ' t know . The
25 removal of this roof has nothing to do
1
61
ICI2 with this and was based upon fixing the
3 original roof . I would have designed a
4 different roof obviously .
5 MR . CHAIRMAN : I think everyone
6 would understand that .
0
7 MR . NULL : The cost estimate I just
8 gave you is an estimate that shows the
9 maintaining the structure creating
10 girders that would have been supported by
>> carrying this beam on a header and at a
12 vertical position down, that estimate
4/11.' would have been preserved more of the
14 roof, than was Ms . Dunne is talking about
15 would have cost $50, 000 to implement it
16 based upon the written estimate we
17 provided. With due respect to Mrs . Dunne
18 she said again she does not know how to
19 get estimates on this particular cost in
20 a manner that is accurate, and we have an
21 estimate that we are proposing for this
22 presentation .
23 MS . DUNNE : Excuse me . I wasn ' t
24 asked to price those three original
25 designs . I was only asked to price
1
62
111100 2 modifying this to a different solution .
3 MR . NULL : I 'm just saying that your
4 proposal for your solution to maintain
5 some of this structure was -- We have
6 shown as cost to us the estimate of
7 $ 50 , 000 for demolition and construction .
8 MS . SUSSMAN : What is it that you
9 have priced . I thought it was this .
10 MR . NULL : No .
11 MS . SUSSMAN : The alternatives , so
12 you have something other than this?
13 MR . NULL : The one I handed you in
14 your other hand .
15 MS . SUSSMAN : But that ' s not what
16 I ' m holding what you have there .
2
17 MR . NULL : The smaller paper, the
18 one I handed to you .
19 MS . SUSSMAN : Well , it ' s the design
20 that Mr . Motzkin and Ms . Blum proposed .
21 MR . NULL : No, it is not .
22 MS . SUSSMAN : This was what I gave
23 to you .
24 This is not what you ' re showing . It
25 is not consistent with --
1
63
ICI2 MR . NULL : No , this is the exhibit
3 here .
4 MR . CHAIRMAN : It ' s clear .
5 MR. WEXLER : That is a response to a
6 fax that was sent to you by Mrs . Sussman .
7 MR . NULL : It ' s a response only to
8 the extent I am going -- I am showing you .
9 I ' ve never shown it to Mrs . Sussman .
10 MR . WEXLER : I ' d like to see what
11 we ' re talking about .
12 MR . NULL : It was a proposal . I
13 didn ' t think it was appropriate for me to
14 show it to the Board .
15 MS . RECIO : This is what was sent to
16 you?
17 MR . NULL : No .
18 MS . RECIO : This is not what you saw
19 previously faxed to you?
20 MR . NULL : Correct .
21 MS . RECIO : This is not quite the
22 alternative . It ' s just another
23 alternative .
24 MR . CHAIRMAN: It ' s another version .
25 It ' s not what they sent, it ' s another
1
64
2 version at another price .
3 MR . NULL : We had a modification in
4 cost .
5 MR . WEXLER : What cost?
6 MR . CHAIRMAN : What cost, for this
0
7 modification, it was the cost to this --
8 MR. NULL : Right . The modification
9 Mr . Motzkin and Ms . Blum presented cost
10 not of the implemented structure with
11 this roof condition . That is why --
12 MS . DUNNE : I disagree .
13 MR . NULL : Could you put up that
14 design, the one you faxed to me?
15 MS . SUSSMAN : Sure .
16 There are different views , this
17 shows this yellow the area of the 1979
2
5
18 variance . This shows the current roof
19 that is correct .
20 MR . WEXLER : Was it changed?
21 MS . SUSSMAN : You can see over
22 there .
23 MR . WEXLER : Not the garage is on
24 the front, that ' s just --
25 MS . DUNNE : This -- line represents
1
65
2 the 1979 roof so it was originally there,
3 this -- the line, the outermost one is
4 represented -- it requires the setback to
5 the outline of the roof that was built and
6 then this dark one is the outline of the
0
7 proposed roof . If you overlay this to the
8 cross-section in red that was up before
9 when I was talking about bringing the post
10 down, it ' s not in the exact spot but again
>> the original existing girder in place,
12 goes across here, it would have to be
13 brought down and possibly lower
14 transferred again, as to the second floor
15 ceiling it seems I was describing to you
16 what is based upon this alternative .
17 MR . AMICONE : I would like to
18 respond . What I had done was essentially
19 show what is here -- what I reflected here
20 in the structural change was done, and I
21 discussed a few minutes ago the price and
22 said approximately $ 10 , 000 . This is
23 approximately the same roof line you have
24 shown there and the structural changes
25 that I have shown would have to be done so
1
66
411 2 this in fact what you got there has
3 nothing to do with this but this does
4 reflect the structural changes that would
5 be proposed under the scene .
6 MR . NULL : And do you believe the
7 different plate beams and other methods
8 could be used instead of columns that you
9 proposed?
10 MR . AMICONE : There are other
11 matters that they need to structurally
12 support this . In my opinion equally more
13 costly than we have shown here today and
14 I think that the cost estimate of $ 10 , 000
15 is a very low estimateo . I would say the
16 cost between ten and $20 , 000 to remove
8 17 this structural as an alternative from
2
0
18 what it was originally said last week .
19 That is still what I would say . I still
20 submit to the contractor the details and
21 cost of the same estimate .
22 MR . CHAIRMAN : Are there any other
23 questions of Ms . Dunne?
24 MR . NULL : No .
25 MS . SUSSMAN : Ms . Dunne, in any
1
67
2 event there is an alternative to the
3 running of the beam down through the
4 house .
5 MS . DUNNE : Absolutely . Does the
6 roof compare with the existing height of
0
7 the roof?
8 MR . CHAIRMAN : It is the same .
9 MS . DUNNE : Is the same .
10 MR . AMICONE : It ' s the same roof
11 line as I showed in this . The existing
12 line in the gable , a wall , as I have done
13 so essentially what I analyzed what was
14 shown in that .
15 MR . CHAIRMAN : The drawings that
16 we ' re talking about assume that the roof
17 would be moved back from the side line by
2
18 some amount .
19 MR . AMICONE : No, two foot high E-
20 wall .
21 MR . MOTZKIN : Robert Motzkin, 75
22 Carleon Avenue .
23 The two schemes that were generated
24 as compromises in one case there was an E-
25 wall along the northeast side and that was
1
68
2 the first scheme that was generated, the
3 yellow indicates the area of the
4 encroachment that would be in violation
5 of the zoning ordinance . The second
6 scheme is --
0
7 MR . CHAIRMAN : We had a discussion
8 about that an hour ago .
9 MR . MOTZKIN : You ' re right . The
10 second alternative which was generated no
11 one had seen until tonight suggested
12 putting the roof down to the exterior with
13 regard to alleviating the problem of the
14 wall support by doing that -- the setback
15 is greater along the side yard and then
16 bears directly on the exterior wall .
17 There wouldn ' t be any transfer except at
18 the girders down to the exterior wall ,
19 directly an encroachment is considerably
20 less under that option . I wanted Ms .
21 Dunne to respond to that structural
22 design .
23 MS . DUNNE : In effect, the
24 structural is a very similar situation to
25 what we were talking about in the scheme
69
2 of things . It ' s more around that level
3 again it would have to -- the columns that
4 came down would have to be transferred
5 that would be okay . In this case we
6 started to discuss about the transfers
7 would occur directly on the second floor
8 -- the ceiling and the transfer across the
9 members would have to be placed similarly
to to what is in the new wall , now but lower
11 down into the top of the ceiling wall so
12 really the difference is here whether
13 it ' s a two foot E-wall or not, on this
14 would remove slightly more of what is
15 existing, than the first proposal but
16 structurally they ' re both feasible .
17 Thank you .
18 MR. CHAIRMAN: Any more questions of
19 Mrs . Dunne?
20 MS . DUNNE : Thank you very much .
21 MR . CHAIRMAN : Thank you .
22 MS . SUSSMAN : Well I ' d like to move
23 on to another issue . I believe Mr .
24 Motzkin would like to speak about the
25 property that has been raised and I ' d like
1
70
2 to ask Mr . Motzkin to present before the
3 Board the material that was submitted to
4 you . This would be just an explanation of
5 how that was done and how it was able to
6 be analyzed .
7 MR . NULL : Was there additional
8 material submitted?
9 MR . MOTZKIN : It was supplied .
10 MR . NULL : I haven ' t seen it .
11 MS . SUSSMAN : It was delivered
12 March 18th, I believe , or the 19th to the
13 Board .
14 MR . NULL : We never got a copy of
1s that .
16 MR . MOTZKIN : Did the Board receive
$ 17 this ?
2
18 MR . CHAIRMAN : Yes , the Board
19 received this .
20 MS . SUSSMAN : That was submitted
O
21 directly by Mr . Motzkin and Ms . Blum .
22 MR . NULL : May I ?
23 MR . CHAIRMAN : Your letter dated
24 March 18th .
25 MR . MOTZKIN : Yes , there was a
1
71
2 discussion at the last hearing about the
3 sun, and we felt it was imperative to
4 prove evidence that was -- a method by
5 which we chose to do that was to have to
6 come further and speak and bring a
7 diagram. The dimensionals in this
8 diagram are prepared using a program
9 model, the Hoffmanns ' house and our house
10 in the aerial view and it indicates the
11 shadows of the various times of the month
12 of the year, time of day .
13 MR . CHAIRMAN : Mr . Motzkin, please
14 keep your voice up -- except devoid of
15 trees in this diagram?
16 MR . MOTZKIN : Yes , it was designed
17 simply to show the difference from 1979
b
18 construction to the 1995 construction .
0
i 19 As an example I wanted to use the month of
20 March 21st . Well -- excuse me, there were
0
21 six days that were generated -- over the
22 course of the year to compare conditions
23 prior to and after 1995 construction . Not
24 spring -- March 21st , just passed, the
25 longest day the sun angle at the highest
1
72
2 June 21st, a vernal equinox arrives in the
3 fall and the winter at certain -- the
4 shortest day of the year the sun angle is
5 on the 21st, these were the most hours the
6 most impact which are 1 P .M. to 4 P .M . ,
0
7 Mr . Fusco testified that he was at our
8 residence -- the Hoffmanns ' residence
9 between 10 A.M. and 12 : 30 that is the area
10 that we represented has impacted our
11 sunlight . It has also affected our
12 sunlight, this radium -- from 1979 the
13 construction through 1995 , the
14 construction from March 21st at 1 P .M. the
15 shadow generated by the 1979 addition .
16 Now, this I have to point out this scheme
17 here is not the driveway . This is our
18 garden area, later generated the latest
0
19 scheme that you see in this diagram . The
20 1979 construction at one point shows the
21 shadow line about halfway across our
22 driveway and 1 : 00 in the afternoon on
23 March 21st --
24 MR . CHAIRMAN: Is the tree included?
25 MR. MOTZKIN: The tree is over here .
1
73
2 It has no effect on the garden on the 1995
3 construction . It is again the
4 encroachment into the garden area at the
5 same time of day you can see there has
6 been a 12 foot extension on the shadow
0
7 line by -- at this time of day .
8 This is 2 P .M. on March 21 , 1995 and
9 again in 1979 the construction shadow
10 line from the roof -- of the mansard roof
11 just beginning to encroach into the
12 garden area by at 2 P .M . on the same day
13 it has completely covered the entire
14 garden area . It is beginning to come up
15 the side wall of the house as Mr . Wexler
16 noted before .
2
17 MR . NULL : What was the date on
18 that?
19 MR . MOTZKIN : March 21st at 2 P .M .
20 This is 3 P .M . , March 21st -- the shadow
21 line is covered in the garden in this case
22 and the sunroom where we work and spent a
23 great deal of our time , is completely
24 unlike some of the 1979 construction . At
25 3 P .M. with the same date, March 21 , 1995,
1
74
2 in this construction we get very little
3 sunlight into our sunroom -- on the south
4 wall . At 4 P .M. on March 21st, the sun is
5 halfway up the sunroom wall and it started
6 to encroach into the front yard garden but
7 in the 1995 construction it has
8 completely covered the sunroom, the
9 sunroom roof and the majority of the
10 front and side garden .
11 I should point out that the
12 March 21st date is also the equivalent of
13 the September 21st date that is early fall
14 or fall arrival . Flowers are still in
15 bloom in our garden . There are other
16 dates that have been provided . I can
17 provide you with a paper that indicates
18 some of the more charted times of day of
19 year . As we all know there are 365 days
20 in a year, 24 hours in each day and I
21 don ' t want to burden you with a lot of
22 details at this point . I did prepare a
23 package that I prepared . I want to point
24 out that this is irrefutable and it ' s
25 clear matter on this particular issue .
75
2 Thank you .
3 MR . CHAIRMAN : The date it was
4 correct .
5 MR . NULL : I want to point out that
6 the shadows of the sun at the period of
7 the day we ' re talking about has nothing to
8 do with the front yard tree in the
9 Hoffmanns ' .
10 MR . CHAIRMAN : There are two trees
�i on your property that will cast a shadow
12 and another one over there .
13 MR . NULL : Approximately here,
14 there ' s a tree here, there ' s a tree here
1,; and there ' s a tree here .
16 MR . CHAIRMAN: To the left of your
17 garage on the front?
18 MR . NULL : Just about here .
19 MR . CHAIRMAN : Probably the most
20 impact .
21 MR . NULL : Take a look at that sun
22 angle .
23 MR . CHAIRMAN : Go back an hour or
24 two and see where it falls .
25 MR . NULL : It has no impact on the
76
2 garden . And the oak tree that was
3 referred to really is a maple tree .
4 MS . SUSSMAN : There ' s been a lot of
5 focus on the garden, there are concerns
6 about it . If I said --
0
7 MR . NULL : Could you speak up?
8 MS . SUSSMAN : Other than the concern
9 about the garden there ' s other concerns
10 about the general light in the house, some
of this has to be addressed . Ms . Blum
12 would like to speak to clarify something
13 additional .
14 MS . BLUM : I will be brief . I want
to say something that ' s very important .
16 To reduce our home to sun in our garden we
17 feel it ' s really only one issue in the
18 whole setting . It is important we also
0
19 raise other issues which I don ' t want to
20 go into again about the privacy and the
21 open space just to character the property
22 the valuation, et cetera, so the light in
23 the garden I want to address .
24 There ' s only one issue of light in
25 our home, it ' s not just perhaps the
' 77
2 outside of it, it ' s been suggested that we
3 move our garden location, if we can grow
4 things in this one, we ' ll have to move it
5 somewhere else . We did that a couple of
6 years after we moved into the house . We
7 have had a professional consultation with
8 a person who went around and looked at
9 every part of our site and they selected
10 at one place where we would have sunlight
�i most of the day and we could grow our
12 plants that required sun . We tried other
13 locations even with new soil .
14 We have been through the process of
15 looking at alternatives . It was
16 suggested that we have a perennial garden
$ 17 that blooms in the summer, a garden that ' s
18 actually our perennials . I ' m referring
19 to the material produced by
20 Mr . Jakubowski , with the material that
21 was given to the Board also . We have
22 perennials and some annuals . We have some
23 plants that are growing in the spring and
24 I actually cut flowers as late as October .
25 And we have traditionally had plants that
78
2 require full sun and they have done very
3 well . These kinds of plants need a lot of
4 afternoon sun because it ' s stronger . We
5 have future plants that we had future
6 plans for .
7 The garden is further back toward
8 the garage since our driveway is wider .
9 This used to be the impact of the addition
�o affected not only what existed but future
n plans . There seems to have been some
12 conflict I notice in the written material
13 regarding what was the impact of the
14 addition . Mr . Null said it was minimal if
15 any . Mr . Fusco said it would increase in
is light -- with the increase of the s,_ai --
R17 and also the shade would only extend to
18 the edge of the driveway .
19 I think we have shown today that
20 this is not the case in terms of the
21 impact of the trees . They have
22 historically not been a problem . The
23 trees , the garden, the garage area,
24 everything we have had no difficulty in
25 growing plants to the south which need a
79
2 lot of sun and just on our own . We have
3 noticed even without calculations during
4 the past few months we did not have light
5 during the period of the day when we
6 previously did have light in the
7 afternoon even with the existence of
8 these trees .
9 And finally, I am really struck by
io two things , one is that the site
�i inspection that was done by Mr . Fusco was
12 done during the morning when the sun is
13 not impacted and lastly, having said
14 that , our garden is not impacted he
15 proposed a shade garden consisting of
is plants that require shade only with no
17 direct sun for partial shade . It appears
18 that in his recommendation he was
19 suggesting that it is not possible to have
20 the kind of garden that we enjoyed for the
e
O
21 last few years . We don ' t really have
22 unfortunately pictures of the garden . We
23 had never really intended to document it .
24 I did find a couple of photos just to show
25 you what we do in fact we have flowers
80
® 2 that require a lot of sun .
3 MS . SUSSMAN : At the risk of
4 belaboring the point that must be
5 considered by the Board in making a
6 determination to granting or denying the
7 variance to review whether or not an
8 undesirable change will change the
9 character or be detrimental to the nearby
10 property was created . I think that
11 Mr . Motzkin and Ms . Blum have
12 demonstrated significant deprivations in
13 the use of their property and enjoyment of
14 their property . Some of these were we
15 don ' t necessarily talk about in dollar
16 terms , these are quality of life issues
17 that would be affected .
18 They are trying to live in a
19 community and this is a significant
20 detriment to the people at their expense
0
21 to permit somebody else to expand in a way
22 that goes beyond what was noted for the
23 purpose intended . So I am talking about
24 the benefits to the applicant as against
25 the detriment to the neighbors . The
81
2 detriment is significant .
3 This is not just a little corner of
4 a roof which is enroaching into the
5 setback area, but the entire piece of
6 house, a wall span of 50 feet and with
7 windows . It is a very different situation
8 and it has been constructed, had it been
9 considered before the construction --
10 it ' s hard to see how this could possibly
>> have been approved . Certainly
12 alternatives and adjustment limitations
13 on the amount of the encroachment is
14 suggested and the setback area could have
been found and simply has been built is
16 not -- to try and to justify the situation
17 which is a substantial deprivation to the
2
18 neighbors .
2 19 Again, where the benefit to the
20 applicants can be achieved by some other
21 method, their method could have been
22 undertaken at the inception of the
23 project and there appears to be some
24 alternatives which -- which claim to
25 reduce the impact even though that the
1
82
2 variance has been determined to be noted .
3 When requesting the area variance is
4 substantial I contend it ' s quite
5 substantial . It has an adverse effect or
6 impact on the condition in the neighbor or
7 districts .
8 There ' s been conflicting testimony
9 from various neighbors . There ' s been
10 many people who have signed letters or
11 sent letters or signed petitions and I
12 think there have been letters on the
13 opposite side .
14 We are not addressing some of these
15 form letters that were sent in on. behalf
16 of the Hoffmanns . They simply recognize
17 that the thing had been built and I guess
18 they are showing some sympathy in that
19 regard . But however there is still an
20 impact on the neighborhood .
21 As it turns out it ' s been apparent
22 that every architect who stood up and
23 testified before this Board has indicated
24 that a situation like this usually
25 requires a variance and I submit that the
1 83
2 Parkview case to which Mr . Null alluded to
3 earlier required the applicant a special
4 effort that is in fact is what the Court
5 of Appeals said. They said the applicant
6 in Parkview could have gone back and
7 compared the metes and bounds . They
8 didn ' t do that . They didn ' t take the
9 extra step . For that reason the Court of
10 Appeals determined that they were not
11 entitled to an estoppel against the
12 municipality .
13 I submit that there were steps that
14 could have been taken by the Hoffmanns
15 early on in this process . I think
16 Mr . Hoffmann is experienced and is aware
17 that a general variance is needed in this
2
18 type of project . It ' s a very large issue,
19 it ' s a very close setback area -- there
20 could have been a far better
21 communication with the neighbors -- many
22 neighbors . Some neighbors who are not as
23 close to the Hoffmanns and the Motzkins
24 and the Blums apparently had no notice at
25 all about this construction .
1
84
2 The plans were not entirely complete
3 in accordance with the Building
4 Department regulations . The costs were .
5 estimated at $ 45, 000 and we ' re now
6 hearing $ 85, 000 . You can be sure that
7 before building a project of that
8 magnitude it seems it would behoove
9 somebody who is knowledgeable in the
io field to go through the process, not avoid
it and find a way to avoiding the variance
12 process but go through the process and
13 have the alternatives carried out before
14 the building starts to be constructed .
That was not done and I think that
16 ultimately that affected the equities
17 here in a very significant way . If that
18 had been done we wouldn ' t be here tonight
19 and everybody would be happier except for
20 the Hoffmanns who have this large
0
21 addition which is exactly what they
22 wanted . Unconstrained by any other
23 considerations .
24 Now all the other issues I ' ve put
25 aside and we ' re looking at what has been
1 85
2 built, what the costs are, how it was
3 built , cannot be changed . If cost is so
4 great that the cost cannot be
5 contemplated, I submit , it must be
6 contemplated because the zoning says that
7 it requires a variance and that the
8 variance meet the standards of the Zoning
9 Board, the required standards .
10 It seems quite clear that the
11 standards have not been met in this
12 instance . I ask the variance not be
13 granted . Thank you .
14 MR . CHAIRMAN : Any other questions
15 from the public . If there are no further
16 questions I ' d like to move this along . We
17 still have a few more cases after
18 Mr . Null .
19 MR . NULL : I ' d like to have
20 Mr . Fusco address the light and shadow .
21 MR. CHAIRMAN: Only if it ' s going to
22 add substantial information from what we
23 already know and have heard here tonight .
24 MR . NULL : It ' s not going over
25 something .
86
2 MR . CHAIRMAN : You ' re really
3 pressing the Board ' s patience .
4 MR . NULL : I think it ' s important
5 for the Board to be clear on this issue
6 and we will try and keep it short .
7 MR . CHAIRMAN : Great .
8 MR . FUSCO : The issues that are
9 pointed out here that I discussed as to
10 assist a perennial garden area I agree
�i with her that the large issue is the light
12 in the house . But to show pictures of the
13 sun and shade in March something is
14 ridiculous . The fact that the tree in the
15 front of the house does affect the
16 property at 1 : 00 when the u__ its on this
17 side of the sky is blocking out that whole
2
18 area, also April , May and June as the sun
19 rises up in the sky at that time of the
20 blooming season of anything in the garden
21 obviously you ' re going to be getting or
22 you will be getting this shade angle
23 coming in .
24 The other concern I have , it is my
25 understanding that we are here to discuss
87
111 2 a variance for a certain area and in this
3 section here where this key point is shown
4 on it, it would fall into the acceptable
5 code whether or not the decision in
6 addition to the 24 foot setback or from
7 the way I understand the project and the
8 fact that the sun and the shade create at
9 this point what they create -- whether
10 they built out to this point and went
1� straight down or they built this addition
12 -- the shade from that point would be the
,CIF 13 same whether this part is on the building
14 or not because the angle of the sun is
15 going to hit this point and you can see
16 where this is going to go, so basically
17 these photographs are somewhat deceiving
18 in the fact that although this is showing
19 where nothing is existing here you ' re
20 seeing we don ' t know which portion at the
21 shadow is actually coming from the actual
22 section . It does not conform to the
23 variance which may be a very small angle
24 at the edge of it .
25 MR. CHAIRMAN: Your point being that
88
2 it is 1995 .
3 MR . FUSCO : Yes , it is .
4 One last point . I think that with
5 respect to the garden within the plant
6 material within the garden, if it
0
7 concerns for recommendation I was making
8 a submittal that I had, it was in
9 reference to the actual garden that was
to there, if they ' re looking to increase a
11 flower area, certain obvious materials to
12 the shade -- in the area should have been
13 eliminated to allow even more space and
14 sun in the garden . That was basically my
15 concern . Thank you .
16 MR . NULL : I want to make one final
17 point . The likelihood of having the
18 Building Department determine that the
a
19 variance language is similar to the
20 language of the 1979 variance, it ' s
21 somewhat reasonable diligence
22 Mr . Jakubowski determined no variance was
23 needed and someone else of reasonable
24 diligence -- Mr . Amicone determined no
25 variance was needed on a short review of
89
2 the plans , to advise concerns with the
3 articles in accordance with the then
4 valid availability was the issue . It ' s
5 not that one clause was determined by you
6 clearly, in your prior interpretation,
7 we ' re dealing with something that is
8 precedent setting, it ' s straight hard at
9 the equities and I respectfully submit
10 there is no choice that the Hoffmanns
ii would have other than to do exactly what
12 they did, unfortunate as it is .
13 The Motzkins and Blums suggest that
14 the Hoffmanns somehow sought to
m�rnnf �'ari �r n It ' c completely
16 out of line . They did nothing but submit
17 their applicaLin ar.d talk to the
18 neighbors . He went ahead and tried to get
2 19 the opinion of Mr . Jakubowski to see if it
20 was in conformity and design, as they
21 understood the Zoning Board required .
22 They have letters . There are places in
23 this situation . This is not a happy
24 situation . They are not happy . They have
25 got $ 85, 000 they have not been able to
t 90
111 2 use, $ 9, 000 in overtime charges ,
3 et cetera . They have not been able to use
4 the space and in good faith they have
5 stopped the work on this project . They
6 did that to show their respect for the
7 community and not do anything further .
8 Since January 10th the building
9 has been sitting closed, being protected
to from the weather, in a manner anybody with
tt any diligence a homeowner would have
12 done, that does not mean that they are
411 13 happy under the circumstances .
14 Had they received notice from the
15 neighbors that they were thinking about
16 an appeal they might have had some
17 opportunity to slow down and stop the
18 construction or consider redesigning
19 before this thing was built up . What they
20 are looking at now is approximately
21 $20 , 000 in additional funds and the cost
22 to remove what is there and hopefully with
23 minimal modification .
24 MS . SUSSMAN : I have only two
25 points . One, if anybody -- I would ask
1
91
2 the Board to take notice to look at the
3 1979 resolution, it ' s very specific . It
4 requires that the building be constructed
5 in accordance with the plans that were
6 approved at that time . It seems having
7 examined it that it is quite clear to a
8 reader who is looking at it to exercise a
9 reasonable and diligence to consider the
to meaning of that, that another structure
11 would superimpose on top of that variance
12 is clear, to a reasonable person the
13 interpretation is that a variance should
14 be dealt with for an additional structure
15 in that area . You have got me so upset I
16 don ' t want to take up too much of your
s 17 time .
2
18 The chronology submitted by my
19 client indicates they also dealt with the
20 Building Department for a period of time
21 with this . There was information they did
22 pursue , the remedies they understood to
23 be there by going through the town -- they
24 relied upon their talks with the town,
25 their discussions to clarify the issues
1
92
2 of the variance . It was also when they
3 came to the final conclusion when they
4 got a final letter from the town that it
5 was not going to act , they understood to
6 do so, on their own, and they were not
0
7 guilty of laches -- cases which Mr . Null
8 recited, two years of delay, there was
9 nothing like that , they applied within
10 the time permitted, and I think they were
11 -- if anybody was misled and misinformed,
12 unfortunately it was they . And I am going
13 to stop here .
14 MR . CHAIRMAN : Mr . Null .
15 MS . SUSSMAN : He doesn ' t have to
16 answer .
17 MR . NULL : In a community where it
18 prides itself on relationships in the
19 community, among the neighbors , it is
20 unfortunate that had Mr . Motzkin and Ms .
21 Blum merely walked next door and said to
22 Mr . and Mrs . Hoffmann they were thinking
23 about challenging the building, or that
24 the vertical wall was a problem, they
25 would have immediately stopped the
t 93
2 construction of that vertical wall or a
3 simple review of the plans was causing
4 them concern, Mr . and Mrs . Hoffmann would
5 have had ample opportunity to stop and
6 reconsider, they didn ' t have that
7
opportunity and they do not have it
8 anymore . $ 85, 000 in the hole and twenty
9 to thirty -- $20, 000 to make modification
to with an estimate of $50, 000 . That is not
tt the facts we ' re looking at , those are the
12 equities we ' re looking at .
13 MR . CHAIRMAN : Any other questions
14 or comments from the public?
15 Please state your name .
16 UNIDENTIFIED MAN : Dudley Mairs , I
17 live directly behind the Hoffmanns '
is caddy-corner, my wife has spoken to the
19 community on several occasions . And we
20 submitted a letter . I want to put a face
21 to the letter .
22 Having listened to the lawyers here
23 I felt compelled to say we were not
24 consulted by the Hoffmanns , we were
25 awakened one morning by the hammering of
1
94
2 nails , by the sounds of a typical
3 construction site, to see the structure
4 go up . It ' s also been implied that height
5 does not have impact on the surrounding
6 neighbors . We have to disagree with that .
7 Their property, as well as the Motzkin
8 property is much higher than our
9 property, so any additional height is of
10 particular concern from our backyard, so
11 I think we have to stand up and say we are
12 being affected by this .
13 Also, we didn ' t know about it, so I
14 don ' t think we ever really had a voice .
15 I ' d just like you to consider that -- just
16 consider that, what my wife had and I have
17 to say .
18 MR . CHAIRMAN : Anyone else?
19 UNIDENTIFIED MALE : Yes .
20 MR . CHAIRMAN : Please state your
21 name .
22 UNIDENTIFIED MALE : Paul Hoffmann .
23 MR . CHAIRMAN : You are the son of
24 the owner?
25 PAUL HOFFMANN : Yes , I am .
1
95
2 MR . CHAIRMAN : You submitted a
3 letter?
4 PAUL HOFFMANN : I just -- as far as
5 Mrs . Blum made comments saying there is no
6 other --
a
7 MR . CHAIRMAN : I ' d like you not to
8 get personal with this , just the facts of
9 the case .
10 PAUL HOFFMANN : It was said there
11 are no other areas in the yard that is
12 possible for a garden to grow . The
13 previous owner, Ms . Graham (ph) , was
14 president of a large garden society .
15 MR . CHAIRMAN: We are in a different
19 time, with a different situation . One has
8 17 nothing to do with the other .
18 PAUL HOFFMANN: It ' s the same style,
2 19 it ' s the same -- it ' s the same thing that
20 was there, they ' re complaining, the only
21 place on the yard they can do anything,
22 the previous owner had over 70 different
23 types of daffodils on the yard . It still
24 hasn ' t changed, the ground is all the
25 same .
1
96
2 MR . CHAIRMAN : Thank you .
3 Are there any other comments . I ' d
4 like to close this public hearing . We
5 will take a ten-minute recess .
6 (Whereupon a ten-minute recess was
7 taken by the Board . )
8 MR . CHAIRMAN : I have to say that
9 this has been the toughest case that I
10 ever had before us , and we have seen
i� commercial cases, we have seen cases with
12 businesses in town to make changes , and
13 alter their business , the use of their
14 business , we have seen residents , we have
15 seen all sorts of variance, we have seen
io pieces of construction where things have
17 been built already, either without a
18 variance or built with a variance, those
19 have all been miniscule type of cases in
20 comparison to what we ' re dealing with at
21 the present .
22 And no matter what decision this
23 Board comes to I can tell you there are no
24 winners here because there is a failure of
25 the system someplace along the way, and I
97
2 don ' t know where it is , and I am sure lots
3 of people have sat and listened to all the
4 testimony can make their own conclusion
5 where the failures are . There a number of
6 people here which have because all of you
7 have your own opinions , and in this case
8 -- this Board has the responsibility -- it
9 is established by the state and town law,
and that is to enforce the Zoning Law of
ii the Town of Mamaroneck, and that has
12 already been accomplished, in one sense
13 by a prior case, which was the case just
14 prior to this discussion to review the
15 Building Department permit for validity
16 and whether or not it should be issued,
17 and the Board came to a conclusion on that
2
18 basis .
19 Based upon the fact that we now have
20 to follow with respect to the variance,
21 and the law really allows us only to do
22 the balances , testing into the
23 consideration, the benefit to the
24 applicant , if a variance is granted, the
25 detriment, the health, safety and welfare
1
98
2 of the neighbors , or the community to
3 grant such . In fact, the determination
4 there are a series of elements , that we
5 reviewed and develop .
6 Now the discussions among ourselves
7 those variance factors which many of the
8 attorneys have been raising were -- I
9 might also make note of the fact that the
10 Board may only grant the minimum variance
ii that should be necessary or adequate at
12 the same time preserve and protect the
AlPk 13 character of the neighborhood, and the
14 whole safety and welfare of the
15 community, and that in itself is a real
16 challenge , in a case such as this .
17 So at this time I will ask the Board
18 members to listen, I am going through
19 these ten -- the ten elements . We shall
20 now discuss change, detrimental impact .
21 Where it is self-created, so this will
22 produce an undesirable change in the
23 character of the neighborhood and this is
24 just for the Board ' s discussion only .
25 MS . RECIO : Well , I think the first
1
99
2 question that we have in terms of advisory
3 from the council , certain questions that
4 we need to address coming to a conclusion
5 and that question, which you say
6 undesirable changes produce the character
7 of the neighborhood, we have heard a
8 certain amount of testimony from various
9 people regarding the character .
10 Ms . Blum and Mr . Motzkin pertaining
11 to the wall, and in fact, I would say it ' s
12 fair to say that having examined at a
13 great length, these letters , not the
14 letters so much in support on behalf of
15 the Motzkins and the Blums, the letters in
16 opposition, and in certain ways I am more
17 moved by them because they are not form
18 letters , and they come from those people
19 whose properties most adversely are
20 affected, and these people , whose
21 property is continuous to the Hoffmanns '
22 and specifically the neighbors , the
23 Motzkins and Blums , the residents , I
24 would have to conclude there is a
25 detriment to the nearby properties , and I
t
100
2 think there is an undesirable change in
3 the community, I think that most of those
4 letters addressed not the height and
5 shade, which is particular to Mr . Motzkin
6 and Ms . Blum, but they address -- Mr . Null
7 addressed the height and the massiveness
8 of the project which has been undertaken .
9 I think that I also want to know
10 that I have a small packet of letters ,
tt which basically are angry, it concerns
12 the turmoil of this entire case . There is
13 disappointment in the failure to process ,
14 and distinguish those, because they are
15 really many of them do not take one side
16 or the other, but I would have to say in
17 terms of the detriment to the properties
18 which are closest to the Hoffmanns , I
19 would also say it ' s something that I noted
0
20 that while Mr . Hoffmann indicated that he
21 called the neighbors involved, I find it
22 peculiar to note that those neighbors who
23 have been adversely affected consisted in
24 the case, he did not contact some
25 neighbors , the Motzkins and Blums , they
1
101
2 were never shown designs which adequately
3 advise them of this massive project . And
4 I was not at their dining room table to
5 get one -- in either case -- I do not know
6 what was said on that date but on that
7 particular issue --
8 MR . CHAIRMAN : Any other comments ?
9 MR . WEXLER : There is a question of
to change in the neighborhood at this time,
11 you put this issue, this volume of this
12 case to a property line as a negative not
13 just on adjoining properties , but on the
�I+ 14 general following of spaces between
15 buildings .
16 MR . CHAIRMAN : A detriment to the
17 nearby properties?
18 MR . WEXLER : Yes .
19 MR . NULL : In addition to the change
20 and that is also to be true .
21 MR . KELLEHER : I have to object on
22 one part about change, this project does
23 change, there is no question about this
24 project will produce an undesirable
25 change . We have got letters from people
1
102
2 who say it is not undesirable and we have
3 got letters from people that are saying it
4 is undesirable, where there are changes
5 -- sure it will be -- it is undesirable,
6 as a matter of opinion .
7 MR . WEXLER : That is a matter of
8 opinion .
9 MR . CHAIRMAN : Alternatives , can
10 that benefit some sort of -- one thing I ' d
11 like to hear some thoughts on in regard to
12 the detriment . There is apparent conflict
13 with the shade arguments made by the
14 Motzkins , and by the Blums , and by the
15 applicants , more comparable you have
16 conclusions regarding conflicting
17 arguments about the amount of shade that
18 will be created by this structure . That
19 is a question for you, we heard experts
20 with conflicting testimony .
0
21 MR . WEXLER : That is one of the
22 aspects . The greater impact is the
23 height, along the property line , the case
24 of the adjoining neighbors , what they see
25 from their houses, the height or no light,
1
103
2 it ' s a wall . It ' s a wall that is five
3 and-a-half feet from their property line,
4 that is 28 feet high, 50 foot long, that
5 should -- it should not be there .
6 MS . RECIO : I would also say no one
0
7 can address other issues that were raised
8 by the Motzkins and Blums . Now we must
9 have their bedroom along that wall , or
10 windows which they have said interfere
11 with their privacy, that would not
12 surprise me . And that I think that those
• 13 go hand in hand, when
you have that
14 massive a structure, you have a certain
15 amount of privacy taken, the property is
16 now overdeveloped .
17 MR . KELLEHER: The questions counsel
18 put to us was about the shade, the
19 dispute, all the work that went into
20 having the property surveyed and to
21 construct the three-dimensional studies ,
22 all of that is overshadowed by the fact
23 that in my opinion when the three trees --
24 large trees are in full bloom that would
,1161
25 in my opinion be the governing shade
1
104
2 factor in that area of the yard, it ' s not
3 the picture of the height .
4 MR . CHAIRMAN : Can it benefit the
5 applicants be achieved by some other
6 feasible method . In other words, is there
0
7 an alternative?
8 MS . RECIO : It ' s been demonstrated
9 yes , there are alternatives .
10 MR . CHAIRMAN : I think the question
n was asked a while back by a Board Member
12 and no answer in terms of impact, we will
410P* 13 get to that -- I ' m talking about impact .
14 If this application came to us unbuilt I
ab c in my idind
16 because of the size and alternatives it
17 would be considered but at the same time
18 variance caselaw does point to the fact
19 that we can consider it, since that has
0
20 been extended by the application in terms
21 of the fact that it does currently exist .
22 Is there a request of variance
23 substantial .
24 MR . KELLEHER : Yes .
25 MR . CHAIRMAN : On what basis ?
1
105
2 MS . RECIO : Because it is
3 substantially affecting the property
4 here, and it ' s quite developed, there is
5 a recreation room upstairs with a nine
6 and-a-half foot ceiling and attempting to
0
7 maximize all the floor space , which was
8 available previously .
9 MR . KELLEHER : Nobody can stand
10 there and look at it and say it is not
>> substantial .
12 MR . CHAIRMAN : The previous side
411 13 wall average of 23 feet above grade -- now
14 -- 30 foot above grade -- which is 55
15 percent --
16 MR . KELLEHER : I wouldn ' t have to
17 know any of those figures at all , I could
18 stand in the street and look at it and it
0
19 is substantial , as far as I ' m concerned .
0
20 MR . CHAIRMAN : It will adversely
0
21 impact of the physical environmental
22 condition of the neighborhood in terms of
23 impact . The first question that you asked
24 was will this project produce an
25 undesirable change and now I ' m saying
1
106
2 will there be an adverse impact on the
3 physical environmental condition of the
4 neighborhood?
5 MR . WEXLER : I ' d have to say yes .
6 But from around the corner of another
7 street, no impact .
8 MS . RECTO : I would agree with that .
9 MR . KELLEHER : Twelve foot .
10 MR . CHAIRMAN : It has definitely
>> been self-created .
12 MR. KELLEHER : I think the Hoffmanns
13 acted properly . I believe they acted in
14 good faith probably even though they did
15 not get a good ruling with the building
16 permit, there is this entitlement and I
17 totally disagree with Mrs . Sussman that
18 it would be their responsibility -- or the
19 responsibility of the applicant permit to
20 go to the building inspect and become some
21 type of Sherlock Holmes ty
pe in double-
22 checking the correctness of the decision
23 of the building inspector . That is not
24 correct . That is my opinion . I think the
25 Hoffmanns acted in good faith, they
1
107
2 believed that what they were doing was
3 proper and the permit was also proper .
4 MS . RECIO : I agree with that, but
5 in that connection I would also add that
6 I don ' t think from the record that the
0
7 prior application of the Motzins ' and
8 Blums ' application was one in which there
9 was any evidence of diligence or lack of
10 diligence on their part either . I don ' t
ii think either party intended to create the
12 circumstances for which we are here
13 tonight . I think it ' s a rotten fact .
14 MR . CHAIRMAN : That ' s absolutely
15 correct . I would also and sincerely hope
16 that whatever the end result is that the
17 neighbors move on . What about the minimum
a
18 necessary and adequate to preserve and
19 protect the neighborhood and community?
2 20 MS . RECIO : You know, we ' re talking
0
21 about more than one variance here because
22 I have been addressing my comments to the
23 Board as to that portion of the variance
24 which deals with construction, the side
25 yard setback, and we have not talked
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2 really about it .
3 MR . CHAIRMAN: The correction of the
4 1979?
5 MS . RECIO : Yes . Which you know my
6 answer is to the questions would probably
7 be different, I was really addressing the
8 impact of the construction, the changing
9 of the --
10 MR . CHAIRMAN : Why don ' t we deal
11 with that thing since you raised that
12 issue . I would like to handle the
13 application in two pieces . The original
14 application that was submitted and
15 secondly, the detriment that was
16 submitted this time just dealing with the
17 correction of the front yard setback of
18 the 1979 construction .
19 MR . KELLEHER : I ' d rather continue
20 on the track we were going .
21 MR . CHAIRMAN : Good enough . I can
22 go either way . Are these appropriate
23 conditions and restrictions which are
24 related and incidental to the proposed
25 use of the property which would minimize
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2 any adverse impacts?
3 MR . KELLEHER : I don ' t believe that
4 it ' s that simple to come up with any type
5 of condition that would either grant or
6 not grant .
7 MS . RECIO : I would agree with you .
8 MR. CHAIRMAN : Then the Board would
9 ultimately be the designer of the
10 property and that is not our realm. Are
11 there similar situations likely to arise
12 in the community as a result of this ?
13 MR . KELLEHER : Let ' s hope not .
14 MR . CHAIRMAN : Will the Board be
15 prepared to make similar decisions if
16 there are similar situations , or to
17 justify any dissimilar situations?
18 MR . KELLEHER : Principally, yes .
19 MR . CHAIRMAN : Every application
20 that comes before this Board comes before
21 it on its own merits and it ' s reviewed
22 separately and distinctly, with an eye
23 towards a solution . In your collective
24 opinions will the Board be prepared to
25 make similar decisions if there are
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2 similar situations , yes , I believe the
3 answer was yes .
4 Are there other aspects of the
5 property which are non-conforming or in
6 violation of Town Codes and the answer to
0
7 that also is yes . We have other
8 conditions .
9 All other building code violations
10 that are existing on the property the
11 State Building Code, the owner state
12 health, has that been corrected -- that is
13 correct -- shall we maybe make our motion
14 relative to it, the application?
15 MR . KELLEHER : Yes .
16 MR . WEXLER : Let ' s take this in two
17
parts .
18 MR . CHAIRMAN : What we have before
19 us is a second variance all or part of the
20 case 2213 of January 24th or do you have
21 it -- let ' s see .
22 MR . KIRKPATRICK : Mr . Chairman, it
23 has been simplified, the way it is now .
24 The variance, the one side yard, the two
25 side yards , and the front yard .
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® 2 MR . CHAIRMAN : Why don ' t we deal
3 with it in three parts , I make a motion
4 this is the type of action having no
5 further action -- and the Zoning Board of
6 Appeals is the agent .
0
7 MS . RECIO : I second, all in favor .
8 MR . GERETY : Aye , aye .
9 MR . KELLEHER : Aye, aye .
i0 MR . WEXLER : Aye, aye .
ii MR . CHAIRMAN : I make a motion that
12 the application 2215 for the first two
13 questions of the application requesting
14 the variance to the side yard required the
15 total side yard 11 . 5 feet , 30 feet
16 required, be denied, on the basis that it
17 is detrimental to the community,
18 extensive benefit to the applicant and
19 further that ' s a request for the variance
20 at the front yard of the 38 . 4 -- or 40 it
21 be removed, on the basis of the minimal
22 major and pre-existing condition for what
23 has been for fifteen years .
24 MS . RECIO : Yes .
25 MR . CHAIRMAN: And the benefit to
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2 the applicant exists the detriment to the
3 community for that portion that is my
4 finding .
5 MR. WEXLER: The second part is that
6 the correct variance that was made that
7 the front wall held --
8 MR . CHAIRMAN : That is what is being
9 represented .
10 MR . WEXLER : That is make sure it ' s
11 right .
12 MR . KIRKPATRICK : That is what the
13 Building Department said .
14 MR . KELLEHER : That all has been
15 proven .
16 MR . CHAIRMAN : That ' s all we can
17 approve . We can ' t approve anything else .
2
18 MR . KIRKPATRICK : It ' s now on the
19 record and let ' s say that the garage was
20 extended, but it ' s my understanding that
21 the front yard variance is still the same .
22 MR . WEXLER : Okay .
23 MR . KIRKPATRICK : The notice is for
24 that front yard variance .
25 MR . CHAIRMAN : The documentary
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® 2 evidence makes reference to the front
3 yard to a point approximately 38 . 5 feet
4 from the lot, the notice is 38 . 4 feet so
5 --
6 MR . KIRKPATRICK : Perhaps it would
7 be wise to let the variance go for the
8 existing construction --
9 MR . CHAIRMAN : The existing front
10 yard? -
11 MR . KIRKPATRICK : Yes .
12 MR . WEXLER : This is in compliance
13 with the drawings of 1979 .
14 MR . KIRKPATRICK : I believe they
15 never saw a new survey .
16 MR . WEXLER : What did they find?
17 MR. KELLEHER : We ' re approving what
18 is now existing .
19 MR . WEXLER : The whole property
20 interpretation is in the 1979 --
21 MR . CHAIRMAN : Wasn ' t there a --
22 wasn ' t there a site survey provided?
23 MR . NULL : We submitted a survey .
24 MR . CHAIRMAN : I ' m sure it was .
25 MR . GERETY : May I make a statement?
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411 2 It has nothing to do with the case . If
3 you have to leave or if you leave before
4 this is over you can leave any time . The
5 side steps are available .
6 MR . CHAIRMAN : Any additional
7 findings beyond what we just discussed,
8 counsel , are you comfortable with the
9 using from the minutes , discussions that
10 we had relative to change and
alternatives and impact, et cetera, the
12 setting precedents and so on .
13 MR . KIRKPATRICK : Yes , we will
14 prepare certification based upon the
15 minutes .
16 MR . CHAIRMAN : Are there any
17 discussions from Board Members about the
a
18 proposed resolution?
19 MR . WEXLER : No .
0
20 MR. KELLEHER : I second the motion .
21 MR . CHAIRMAN : Ms . Recio, do you
22 have a comment?
23 MS . RECIO : No, I was just wondering
24 if we should include something about -- we
25 talked about the minimum -- you know . We
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2 did briefly address it , what started as a
3 roof job and it inadvertently I think we
4 should mention that this is a lot more
5 than maximum to fix a leaky roof, and I
6 think it actually should be adequately
0
7 stated by the Hoffmanns in a letter, I
8 think that was actually stated by the
9 Hoffmanns .
10 MR . CHAIRMAN : Is your microphone
11 on?
12 MS . RECIO : -- in a letter from his
13 engineer that was -- it utilized all the
14 available space .
15 MR . CHAIRMAN : Be sure to include
16 that .
17 MR . KIRKPATRICK : Yes , I got that
0
18 too .
19 MR . CHAIRMAN: All in favor, motions
a
20 approved .
21 MR . WEXLER : Second the motion .
22 MR . CHAIRMAN : It was all in one,
23 there was two parts , the first part having
24 dealt with the first part of the motion
25 disapproved the side yard and the second
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0 2 part was to approve the front yard
3 setback .
4 ( 11 : 45 P .M . , case adjourned . )
5 * * *
6 CERTIFIED TO BE A TRUE AND ACCURATE
TRANSCRIPTION OF THE ORIGINAL
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7 STENOGRAPHIC RECORD, TO THE BEST OF
MY ABILITY_ ._
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10 JA WIE JACKSON
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