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1998_10_28 Zoning Board of Appeals Minutes
MINUTES OF THE REGULAR MEETING OF THE ZONING BOARD OF THE TOWN OF MAMARONECK OCTOBER 28, 1998, IN THE COURT ROOM, TOWN CENTER 740 WEST BOSTON POST ROAD MAMARONECK, NEW YORK Present: Thomas E. Gunther, Chairman Jillian A. Martin J. Rene Simon Arthur Wexler Paul A. Winick Absent: Patrick B. Kelleher Also Present: Judith M. Gallent, Esq., Counsel Ronald A. Carpaneto, Director of Building Michele Nieto, Public Stenographer Terranova, Kazazes & Associates, Ltd. 49 Eighth Street New Rochelle, New York 10801 Marguerite Roma, Recording Secretary CALL TO ORDER The meeting was called to order by Chairman Gunther at 6:00 p.m. Mr. Gunther informed those in attendance that before cases are called, some administrative matters will be clarified for Board members as well as the public. Firstly,Mr. Gunther introduced and welcomed Mr. Paul Winick who was appointed this date by the Town Board as a member of the Zoning Board of Appeals and will be filling the remaining term for one of the Board's members who is ill. Mr. Gunther then welcomed back Mr. Simon, who has also been out for while. Mr. Gunther informed those present that since the normal meeting starts at 7:45 p.m. and due to the long agenda this evening, the meeting is starting earlier. The new cases will be called first, starting with application#5 and working down the agenda. At approximately 7:45 p.m. the Board, will revert back to application#1 and work forward to allow individuals that attended the prior meeting ample time to arrive, as applications#1 through #4 are adjourned cases from the prior meeting which started at 7:45 p.m. Mr. Gunther also informed those in attendance that Application #4, Case #2329, Rick Bernstein, 24 Winged Foot Drive, called to request an adjournment and will not be heard this evening. Mr. Gunther said the Minutes of the previous meetings will be reviewed at the end of the meeting, along with scheduling the next meeting date. Mr. Carpaneto informed Mr. Gunther that applicant for application#9, case #2334, requested his case be heard last. The Secretary read the application as follows: Zoning Board October 28, 1998 Page 2 APPLICATION NO. 5 - CASE 2330 Application of Diana Roswick/James Burr requesting a variance to construct a one-story rear yard addition. The one-story rear yard addition as proposed has a side yard of 6.86 ft. where 8 ft. is required pursuant to Section 240-39B(2)(a), a total side yard of 15.24 ft. where 18 ft. is required pursuant to Section 240- 39B(2)(b); and further, the addition increases the extent by which the building is nonconforming pursuant to Section 240-69 for a residence in an R-6 Zone District on the premises located at 5 Dante Street and known on the Tax Assessment Map of the Town of Mamaroneck as Block 122 Lot 642. Barry Bronfman,the architect for the project, of Leittenberger-Bronfman Architects, of 501 Washington Avenue, Pleasantville, New York appeared. Mr. Bronfman said the applicant is seeking a variance for the side yard setback requirement. The proposed one-story rear yard addition to reconfigure the floor plan of the first floor, is due to the special needs of their handicapped seven year old child. The reconfiguration added two bedrooms and a bathroom on the first level, to be used by the handicapped child and his brother, as well as an addition of a family-room at the rear of the house and expansion of the laundry room. Mr. Bronfman said the nonconforming situation is the function of the right side setback where there is 6.86 ft. instead of 8 ft. Mr. Bronfman is proposing to raise the foundation of an existing storage shed to create a laundry room on the first floor level, and is not looking to encroach any further into the side yard. Mr. Wexler asked Mr. Bronfman to clarify his comments about the laundry room. Mr. Bronfman said there is an existing foundation where the proposed laundry room is, which is a storage shed at the rear of the garage. Mr. Bronfman is proposing to raise the foundation to first floor level, currently at grade, approximately 31/2 ft. to 4 ft. and build up from that foundation. That is the only part of the addition that encumbers the side yard. After further discussion regarding the need for a variance, Mr. Gunther asked Mr. Bronfman to explain to the Board the reasons why the addition has to be done; to secure entry and egress or to add a bedroom. Mr. Bronfman said the main reason is to add accessible space for the child in the wheelchair, as well as accessibility from the rear where a deck and handicapped ramp is also being proposed but does not encroach on the side yard. A discussion ensued regarding the measurements on the plot plan at the rear of the property. Mr. Gunther asked if there was a reason why there are no windows in the drawing on the bedroom side. Mr. Bronfman said there are two bedrooms, one bedroom faces the rear and the other faces the side. A discussion ensued regarding the one-story addition and the trees separating the side yard from the rear yard on both sides. • Mr. Gunther asked if there were any questions from the public on this application. Diana Roswick, one of the owners, appeared. Ms. Roswick said the addition is being built because of her disabled younger son who is in a wheelchair, and explained the reasons for the expansion. Mr. Gunther asked if there were any other questions from the public on this application. There being none, on motion of Mr. Wexler, seconded by Mr. Gunther, the following resolution was proposed and ADOPTED unanimously, 5-0. RESOLVED, that this is a Type II action having no significant impact on the environment pursuant to 6 NYCRR §617 et seq. Accordingly, no further action under SEQRA is required. On motion of Ms. Martin, seconded by Mr. Winick, the following resolution was ADOPTED: Zoning Board October 28, 1998 Page 3 WHEREAS, Diana Roswick/James Burr have submitted an application to the Building Inspector, together with plans to construct a one-story rear yard addition. The one-story rear yard addition as proposed has a side yard of 6.86 ft. where 8 ft. is required pursuant to Section 240-39B(2)(a), a total side yard of 15.24 ft. where 18 ft. is required pursuant to Section 240-39B(2)(b); and further, the addition increases the extent by which the building is nonconforming pursuant to Section 240-69 for a residence in an R-6 Zone District on the premises located at 5 Dante Street and known on the Tax Assessment Map of the Town of Mamaroneck as Block 122 Lot 642.; and WHEREAS, the Building Inspector has declined to issue such permit on the grounds that the plans submitted failed to comply with the Town of Mamaroneck Zoning Ordinance with particular reference to Section 240-39B(2)(a), Section 240-39B(2)(b), Section 240-69; and WHEREAS, Diana Roswick/James Burr submitted an application for a variance to this Board for the reasons set forth in such application; and WHEREAS, this Board has examined the plans, inspected the site, reviewed the application and has heard all persons interested in this application after publication of a notice thereof and a hearing thereon; and WHEREAS, the Zoning Board of the Town of Mamaroneck makes the following findings as required by New York State Town Law §267-b: 1. The Board finds that the benefit to the applicant from the granting of the variance outweighs any detriment to the health, safety and welfare of the neighborhood. In reaching this conclusion, the Board considered the following factors: A. No undesirable change will be produced in the character of the neighborhood or a detriment created to nearby properties. The majority of the changes proposed do not require any variance. Just a small portion of the renovations -- the replacement of a shed with a laundry room -- requires a variance; B. There is no reasonable alternative, given that the need for the changes to the house is to accommodate a disabled child who is confined to a wheelchair and needs accessible living space on the ground floor; C. The variance is not substantial, as it involves maintaining the side yard in the current condition and replacing a structure that already exists; D. There will be no adverse impact on the physical or environmental conditions in the neighborhood; E. This is not a self-created difficulty; F. The granting of this variance is in harmony with the general purposes and intent of this Ordinance and will not be injurious to the neighborhood or otherwise detrimental to the public welfare; G. The variance is the minimum necessary to alleviate the difficulty detailed in the application yet also preserves and protects the character of the neighborhood and the health, safety and welfare of the community; H. The strict application of the Zoning Ordinance and the Town Code would deprive the applicants of the reasonable use of the land/or building, and the variance granted by this Board will enable such reasonable use. Zoning Board October 28, 1998 Page 4 NOW, THEREFORE, BE IT RESOLVED, that the subject application be and the same is GRANTED, subject to the following conditions: 1. This variance authorizes the construction as shown on the plans presented and no other. 2. The applicant shall obtain a building permit within six (6) months of the filing of this Resolution. 3. The building permit shall be void if construction is not started within six(6) months and completed within two (2) years of the date of said permit. 4. Construction shall be in substantial compliance with the plans submitted in connection with this application. This decision shall be filed with the Town Clerk as provided in Section 267-a(2) of the Town Law. Mr. Gunther informed the applicant to see the Building Department during regular business hours for a permit. The Secretary read the next application as follows: APPLICATION NO. 6 - CASE 2331 Application of Mr. &Mrs. Paul J. Callahan requesting a variance to construct a two-story addition to the rear of the house. The two-story addition as proposed has a rear yard of 39.58 ft, where 50.0 ft. is permitted pursuant to Section 240-34B(3);and further, the two-story addition increases the extent by which the building is nonconforming pursuant to Section 240-69 for a residence in an R-30 Zone District on the premises located at 6 Dudley Lane and known on the Tax Assessment Map of the Town of Mamaroneck as Block 313 Lot 306. Mr. Zimmermann, the architect for the project, of 5 Norma Place, Scarsdale, New York, 10583 appeared, along with the applicants. Mr. Zimmerman said he is proposing to fill in the space that exists in the house. Mr. Zimmerman proceeded to explain the proposal to the Board, using an exhibit which was submitted and marked exhibit#1. He pointed out the required setbacks, indicated by the red line. The house is being reconfigured on the inside providing a kitchen and family room on the first floor, two bedrooms and another two baths on the second floor. The house will be much more in keeping with the neighborhood. Mr. Zimmerman said the allowable envelope to build on this piece of property is only 28 ft. from front to back, indicated by the blue area on the exhibit. A discussion ensued regarding the terrace area and the setbacks of the portions of the existing house in that subject area. Ms. Martin asked about the trees in the back. Mr. Zimmerman said the trees on the property are not being touched. Also noted on the site plan is the impervious area reduction. Mr. Gunther asked if there were any other questions from the Board members. There being none, he asked if there were any questions from the public on this application. There being none, on motion of Mr. Gunther, seconded by Mr. Wexler, the following resolution was proposed and ADOPTED unanimously, 5-0. Zoning Board October 28, 1998 Page 5 ® RESOLVED, that this is a Type II action having no significant impact on the environment pursuant to 6 NYCRR §617 et seq. Accordingly, no further action under SEQRA is required. On motion of Mr. Wexler, seconded by Mr. Simon, the following resolution was ADOPTED: WHEREAS, Mr. & Mrs. Paul J. Callahan have submitted an application to the Building Inspector, together with plans to construct a two-story addition to the rear of the house. The two-story addition as proposed has a rear yard of 39.58 ft, where 50.0 ft. is permitted pursuant to Section 240- 34B(3); and further, the two-story addition increases the extent by which the building is nonconforming pursuant to Section 240-69 for a residence in an R-30 Zone District on the premises located at 6 Dudley Lane and known on the Tax Assessment Map of the Town of Mamaroneck as Block 313 Lot 306; and WHEREAS, the Building Inspector has declined to issue such permit on the grounds that the plans submitted failed to comply with the Town of Mamaroneck Zoning Ordinance with particular reference to Section 240-34B(3), Section 240-69; and WHEREAS, Mr. & Mrs. Paul J. Callahan submitted an application for a variance to this Board for the reasons set forth in such application; and WHEREAS, this Board has examined the plans, inspected the site, reviewed the application and has heard all persons interested in this application after publication of a notice thereof and a hearing thereon; and WHEREAS, the Zoning Board of the Town of Mamaroneck makes the following findings as required by New York State Town Law §267-b: © 1. The Board finds that the benefit to the applicant from the granting of the variance outweighs any detriment to the health, safety and welfare of the neighborhood. In reaching this conclusion, the Board considered the following factors: A. The addition will not create any undesirable change in the character of the community, as it is in keeping with the architecture of the house and the homes in the neighborhood; B. The applicant cannot achieve the benefit they are seeking in any other fashion other than what has been presented on the plans submitted, because of the position of the house on the site; C. The addition is not substantial, in that the existing house itself is closer to the rear property line than the proposed addition as designed; D. The building is set on the property in such a fashion that almost all sides of the building are in violation of the required setback. The adjoining property in the rear, the Winged Foot Golf Club, is at the present time open space. Therefore, the addition being closer than 50 ft. to the property line will not impact anyone on that side of the property line, and will not have any adverse impact on the physical or environmental conditions in the neighborhood or district; E. There is no self-created hardship, but rather the need for the variance is created by the shape of the lot and the footprint of the existing house; F. The granting of this variance is in harmony with the general purposes and intent of this Ordinance and will not be injurious to the neighborhood or otherwise detrimental to the public welfare; Zoning Board October 28, 1998 Page 6 G. The variance is the minimum necessary to alleviate the difficulty detailed in the application yet also preserves and protects the character of the neighborhood and the health, safety and welfare of the community; H. The strict application of the Zoning Ordinance and the Town Code would deprive the applicants of the reasonable use of the land/or building, and the variance granted by this Board will enable such reasonable use. NOW, THEREFORE, BE IT RESOLVED, that the subject application be and the same is GRANTED, subject to the following conditions: 1. This variance authorizes the construction as shown on the plans presented and no other. 2. The applicant shall obtain a building permit within six (6) months of the filing of this Resolution. 3. The building permit shall be void if construction is not started within six (6) months and completed within two (2) years of the date of said permit. 4. Construction shall be in substantial compliance with the plans submitted in connection with this application. This decision shall be filed with the Town Clerk as provided in Section 267-a(2) of the Town Law. Mr. Gunther informed the applicant to see the Building Department during regular business hours for a permit. The Secretary read the next application as follows: APPLICATION NO. 7 - CASE 2332 Appeal of Robert and Judith Herbst, 76 North Chatsworth Avenue, Larchmont, of a determination by the Building Inspector, that a central air-conditioning unit which is located on the ground and is connected to a single-family home at 72 North Chatsworth Avenue is not a "structure" within the meaning of the Zoning Ordinance, Section 240-84(A), defined in Section 240-4, for a residence in an R-7.5 Zone District on the premises located at 72 North Chatsworth Avenue and known on the Tax Assessment Map of the Town of Mamaroneck as Block 117 Lot 221. William E. Maker, Jr., counsel for the applicants, appeared, along with Robert and Judith Herbst, the applicants. Mr Maker said the request is for an interpretation of the meaning of the word "structure" as defined within the code, as the Town has adopted a definition of structure which might be different than what someone might think of in the abstract. Mr. Maker presented pictures to the Board, marked exhibit#1 and numbered #1 through#5, respectively. Mr. Maker said there are two units, one situated at the front side closest to the neighbors house, the other is closer to the rear. The units measure approximately 40 in. in height and are about 23 in. wide and sit on pads, which are 40 in. by 36 in. and 4 in. high. The pads sit on stones, for whatever purpose. In terms of the relationship between the neighboring house and the Herbst house, the unit closer to the front lies approximately 54 in. away, as shown in photograph#4, the picture with the hockey stick. The main concept to keep in mind is the house is only a few feet from the property line. The two units are separated only 19 ft. apart, one unit 54 in. and the other unit 32 in. away from his client's property. Zoning Board October 28, 1998 Page 7 Mr. Maker said the applicants are before the Board, due to the tremendous noise that is created by these units. The manufacturer sets the decibel level at 82, which is louder than the average Manhattan street corner. Mr. Maker then focused on the definition of structure, Section 240-4, and read that section for the Board. Mr. Maker said the Board should keep in mind that when it comes to interpreting zoning ordinances, the courts look to plain meaning of given words. Mr. Maker then proceeded to read the definition provided in the Webster's dictionary for the words "construct" and "erect", submitted as exhibits #2 and #3, respectively. Mr. Maker described the items he was referring to, four assembled parts; the stones on the ground, a pad of some undetermined material, the unit that sits on top of the pad and the unit itself which is connected to the house with pipe. These are permanent installations. It has satisfied the requirement that this is something that has been constructed or erected, within the meaning of this particular ordinance, especially by examples given by the ordinance. In addition, these are attached to something having a location on the ground, the second branch of the definition. These are the pads which lie on top of the stone and are flush against the ground. It appears there is an object that has been constructed or erected, attached to the ground and then attached to the home. Mr. Maker asked the Board to keep in mind the map exhibits submitted when the application was filed, and pointed out an area on the other side of the house where these units could have been installed and would not have been so close to the neighboring property. Mr. Maker said these items are structures within the meaning of the Town of Mamaroneck Zoning Ordinance. Mr. Maker introduced the applicants, Mr. & Mrs. Herbst. Judy Herbst, of 76 North Chatsworth Avenue, appeared and said the units were installed this past summer. She has resided at 76 North Chatsworth Avenue for six years, and thoroughly enjoyed the outdoors. Due to the fact that the back yard is gravel, the family uses the side yard where a great deal of outside time is spent with her two boys during the day, as well as in the evenings and weekends. Ms. Herbst also does gardening in that area. The two units cover the entire side yard. If the units were on the driveway side, there would be a buffer between the lawn and Ms. Herbst's house. The units abut the entire lawn, and constantly run for five months out of the year to cool the entire house, possibly on a thermostat, as opposed to individual cooling units per room. When Ms. Herbst's windows are opened, the noise from the air conditioning unit can be heard. Mr. Herbst said when the units kick on it is very loud and made comparisons. Ms. Herbst said her son should not have had to learn to get used to this kind of noise, especially during the night time. The sound has kept the entire family up through the evenings. The previous neighbors had an air conditioning wall unit in the dining room that did not cause a disturbance. Robert Herbst appeared. Mr. Herbst said while the full meaning of the statute shows that the units are structures, the Board also has to think about what the Town Code is for. The Town Code is to protect the aesthetic and health of the people who live in the community. Mr. Herbst then referred the Board to picture#3, the side yard, with the bench and garden. The bench is at an equal distance point of a triangle between the two 82 decibel rated units. The bench is unusable, due to the noise factor, when the units are on. Mr. Herbst continued his presentation regarding the throbbing, low-grade electric sound. Mr. Herbst said he resided in Manhattan for thirteen years, considers himself tough and stoic. He presented a log started, introduced as exhibit #4, indicating the date, the starting time, the weather, and his comments regarding the subject units. Mr. Herbst said they cannot enjoy the yard, when the units are on. Mr. Herbst said he has lived in the community since 1965, has had cordial relations with individuals in the Town and the neighbors. He feels the units may injure the health and safety of the family, they take away from the aesthetics, prevents the Herbsts from using their yard and probably lowers the property value. Mr. Maker went back to the word "structure", and said these items fall squarely within it. Mr. Maker wanted Mr. & Mrs. Herbst to address the Board, so that the Board would realize that there is a sincere problem. Mr. Winick asked what is on the other side of the neighboring house, the distance between the wall of the neighboring house and the property line on the other side of the adjoining property. Zoning Board October 28, 1998 Page 8 Mr. Maker said he does not have a survey indicating the other side's distance, the southerly neighbor. He only has the sketch from the tax map. Mr. Herbst said he does not know the exact distance either, but the other side is their driveway; a grassy area with some bushes, the driveway and the other neighbor's house. There is also room in the back, as the whole back yard is a grassy area which would provide the space to locate these units. Mr. Gunther asked if there were any other questions from the Board. Ms. Martin asked if the issue is the noise factor. Mr. Maker said yes, the triggering mechanism for coming before the Board is the noise. From a visual point of view the units are not attractive, it is a problem, but the noise is the issue. Ms. Herbst said if it were a visual problem, landscaping would solve that problem, but that is not the issue. Ms. Gallent said the issue for the Board is the interpretation of the term "structure". Ms. Martin asked if noise reduction options have been discussed. Mr. Herbst said in June he spoke to the neighbors several times and offered to pay part of the cost of moving the units, at which time the neighbors said to sue them. Mr. Gunther asked if there were any questions or comments from the public on this application. Steve Halperin, of the law firm of Halperin& Halperin PC, 18 East 48th Street, New York, New York, appeared, along with one of the owners of the two units, John Hamblet of 72 North Chatsworth Avenue. Mr. Halperin said he sent note to the Board that his client only became aware of this application through a neighbor. The application was briefly reviewed and rather than ask for an adjournment, decided to address the issue. The focus of the Board should be that the building inspector has determined, possibly for the last twenty years, that these units are not structures. Perhaps fifty to seventy percent of the homes in the Town have these units, they were not installed with building permits and were not considered structures. Mr. Halperin cannot imagine the basis that the applicant would have to retroactively change what the building inspector and the zoning board has done, for the past twenty years. It is an electrical appliance used to air condition a house. Mr. Halperin thought Mr. Maker would have presented case law to establish that these air conditioning units are considered structures, if there were any such cases, but there are none. The applicant has presented this to be a nuisance case, and it is not a nuisance case. Mr. Halperin thinks the building inspector who he spoke with today, will agree that no building permit was required, it is not a structure and the application should be denied. Mr. Gunther said for clarification he cannot speak for the last twenty years on the comment made by Mr. Halperin, because the building inspector may have allowed this, but these cases have not come before the zoning board. Mr. Wexler brought to the Board's attention a case the zoning board heard a couple of years ago on Durham Road, a filter for a pool. If the use of the apparatus is taken away and the elements look at, it falls into the same category; it is an object, attached by a pipe, serves a purpose and is on the ground. Mr. Gunther asked the secretary if a notice was sent to Mr. Hamblet. Ms. Roma said Mr. Hamblet came into the Building Department, checked the file and that notice was sent. Mr. Halperin said the notice was apparently mailed, but not received. Mr. Halperin said if the applicant's argument is anything can be considered a structure, even a barbecue grill can be included. Mr. Halperin said the clear meaning of the word structure is a building of some type, including, but not limited to, a swimming pool. It does not mean anything at all sitting on the ground on a residential property. Mr. Zoning Board October 28, 1998 Page 9 Halperin pointed out that the two units being discussed replaced nine external window units,three of which face on the property of the applicant. Mr. Halperin informed that Board they had no further comments at this time. A discussion ensued regarding the decibel level of the noise. Mr. Maker said he would like to know the results of the Durham Road application. Mr. Gunther asked counsel to provide background on any research to give the Board guidelines, in terms of exterior installed appliances and how these are treated, especially on the case at Durham Road. A discussion ensued, with the Mr. Gunther requesting the secretary research the application referred to, Jacoby, and distribute copies to counsel and the Board. Mr. Gunther asked Ms. Gallent to review the noise regulation, indicating the hours allowed during the day, and the decibel requirement in the Town. Mr. Simon said the police have an ordinance on noise regulation. Mr. Winick clarified that he understands the factual situation that premanufactured unit which is placed on a concrete slab below grade in portion, and that unit is attached to a house through pipes and assume all of those elements are part of this apparatus; i.e. the pad, unit and the pipes, may apply. If there is anything else the Board needs to know in the matter of installation, this is the time to address that issue. Mr. Gunther said he is not anxious to close the public hearing and informed the applicant and respondent that they will have an opportunity to address the issues. A discussion ensued regarding an accessory structure and the installation of fencing. Mr. Gunther then informed the applicant and Mr. Hamblet of the five factors the Board considers when granting a variance. Ms. Gallent said this is not an application for a variance, but an appeal of a determination made by the Building Inspector, a question of interpretation of the law. Ms. Gallent requested that any research or additional information be provided by counsel at least one week prior to the next meeting date for review. Mr. Gunther asked if there were any other questions from Board members. There being none, on a motion made by Mr. Gunther, seconded by Mr. Winick, it was unanimously RESOLVED, that the Public Hearing of case#2332 be, and hereby is,adjourned to the November meeting. After some discussion, the next meeting date was scheduled for Tuesday, November 24, 1998. The Secretary read the next application as follows: APPLICATION NO. 8 - CASE 2333 Application of Mr. &Mrs. J. B. Mosley requesting a variance to construct a family room addition, kitchen remodel, master bedroom and bathroom. The addition to be constructed has a rear yard of 10 ft. where 25 ft. is required pursuant to Section 240-37B(3); and further, the addition increases the extent by which the building is nonconforming pursuant to Section 240-69 for a residence in an R-10 Zone District on the Zoning Board October 28, 1998 Page 10 premises located at 62 East Brookside Drive and known on the Tax Assessment Map of the Town of Mamaroneck as Block 212 Lot 161. John Weiss, the architect, of 66 Main Street, Bedford Hills, New York appeared, representing the applicant. Mr. Weiss referred to an illustration, submitted and marked exhibit marked #1, to explain the difficulties. Mr. Weiss said the illustration is of the site, the ledge rock adjacent to the proposed addition. The location of the proposed addition is the most logical. Mr. Weiss is proposing a two-story, stepping addition, off the left side of the residence, due to the ledge rock. It will be in line with the back of the house, and not extending back any further. The expansion will go up, the existing porch and covered entry in the back will be removed, to free up space in the back yard. Mr. Weiss said the elevations work well with the existing house and will provide the applicant with additional useable space needed. Mr. Weiss also presented letters to the Board in support of the application, marked exhibit#2. Mr. Simon asked if it is a trimmed opening. Mr. Weiss said it is not a trimmed opening, and proceeded to explain the layout and elevations due to the ledge rock. Mr. Gunther stated that Mr. Weiss is making reference to the flow between the family room drawn on the plan, #102, going from the family room to the kitchen area. The wall that separates the two rooms, there will be two steps going from the kitchen level up, four steps to the column with a half wall. Mr. Gunther asked if the entire wall will be open. Mr. Weiss said it will be open, but closed by the columns. Mr. Gunther asked if the reason for the height was due to raising the addition up over the ledge rock. Mr. Weiss said that was the only logical path that could be taken to get the rooms above that. Removing the rock would have been a tremendous expense. Mr. Gunther asked why the proposed addition could not have been moved closer to the front of the house, further away from the rear lot line. Mr. Weiss said the way the dining area is open to the side yard, it would block the whole side yard off from a view. There is a garage on the site plan. If the addition was brought forward there would be no room to get to the back yard, as it would be completely blocked off. Mr. Wexler asked when the house was built. Mr. Weiss said he did not know. Mr. Mosley said the house was built in 1907, the garage in 1920. After further discussion, Mr. Gunther asked if there were any questions from the Board. There being none, Mr. Gunther asked if there were any questions from the public. Mr. Mosley said the house to the right was built in 1954, the house behind in 1966 and remnants remained from previous attempts to split the rock. Mr. Gunther asked if there were any other questions from the public. There being none, on motion of Mr. Wexler, seconded by Mr. Gunther, the following resolution was proposed and ADOPTED unanimously, 5-0. Zoning Board October 28, 1998 Page 11 RESOLVED, that this is a Type II action having no significant impact on the environment pursuant to 6 NYCRR §617 et seq. Accordingly, no further action under SEQRA is required. On motion of Ms. Martin, seconded by Mr. Simon, the following resolution was ADOPTED: WHEREAS, Mr. & Mrs. J. B. Mosley have submitted an application to the Building Inspector, together with plans to construct a family room addition,kitchen remodel, master bedroom and bathroom. The addition to be constructed has a rear yard of 10 ft. where 25 ft. is required pursuant to Section 240- 37B(3); and further, the addition increases the extent by which the building is nonconforming pursuant to Section 240-69 for a residence in an R-10 Zone District on the premises located at 62 East Brookside Drive and known on the Tax Assessment Map of the Town of Mamaroneck as Block 212 Lot 161; and WHEREAS, the Building Inspector has declined to issue such permit on the grounds that the plans submitted failed to comply with the Town of Mamaroneck Zoning Ordinance with particular reference to Section 240-37B(3), Section 240-69; and WHEREAS, Mr. &Mrs. J. B. Mosley submitted an application for a variance to this Board for the reasons set forth in such application; and WHEREAS, this Board has examined the plans, inspected the site, reviewed the application and has heard all persons interested in this application after publication of a notice thereof and a hearing thereon; and WHEREAS, the Zoning Board of the Town of Mamaroneck makes the following findings as required by New York State Town Law §267-b: 1. The Board finds that the benefit to the applicant from the granting of the variance outweighs any detriment to the health, safety and welfare of the neighborhood. In reaching this conclusion, the Board considered the following factors: A. No undesirable change will be produced in the character of the neighborhood or a detriment to nearby properties created; B. The applicant does not have a reasonable alternative to achieve its goals given the unusual topography of the property with the large rock that surrounds the dwelling on all sides, the steep grade of the property and the location of the garage; C. The variance requested is not substantial, as it continues the line of the house from the rear and does not encroach into the rear yard any more than what currently exists on the property; D. There will be no adverse impact on the physical or environmental conditions in the neighborhood; E. The difficulty presented is not self-created; F. The granting of this variance is in harmony with the general purposes and intent of this Ordinance and will not be injurious to the neighborhood or otherwise detrimental to the public welfare; G. The variance is the minimum necessary to alleviate the difficulty detailed in the application yet also preserves and protects the character of the neighborhood and the health, safety and welfare of the community; Zoning Board October 28, 1998 Page 12 H. The strict application of the Zoning Ordinance and the Town Code would deprive the applicants of the reasonable use of the land/or building, and the variance granted by this Board will enable such reasonable use. NOW, THEREFORE, BE IT RESOLVED, that the subject application be and the same is GRANTED, subject to the following conditions: 1. This variance authorizes the construction as shown on the plans presented and no other. 2. The applicant shall obtain a building permit within six (6) months of the filing of this Resolution. 3. The building permit shall be void if construction is not started within six (6) months and completed within two (2) years of the date of said permit. 4. Construction shall be in substantial compliance with the plans submitted in connection with this application. This decision shall be filed with the Town Clerk as provided in Section 267-a(2) of the Town Law. Mr. Gunther informed the applicant to see the Building Department during regular business hours for a permit. The Secretary read the next application as follows: APPLICATION NO. 9 - CASE 2334 Application of Brank K. Mailer and Sheryl A. Odentz Mailer requesting a variance to construct a deck at the rear and side of the property. The deck as proposed has a rear yard setback of 9 ft. where 25 ft. is permitted pursuant to Section 240-36B(3); and further, the deck increases the extent by which the building is nonconforming pursuant to Section 240-69 for a residence in an R-15 Zone District on the premises located at 7 Winged Foot Drive and known on the Tax Assessment Map of the Town of Mamaroneck as Block 209 Lot 227. Brant Mailer, the owner, of 7 Winged Foot Drive appeared. Mr. Mailer said he is again before the Zoning Board for an additional variance, having appeared before the Board and a variance granted in May for other work. Indicated on the plans at that time was that a deck, which was not a part of the variance that was granted. He explained that the back yard has very steep slopes, is unusable and a deck became a very important feature. Mr. Mailer informed the Board that he met with Coastal Zone Management Commission (CZMC) last evening. Mr. Mailer then explained the redesign on the plans provided to the Board with submission. The deck was made two-tiered, because the property slopes down. That portion of the deck that extends beyond the house is being pushed back a few ft. The original approved deck was 16 ft. by 12 ft. The proposed deck is approximately 16 ft. by 16 ft. After further discussion, Mr. Wexler asked what the setback on the rear property line was on the variance that was approved. Mr. Mailer said the rear property line setback approved was three fewer feet than presently being requested. Zoning Board October 28, 1998 Page 13 Mr. Wexler asked about the redesign. Mr. Mailer said the neighbors were concerned about the deck on the side, hence the redesign. Mr. Wexler said the change to the deck is a three sided structure, and asked why the reason for the bay in that area rather than the other direction. Mr. Mailer the neighbors are very close to that line. Mr. Wexler suggested that the impact would have been greater on the neighbor. Mr. Mailer agreed with Mr. Wexler. Mr. Winick asked if Mr. Mailer also added something forward on the property. Mr. Mailer said just the side, the lower deck. The steps previously came down into land that had a very steep slope. By adding a side deck, the slope was more gentle when coming down the steps. A discussion ensued regarding the elevations filed with the plans, the size of the deck and various locations for the deck. Mr. Mailer said another location would be visually awkward. Mr. Gunther asked if there were any other questions from the Board members or the public. Ms. Gallent said the matter has been before the Planning Board for consideration and it also went before the CZMC last evening. Mr. Mailer said the Planning Board seemed to have no objection, and the CZMC didn't think there was a problem. After further discussion, Ms. Gallent said this is a Type II action. A discussion ensued regarding to the original site plan and application, with Mr. Mailer reiterating the awkwardness of his property. Mr. Wexler asked if Mr. Mailer has shown the plans to the neighbor. Mr. Mailer firstly said he described the plans to his neighbor, then said he thought he had shown the plans to his neighbor. Mr. Gunther asked if there were any other questions. Mr. Gunther said he is not in favor of the application, because he does not believe that the variance is the minimum necessary to alleviate the difficulty, in that a lesser variance could be granted and still allow the applicant to obtain the same square footage. Mr. Simon said he objects, because he feels the deck can be redesigned without encroaching that much on the rear yard. Mr. Gunther asked if there was any further discussion. There being none, on motion of Mr. Wexler, seconded by Mr. Gunther, the following resolution was proposed and ADOPTED unanimously, 5-0. RESOLVED, that this is a Type II action having no significant impact on the environment pursuant to 6 NYCRR §617 et seq. Accordingly, no further action under SEQRA is required. Zoning Board October 28, 1998 Page 14 On motion of Mr. Winick, seconded by Ms. Martin, the following resolution was ADOPTED, 3-2. Mr. Gunther and Mr. Simon were opposed: WHEREAS, Brank K. Mailer and Sheryl A. Odentz Mailer have submitted an application to the Building Inspector, together with plans to construct a deck at the rear and side of the property. The deck as proposed has a rear yard setback of 9 ft. where 25 ft. is permitted pursuant to Section 240-36B(3); and further, the deck increases the extent by which the building is nonconforming pursuant to Section 240-69 for a residence in an R-15 Zone District on the premises located at 7 Winged Foot Drive and known on the Tax Assessment Map of the Town of Mamaroneck as Block 209 Lot 227; and WHEREAS, the Building Inspector has declined to issue such permit on the grounds that the plans submitted failed to comply with the Town of Mamaroneck Zoning Ordinance with particular reference to Section 240-36B(3), Section 240-69; and WHEREAS, Brank K. Mailer and Sheryl A. Odentz Mailer submitted an application for a variance to this Board for the reasons set forth in such application; and WHEREAS, this Board has examined the plans, inspected the site, reviewed the application and has heard all persons interested in this application after publication of a notice thereof and a hearing thereon; and WHEREAS, the Zoning Board of the Town of Mamaroneck makes the following findings as required by New York State Town Law §267-b: 1. The Board finds that the benefit to the applicant from the granting of the variance outweighs any detriment to the health, safety and welfare of the neighborhood. In reaching this conclusion, the Board considered the following factors: A. The variance requested will not create an undesirable change in the character of the neighborhood, or a detriment to nearby properties created, because there is a substantial side yard, 23 ft. at the nearest point of the proposed deck, and a wooded buffer to the Leatherstocking Trail to the rear of the property; B. Given the slope of the property, the applicant cannot achieve its goals of increasing the area of the deck by any reasonable alternative that does not involve a variance; C. The variance is not substantial, give the overall size of the property and the size of the deck relative to that property; D. Given its location on the property, the deck will not have an adverse impact on the physical or environmental conditions in the neighborhood or district; E. It is not a self-created difficulty, given the problem of the slope of the site and the irregular shape of the property; F. The granting of this variance is in harmony with the general purposes and intent of this Ordinance and will not be injurious to the neighborhood or otherwise detrimental to the public welfare; G. The variance is the minimum necessary to alleviate the difficulty detailed in the application yet also preserves and protects the character of the neighborhood and the health, safety and welfare of the community; Zoning Board October 28, 1998 Page 15 H. The strict application of the Zoning Ordinance and the Town Code would deprive the applicants of the reasonable use of the land/or building, and the variance granted by this Board will enable such reasonable use. NOW, THEREFORE, BE IT RESOLVED, that the subject application be and the same is GRANTED, subject to the following conditions: 1. This variance authorizes the construction as shown on the plans presented and no other. 2. The applicant shall obtain a building permit within six (6) months of the filing of this Resolution. 3. The building permit shall be void if construction is not started within six (6) months and completed within two (2) years of the date of said permit. 4. Construction shall be in substantial compliance with the plans submitted in connection with this application. This decision shall be filed with the Town Clerk as provided in Section 267-a(2) of the Town Law. Mr. Gunther informed the applicant to see the Building Department during regular business hours for a permit. The Secretary read the next application as follows: APPLICATION NO. 1 - CASE 2324 (adjourned 9/10/98; 9/23/98) Appeal by Lauren Miralia, 210 Hommocks Road, of a determination by the Building Inspector, dated 6/29/98, that the columns, piers, posts, pillars, capitals and gates that are part of the fences and walls at the Pressman residence located in an R-50 Zone District at 209 Hommocks Road and known on the Tax Assessment Map of the Town of Mamaroneck as Block 417, Lot 107, comply with the height limitations set forth in Section 240-52. William Maker, Jr., counsel for the applicant, of 2180 Boston Post Road, Larchmont, appeared along Mr. Miralia. Mr. Maker informed the Board that this is an adjourned matter, which has been discussed a great deal. At the last meeting, there were requests for legal research on some of the issues raised. Mr. Maker said Ms. Gallent was not present at that meeting and said that Mr. Davis was counsel for the Board at that meeting. Mr. Maker said subject to research he performed, he called Mr. Davis and told him what he had not found anything that was instructive on the issue. Mr. Maker said he will summarize his principal arguments, marked exhibit#1, which is a part of the record. Mr. Gunther asked if Mr. Maker provided a copy to the other attorney. Mr. Maker had not given a copy to Mr. Gaines, the attorney representing the Pressman's, but did so at this time. Mr. Maker continued his presentation stating exhibit#1 are the principal points, but there are two other issues. The principal argument that has to be made is that the ordinance provides that walls in front yards can only be 4 ft. high, side yards no more than 5 ft. The sections of the wall he is talking about are on part of the front wall and the side wall. The ones in the front do measure more than 4 ft. with the topping, the ones on the side are greater than 5 ft. high. It does not matter how they are categorized, posts, pillars, columns, capitals, because if not considered those items they are just another part of the wall. If they are a part of the wall, they have to maintain the 4 ft. or the 5 ft. height. If they are considered posts, pillars, Zoning Board October 28, 1998 Page 16 columns,capitals, they too must comply with the ordinance. Mr. Maker acknowledges there is a statutory exception called ornamental or decorative features. It is conceivable the Board, with respect to the front wall, can say the topping on that wall is a decorative feature. From the ground to the top of it, it is approximately 5 ft., 1 ft. higher than otherwise allowed and therefore is legal. In reference to the sections of the wall on the side even if the Board comes to that decision, at least one would exceed the 6 ft. height. Mr. Maker said the two other points he would like to make are as follows. The chair person at the last discussion voiced a concern that backfilling, which is what was done around areas on the side for the sole purpose of complying with a zoning ordinance, is perhaps something that should not be tolerated. Lastly, Mr. Wexler had asked Mr. Maker to inform the Board whether the backfill on the side area did intrude into the reserve strip. Mr. Maker stated that Mr. Miralia has photographs, marked exhibit #2, which illustrates the backfill does intrude upon the reserve strip,which means that in order to attempt compliance with the ordinance the Pressman's used other property. Lauren Miralia, of 210 Hommocks Road, Larchmont, addressed the Board. Mr. Miralia said he is the appellant, working with his counsel, William Maker. Mr. Miralia has a site plan that shows, in answer to Mr. Wexler's questions at the prior meeting, whether there is any encroachment past Mr. Pressman's property line. Mr. Maker proceeded to explain explaining the measurement process used in the photographs submitted to the Board. The backfill on the lower post comes into Mr. Miralia's property more than 6 ft. No one asked for or was given permission to do this and Mr. Miralia would like it removed. If it is removed, the posts would no longer meet the zoning code. Mr. Maker asked when the Board was looking at the large 8 in. by 10 in. photographs, was it referred to as the lower post? Mr. Wexler said no. Mr. Miralia said for record, it does encroach on the property next door. A discussion ensued regarding the grades marked on the site plan prepared by Aristotle Bournazos, P.C. Mr. Maker said the plan was submitted at the time the original wall, etc. was constructed, before the concept of height and backfilling became an issue. Ms. Gallent said in order for the Board to consider comments regarding the site plan, it must be a part of the record. At this point in time, the site plan was marked exhibit#3. Mr. Wexler said it also indicates there is no change in the grade, and no indication from the photographs, other than the lone pier, that there wasn't a rise there previously. Mr. Maker said Mr. Miralia's testimony was that the mounds around the post, etc., were not present until after it was determined the piers were too high and Mr. Pressman attempted to comply with the ordinance and the Appellate Division's rule. Mr. Maker said the purpose of the site plan is to show they are indeed built on the property line. Anything that extends southerly, has to be on the reserve strip. Mr. Gunther asked Mr. Miralia to point out the issues being discussed on the site plan, which Mr. Miralia proceeded to do in detail. Mr. Maker put an X in the reserve strip, pertaining to the area Mr. Miralia identified. Mr. Miralia said the grading for the uphill pier encroaches 3 ft. into the property area and the downhill pier encroaches from 6 ft. to 8 ft. Mr. Miralia said the photographs presented to the Board are only of the downhill pier. Mr. Miralia said there are two piers. For identification purposes, the capital on one has the word "FANMONT" with a few letters missing. The gray line down the middle, for identification purposes, represents the time the Pressman's were going to install a gate, which was denied. Zoning Board October 28, 1998 Page 17 Mr. Gunther asked if there were any other questions from Board members. There being none, he asked if Mr. Simon and Mr. Winick had a chance to read the record prior to this evening's meeting. Each said they had read the record prior to the meeting. Mr. Gunther asked Mr. Maker if he had any other comments. There being none, Mr. Gunther asked if there were any comments from the public. Steven Gaines, the attorney representing the Pressman's appeared. Mr. Gaines said he was before the Board at the last meeting, and said he was not sure if the plans reviewed this evening were as-built plans or not. If it is a concern of the Board as to precisely where the property line is that separates the Pressman property from the reserve strip, he feels the materials processed this evening are inadequate for the Board to reach that determination. He said it is his understanding that the pillars are not right on the property line, whatever grading was done to be in compliance with the zoning code, even if it extends onto the reserve strip,can be removed and there still would be proper grading leading up to the columns that brings it into compliance. Mr. Gaines said he did not anticipate that there was going to be an argument of the boundary line. Mr. Gunther asked if Mr. Gaines is suggesting a new survey be supplied. Mr. Gaines said the applicant has the burden to provide evidence which would be sufficient for the Board to make a finding that the grading is on somebody elses property. Mr. Gunther asked if there were any questions from Board members. Mr. Maker said to rebut what Mr. Gaines said, the wall that was built by the Pressmans in 1995 is at the same location as wall that was torn down in part or built on top of. Mr. Miralia said on the side yard the uphill column, the one closest to Hommocks Road, receives the new wall that the Pressmans constructed. The lower column, receives an old wall that has been in existence for many years which has never been changed. That wall is what is shown on the site survey as the existing wall. It has not been touched, and the pier running into that wall is exactly in the same place as the old pier. Mr. Maker said it shows the old wall that was still there at the time these plans were submitted in connection with the preparation of the new wall, and that old wall has been moved. The lower pier in question is in the same exact location as the pier was for the old wall. Therefore, if it is 6 ft. south of that it has got to be on the reserve strip, since that site plan shows those walls and piers to be built exactly on the line, over 2 in. of the property line. Mr. Winick asked if Mr. Maker is representing it as an as-built plan. Mr. Maker said no, not an as-built plan of the new wall. It represents what existed prior to any new construction in 1995. Mr. Winick asked Mr. Maker to enlighten him about the pillar that is closest to the water at the reserve strip and asked about the history, if any, of any change of grade around the other pillar. Mr. Maker said it too has been backfilled. Mr. Miralia said the other pillar has also been backfilled. He said a Mr. Spalverie of Harrison delivered fill which was then placed around both of the piers/pillars on the reserve strip. Mr. Miralia said the reserve strip was totally level, there was never any encroachment upon it and the walls there today are in the same approximate location as they were before, that is the front wall. The back wall on the second pier, down the hill toward the harbor, has never been changed. It was the subject of an application in front of the Board several years ago which the Board rejected. Fill has also been applied to the front curve Zoning Board October 28, 1998 Page 18 between the side of Pressman's wall and the front of Hommocks Road. If the fill were removed, nothing would be in compliance. Mr. Gunther asked if there were any other questions. Mr. Gunther read a draft resolution and asked if there were any further questions from Board members. A lengthy discussion amongst Board members ensued regarding the pillars/piers, the method of measurement used to determine the height, the grade around the piers, the reserve strip and the wall. There being no further discussion, on a motion made by Mr. Gunther, seconded by Simon, it was unanimously 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. Gunther, seconded by Mr. Simon, the following resolution was ADOPTED: Appeal by Lauren Miralia, 210 Hommocks Road, of a determination by the Building Inspector, dated 6/29/98, that the columns, piers, posts, pillars, capitals and gates that are a part of the fences and walls at the Pressman residence located in an R-50 Zone District at 209 Hommocks Road and known on the tax assessment map of the Town of Mamaroneck as Block 417, Lot 107, comply with the height limitations set forth in Section 240-52. Lauren Miralia(the "Applicant")has appealed a two part determination of the Town of Mamaroneck Director of Building that certain posts or pillars that are part of a perimeter wall associated with the residence owned by Mr. and Mrs. Pressman at 209 Hommocks Road, which is located in an R-50 zoning district, comply with the height limitations for such pillars or posts contained in section 240-52 of the Town of Mamaroneck Zoning Ordinance. After careful consideration of the issues and arguments presented, the Board sustains the Director of Building's determination in part and reverses it in part as explained below. Section 240-52 provides in pertinent part that "in any residence district [a] fence or wall shall not exceed four (4) feet in height in any required front yard and/or five (5) feet in height in any required side or rear yard." 240-52(A). It also provides that "gates, posts, capitals and pillars shall comply with the height requirements of this provision,except that ornamental or decorative features on top of posts, pillars, capitals and gates may exceed [these] height limitations . . . by no more than twelve (12) inches. " 240-52(B). The Applicant contends that the Director of Building erred in concluding that two pillars located in the front yard portion of the Pressman's perimeter wall comply with the height requirements of § 240-52, because, he contends, the pillars and their granite "capitals" exceed the four foot statutory maximum. The Applicant contends that unless the granite "capital" is an ornamental feature, the post exceeds four feet in height. After careful consideration, the Board determines that the Director of Building properly determined that the posts in the front yard meet the height requirements of§ 240-52. The Board rejects the Applicant's assertion that the one foot high granite slab atop the post is a capital. Rather it is a decorative feature placed on top of the post. The slab is not integral to the post as would be a capital. It is a distinct decorative feature resting on top of the post. Because this decorative element does not exceed 12 inches in height, it complies with § 240-52(B). Accordingly, the Board sustains the finding of the Director of Building with respect to the height of the posts in the front yard. The Applicant also appeals the Director of Building's determination that two posts or piers located on the "Reserve Strip" on the side of the Pressman's property meet the five foot height requirement ® Zoning Board October 28, 1998 Page 19 of § 240-52(A). For the reasons set forth below, the Board affirms the Director of Building's determination with respect to one of these posts and reverses it with respect to the other. The pier on the left (closest to Hommocks Road) as one looks at the house from the Reserve Strip is integral to the wall surrounding the house. The pier on the right stands alone and is not incorporated into the wall. The record reveals that these posts, at their highest point, rise approximately 6 feet, 10 inches from the ground. In a prior appeal, (Case 2179), this Board determined that pursuant to section 240-52(A), these posts are limited to a height of six feet (five feet plus a decorative feature not exceeding 12 inches). With respect to the pier on the left, the Board finds that its height meets the requirements of the Code. The grade of the property is continuous along the length of the wall to the pier. The grade then naturally falls off on one side of the pier, requiring the pier to be taller on that side - hence the 6 feet, 10 inch measurement in that area. This increase in height on that side is necessary to make the pier level and, in the Board's view, does not constitute impermissible height. Indeed, measured from the natural grade, the height of this pier is 6 feet and complies with the code. The same cannot be said for the stand alone pier on the right. There, the record reveals, the ground is level and the pier rises 6 feet, 10 inches from the level ground. Rather than removing a portion of that pier to bring it within the height limit, the Pressmans sought to achieve compliance with the Board's interpretation of the Code, which was affirmed by the Court, by mounding dirt at the base of the post,effectively raising the grade at that one spot. The Director of Building determined that, measured from the top of the dirt mound, the post complies with §240-52's height limitations. The Board rejects this determination. Under the Zoning Code, height is measured from finished grade to the highest point of the structure. See §240-4. "Finished grade" is defined as "the elevation of the completed surfaces of lawns, walks and roads adjoining the wall at that point." Id. The Board finds that the mound of dirt placed at the base of the pier does not constitute"finished grade." The record reveals that the mound rises from an otherwise flat surface to cover the bottom portion of the pier, solely to hide the portion of the pier that exceeds the height limitation. It is not part of a completed lawn surface, but an artificial hill created in an effort to achieve compliance without removing the offending portion of the pier. Thus, the Director of Building erred in measuring the height of that pier from the top of the dirt mound. When measured from finished grade, the pier exceeds the six feet total height permitted by the Code. Accordingly, the Board reverses the determination of the Director of Building that this pier complies with § 240-52(A). This appeal is hereby denied in part and granted in part as set forth herein. This decision shall be filed with the Town Clerk as provided in section 267-a(2) of the Town Law. Mr. Gunther called a five minute recess at 8:30 p.m. The meeting reconvened at 8:35 p.m. The Secretary read the next application as follows: APPLICATION NO. 2 - CASE 2326 (adjourned 9/23/98) Application of Dr. &Mrs. Anthony Loebel requesting a variance to construct a second floor to an existing 11/2 story dwelling. The second story addition as proposed has a side yard of 6.1 ft. where 10.0 ft. is required pursuant to Section 240-38B(2)(a), a rear yard of 21.2 ft. where 25.0 ft. is required pursuant to Zoning Board October 28, 1998 Page 20 Section 240-38B(3); and further, the second story addition increases the extent by which the building is nonconforming pursuant to Section 240-69 for a residence in an R-7.5 Zone District on the premises located at 34 Harrison Drive and known on the Tax Assessment Map of the Town of Mamaroneck as Block 502 Lot 147. Larry Gordon, the architect for the project, of 17 North Chatsworth Avenue, Larchmont, appeared. Mr. Gordon is proposing to dormer out a 11/2 story residence, with bedrooms and bathrooms on the second floor. The footprint of the house is not increasing, nor going above the existing ridge line. Mr. Gordon pointed out that the site is quite irregular, the existing house is fairly close to one of the side yards., probably pushed over when originally built. Mr. Gordon is proposing to dormer the second floor. The same ridge line will be kept. The only alteration on the first floor is the entrance area. Mr. Gordon is not proposing to go out of the existing footprint of the house. He said they would like to create the dormers in the ridge line and demonstrated the portion on the side view that would be extended. The elevation at the rear of the house will remain. Mr. Gunther asked if Mr. Gordon has reviewed the plans with the neighbors. Mrs. Loebel said the plans were reviewed with Jean Young, and after discussion changed the plans according to her requests. Mrs. Loebel said she also had a letter from Vicki Horowitz. Mr. Gunther said he has letters from Jean Young, Douglas Allen Fais and Lois Patricia Fais, Francoise &Jacques Mounier and Peter Crowley which he will address later. Mrs. Loebel submitted the Horowitz letter, marked exhibit#1. Dr. Loebel said it is the only house in the area that does not have dormers. The vast majority of the homes in the vicinity have two floors, with the one exception. The Board reviewed the photographs submitted with the application. Mr. Gunther asked if there were any other questions. Mr. Wexler asked whether the applicant considered putting the dormers on the back of the house. Mr. Gordon said by putting the dormers in the front of the house, it broke up the massing and did not present itself as a sheer wall going straight up as the house is situated somewhat on a hill. Mrs. Loebel said there are three bedrooms on the first floor, one of which is very small. Mr. Winick asked if there are two bedrooms downstairs and four upstairs. Mrs. Loebel said that is correct. One bedroom will be used as a conference room, because she works from home. Mr. Gunther asked if there were any questions or comments from the public on this application. Jean Young, of 32 Harrison Drive, appeared and informed the Board that she owns the house next door to the Loebels. She said she has written a letter, which the Board has, and submitted some photos, marked exhibit #2 and exhibit #2A. The Loebels have been good neighbors. Mrs. Loebel informed them immediately about their plans. Ms. Young said if dormers were added similar to those on her own house, the Loebels would have two extra bedrooms upstairs. Ms. Young read the letter she submitted to the Board and is a part of the record, making reference to the pictures submitted, marked exhibit #2 and exhibit#2A. Ms. Young said the Loebel house is much larger and will have seven bedrooms and five baths. In order to accommodate the front bedrooms, the plan calls for two very large roof extensions. It will make the house much taller in the front and will disturb the beauty of the tree with branches that hang over the roof. To accommodate the two bedrooms and two additional baths at the rear of the house, the roof line will be made almost horizontal, not as attractive as the current sloping roof. It makes a large, squarish wall. It extends the rear of the house. Ms. Young said her family enjoys the outdoors, the back patio is photo#5,as there are trees on all sides. If the proposed addition is built, it will go above the trees Zoning Board October 28, 1998 Page 21 causing the Youngs to look at the side of a house instead of treetops. In addition, there is an air conditioning unit between the two houses, 6 ft. from the Young's property line. When Ms. Young asked the Loebels not to run their air conditioners, they said the windows are painted shut so they have to run it all the time. If they have four additional bedrooms and two additional bathrooms, the unit will be run more. Ms. Young said they moved out of the city, not to hear air conditioning units. Ms. Young said that the Loebel's house is situated on a lot that is smaller than that required for an R-7.5 zone. The addition will double the mass of the house, will have an impact on the privacy, light and views of all the neighbors. It erodes the property values by destroying the visual harmony and the beauty of the street. Ms. Young said the Town of Mamaroneck made zoning rules to protect the beauty of the town and urges the Board to refuse the application for a variance. Ms. Young said she is also speaking for Claudia MacDonald of 22 Harrison Drive. The MacDonald's have lived in their house for 42 years. They feel very strongly about the proposed addition and don't like the idea of a house going up so high as it looks out of character to the street. She has also voiced her concern about the Loebels using the proposed bedrooms for aging parents, and feels the house is not appropriate due to the number of steps involved. Ms. Young said she is also speaking for Peter Crowley, who purchased the house on the other side of the Loebels, in photo #2 on the photo sheet, which is 1 Cottage Circle. Ms. Young said it is a small home, all the homes in this area approximately 1 to 11/2 stories, all down hill from the Loebel's. If the Loebel house goes even higher, these houses will be shaded. These houses were built in the '40's, long before the Loebel's or her own home were built. Ms. Young said that Peter Crowley, who purchased his house two weeks before the original hearing, was not notified. Mr. Gunther read into the record a letter received from Peter and Isabel Crowley, 1 Cottage Circle, Larchmont, stating he has no objection to the proposed work as long as it does not adversely affect his interests, in which case he asks that the plans be revised. Mr. Young continued her presentation regarding the pictures submitted, and reiterated some of the problems the proposed addition will cause in her view. Francoise Mounier, the owner of the house at 16 Lundy Lane, the house behind the Loebel house, appeared and voiced her concerns. She asked that the Board refuse this application. Ms. Mounier presented and discussed pictures, marked exhibit 3, informing the Board that the rear of the Loebel house is only 21.2 ft. from her property line instead of the 25 ft. required by Section 240-38B. The Loebels are proposing an addition of three or four bedrooms to their home with a flattened the roof line, and expanding the second floor with an overhang to the rear of the house which will make the top of the house closer to her property. The east windows of Ms. Mounier's house directly face the Loebel's house. Picture #2 is taken from the living room of the first floor, and picture #3 is taken from her master bedroom, second floor. With the extension at the rear of the house, her tenants' privacy will be invaded more than it currently is. From the master bedroom windows it would look directly into the windows of the new proposed addition, instead of looking over the roof as they currently do. The light reaching her house would be significantly reduced, if the walls are quite higher as on the proposed addition. The windows will face the second floor of Ms. Mounier's house. The east windows have morning sunlight which enters the house. The property on which the Loebel house is situated is only 75 ft. deep and 95 ft. wide, less than the 7,500 sq. ft. required in Section 240-69. Such a large house would look awkward on such a small lot. Ms. Mounier said she is currently renting the house, but intends to reside there at a future time. She also wrote a letter to the Board a few weeks ago. Mr. Gunther read into the record the letter previous submitted by Ms. Mournier, dated September 21, 1998. Mr. Gunther asked if there was anyone else that wished to comment on this application. Zoning Board October 28, 1998 Page 22 Doug Fais, who lives across the street at 35 Harrison Drive, appeared. Mr. Fais said he is not as affected by this proposal as the neighbors. Mr. Fais gave the Board some construction history regarding the builder of the houses in the area He said even though the Loebels have a bedroom on the ground floor, it should not be used as a bedroom as it is not healthy. Ms. Fais said all the houses, including the Loebel's, are built on rock. After further comments regarding the layout of the homes in that area, the proposed addition and the Loebel's need for more room, Mr. Fais said, as noted in his letter, he is not concerned and does not object. Claudia MacDonald of 22 Harrison Drive appeared and said she has resided there for 43 years. Ms. MacDonald said Jean Young has already spoken for her, because she had to leave the meeting earlier. Ms. MacDonald agrees that the proposed addition is too large for the property, will be unsightly, visually unattractive from an architectural and environmental point of view. She feels it is out of character with the neighborhood, and feels four bedrooms is excessive. Ms. MacDonald said if that much space is needed, the Loebels should look for another house. Mr. Gunther asked if there were any other comments on this application. Ms. Young said the attics of the homes in that area are similar, there are two comfortable bedrooms with a bath in between. The house still looks like it fits into the street. If the Loebels consider doing that, they would have the space and the house will still look great. Mr. Fais said when you move around in the attic rooms, you bump your head. Mr. Gordon asked for clarification on a picture taken of the house that faces the rear which was submitted and is a two-story house. The picture taken from the first floor window,appears to be almost as level with the roof block. Mr. Gunther said that picture was taken from 16 Lundy Lane. Mrs. Loebel said the addition would provide five bedrooms, four on the top, one on the bottom and four bathrooms. The small bedroom, 91/2 ft. by 10 ft., will be knocked into the kitchen to make it larger. In regard to the statement made regarding her parents and her husband's parents age, they are young and still able. The comment made about the possible removal of the beautiful trees between the houses and the branches that might have to be cut down, Mrs. Loebel's said it is on her property and she may do with it as she wishes. Mrs. Loebel said they go away every weekend in the summer and the air conditioning is not used. During the week the air conditioning is on. Mrs. Loebel said in reference to the point of the harmony of the properties and the style, that is something that Ms. Young mentioned to her and she tried to make the house look like those on the street by giving a dormered look. The basement room has no heat and no space for a bathroom, because of the concrete, storage and rock. Mrs. Loebel submitted pictures, marked exhibit #5, of 16 Lundy Lane which towers over her house, as well as pictures of the relationship between Mrs. Loebel's house and Ms. Young's home. She also showed a picture of where Mr. Crowley's home is on Cottage Place, which is so much below Mrs. Loebel's house she cannot understand how he will be affected. Mrs. Loebel said the roof line is not being raised, it is staying the same. If anyone is affected, it will be minimal. Dr. Loebel said the space between the properties contains a great amount of foliage,which blocks the view from one house to the other. Increasing the size of the house on the second floor is barely visible to the Young's house given the amount of shrubbery, foliage and trees that exist. In regard to 16 Lundy Lane, that house has two floors and towers above the Loebel's house. He does not know how they can object to Dr. Loebel's proposal, as it will make Dr. Loebel's house look similar to theirs making it more in character with it. Dr. Loebel feels his house improves the look of Harrison Drive, is entirely in keeping with the other house on both sides of Harrison Drive and increases the attractiveness of the visual aspects Zoning Board October 28, 1998 Page 23 of his house for marketability, which at this point in time is unmarketable. Dr. Loebel feels that contrary to other statements, the proposed improvements which are increasing the architectural value of his house, will improve the value of surrounding properties and not decrease it. Dr. Loebel also called the Board's attention to the house on the other side of Harrison Drive, #37 Harrison Drive, a photograph in exhibit#5, as an example a house in the immediate vicinity of their house in terms of the character of the surrounding houses. The house has two and one-half or three floors. Dr. Loebel feels he and his wife have gone out of their way to try to accommodate the objections of their neighbors. Mrs. Loebel said in regard to the concern of Ms. Young about looking at the trees, she will be glad to plant trees on the side addition so Ms. Young can look at a lot of trees. Mr. Gunther asked if there were any other comments. Francoise Mournier of 16 Lundy Lane, said even if the line of the roof is not changed, the wall will be higher in the back. Ms. Young said in response to the question about the house on Lundy Lane, the houses on Lundy Lane are two stories and its neighbors are two stories. Those houses are on a different street. The houses on Harrison Drive are all one and one-half stories or less, except for the Horowitz's who have dormered up in such a way that the house is rather high, but it is not close to other houses and is set back more. Ms. Young appreciates the fact that the Loebels have made a dormered look, but still object to the size and height of the house. Ms. Young appreciates the offer to plant greenery, but that will not be easy. The side yard has been completely cemented over with a cement walk, has a cement stairway and a cement wall. Mr. Fais reiterated the points previously made about a bedroom in a basement room being unhealthy, and the fact that the builder built an upside down house on rock. Ms. Martin asked the current square footage. Mr. Gordon said the current square footage on the first floor is 1,490 sq. ft. and the addition will add approximately 1,000 sq. ft. Mr. Gunther asked about the second floor. Mr. Gordon said approximately 1,200 sq. ft. Mr. Gunther informed the Board members that the minimum lot area is 7,500 sq. ft. This particular property is 8,178 sq. ft. and is above the minimum lot requirement. Mr. Wexler said the neighbors are losing sight of the fact that the variance requested is a portion of the back of the house and a portion of the side of the house. The front of the house is as-of-right. If the applicant so chooses, he can make the house even higher by raising the ridge line, because the code allows a 21/2 story house with an average roof of 35 ft. above grade. The question is the back of the house and how that impacts on the community. A discussion ensued between Mr. Wexler and Mrs. Loebel regarding this issue. Mr. Gunther asked Mr. Gordon if the addition, as proposed, is the absolute minimum necessary. Mr. Gordon said they feel it is, in order to get the number of bedrooms they require. A discussion ensued between Mr. Winick and Mrs. Loebel regarding the number of bedrooms proposed and the reasons for the addition, that being a possible addition to the family, privacy and having the family all on one level. Mr. Gunther asked if there were any other questions before closing the public hearing. Zoning Board October 28, 1998 Page 24 Jean Young asked Mr. Gunther if the property is not in compliance with the zoning ordinance, because according to the assessor's records the property is 95 sq. ft. x 75 sq. ft. Mr. Gunther explained how the assessor arrives at the calculations provided on the record. Ms. Young said in reference to Ms. Martin's statement that the Zoning Board looks at the impact on the community, four neighbors have come to speak in response to this addition and how it will negatively impact the neighbors' enjoyment and their property values. Mr. Gunther asked if there were any other questions from Board members. Mr. Wexler voiced his concerns stating he feels that the applicant can achieve their goals by modifying the plans to lessen the impact on the rear of the house. The front of the house is as-of-right. There is a one- story structure on the side of the house that can be incorporated above it to clean up some of that space. There are ways it can be achieved without having a variance of this nature. A variance may not even be needed. This must be determined before the close of the public hearing. Mrs. Loebel said thought has been given in regard to the current proposal, as objections had been received and considered. To do anything other than what is being proposed, will mean a loss of square footage that is really needed. Mr. Wexler said Mrs. Loebel can achieve what is wanted with rethinking the shape of the project. Mr. Wexler said Mrs. Loebel has a capable architect she is working with who can address this issue. Mr. Winick expressed concerns stating the front of the property is not the issue at all. No matter what use is intended for the additional rooms, the current design is out of keeping with the character of the neighborhood in a sense that it creates, in room count, a larger house than is customary. The inside of the house is not a concern of the Board. However, his concern is the impact on the side yard being 6 ft. from the property line. Because of the square footage being sought, there is an impact on the side yard. The trees currently on the side yard, may not always be there. That is an area of concern, as this is a nonconforming side yard, there is a large impact and he does not believe it is entirely necessary. Mr. Gunther also voiced concern, stating the law requires that what is requested is the minimum necessary to alleviate the difficulty. If there is another alternative that can achieve the same relief, that is the way the applicant should proceed. Mr. Gunther also has great concern about the massing that is created on the side of the house, due to the amount of wall created. He thinks there are other alternatives that might be considered in the design prospective, to obtain similar objectives of the amount of space that is needed. The Board also considers whether or not an undesirable change will be produced in the character and the neighborhood. Mr. Gunther said that has been demonstrated by the individuals who have commented adversely on this application, which is one more reason why he would not vote for it. Mr. Gunther asked if any other Board members wished to comment, before proceeding. There being no further comments, Mr. Gunther asked Mr. Gordon is he would like to proceed to a vote or adjourn to the next meeting. Mr. Gordon asked about the procedure for an adjournment. Mr. Gunther said Mr. Gordon can be put back on the agenda for next month, as long as there is no increase in the variance requested other than what has already been requested and is on the calendar, otherwise the application will have to be renoticed. Ms. Gallent informed Mr. Gordon that if he is going to request a variance greater than what has been noticed, it will have to be renoticed. Mr. Gunther explained for the audience that the several Board members provided comments for the applicant, because they were not so inclined to vote in favor of the application as presented. The applicant has an opportunity to adjust the design to something different that what has been presented this evening. The Board will then have another chance to review the new submission and make a determination on that Zoning Board October 28, 1998 Page 25 submission. The Board will then adjourn this application to the next meeting, which is Tuesday, November 24, 1998, at which time this application will again be called. Upon Mr. Gordon's request, on a motion made by Mr. Gunther, seconded by Mr. Simon, it was unanimously RESOLVED, that the Public Hearing of case#2326 be,and hereby is,adjourned to the November 24, 1998 Zoning Board meeting. The Secretary read the next application as follows: APPLICATION NO. 3 - CASE 2327 (adjourned 9/23/98) Application of Ben and Hollis Sax requesting a variance to construct a two-story addition over present driveway in front of existing garage. The two-story addition as proposed has a side yard of 5.0 ft. where 10.0 ft. is required pursuant to Section 240-37B(2)(a); and further, the addition increases the extent by which the building is nonconforming pursuant to Section 240-69 for a residence in an R-10 Zone District on the premises located at 8 South Drive and known on the Tax Assessment Map of the Town of Mamaroneck as Block 108 Lot 238. Arnold Wile, the architect for the project, of 34 Marble Avenue, Pleasantville, New York appeared, along with Mr. & Mrs. Sax. Mr. Gunther said the application was referred to the Westchester County Department of Planning and there was no response. Mr. Wile said at the last meeting it was indicated that the submitted plans had an error. The plans were revised and submitted. Mr. Gunther read a memo sent to James Athey, Environmental Coordinator, into the record. Mr. Wile said they are proposing a two-story addition which would cover some of the existing driveway. It would not increase the degree of nonconformity in the two directions it goes, because it is 3 to 31/2 ft. from the existing side yard. The house was built on the site as it exists, because of the rocky site and it was the only location where it could be built. The addition will consist of a family room and bedroom. Mr. Winick asked if there was a garage under it. Mr. Wile said yes, on the lower level. Mr. Wexler asked Mr. Wile to refresh the Board on change that was made. Mr. Wile said the proposal is for the addition to be 5 ft. on the side yard, but the original application stated 61/2 ft. A technical mistake was made on the original application. The plan is the same,just the footage is changed. Mr. Gunther asked if there were any other questions. There being none, on motion of Mr. Wexler, seconded by Mr. Gunther, the following resolution was proposed and ADOPTED unanimously, 5-0. RESOLVED, that this is a Type II action having no significant impact on the environment pursuant to 6 NYCRR §617 et seq. Accordingly, no further action under SEQRA is required. On motion of Ms. Martin, seconded by Mr. Gunther, the following resolution was ADOPTED: WHEREAS, Ben and Hollis Sax have submitted an application to the Building Inspector, together with plans to construct a two-story addition over present driveway in front of existing garage. The two- story addition as proposed has a side yard of 5.0 ft. where 10.0 ft. is required pursuant to Section 240- 37B(2)(a); and further, the addition increases the extent by which the building is nonconforming pursuant Zoning Board October 28, 1998 Page 26 to Section 240-69 for a residence in an R-10 Zone District on the premises located at 8 South Drive and known on the Tax Assessment Map of the Town of Mamaroneck as Block 108 Lot 238; and WHEREAS, the Building Inspector has declined to issue such permit on the grounds that the plans submitted failed to comply with the Town of Mamaroneck Zoning Ordinance with particular reference to Section 240-37B(2)(a), Section 240-69; and WHEREAS, Ben and Hollis Sax submitted an application for a variance to this Board for the reasons set forth in such application; and WHEREAS, this Board has examined the plans, inspected the site, reviewed the application and has heard all persons interested in this application after publication of a notice thereof.and a hearing thereon; and WHEREAS, the Zoning Board of the Town of Mamaroneck makes the following findings as required by New York State Town Law §267-b: 1. The Board finds that the benefit to the applicant from the granting of the variance outweighs any detriment to the health, safety and welfare of the neighborhood. In reaching this conclusion, the Board considered the following factors: A. Based on personal observation of the property and the neighborhood, no undesirable change will be produced in the character of the neighborhood, or a detriment to nearby properties created, because the addition will be located within the footprint of the house and the homeowner is using original windows and other building material to maintain its style; B. According to the testimony of the homeowners and given the location of the house on the property and the condition of the property, there is no reasonable alternative; C. The variance is not substantial, given that the location of the addition is in the footprint of the house; D. There will be no adverse impact on the physical and environmental conditions in the neighborhood or district; E. This is not a self-created difficulty, but is necessitated by the location of the house on the property and the condition of the property; F. The granting of this variance is in harmony with the general purposes and intent of this Ordinance and will not be injurious to the neighborhood or otherwise detrimental to the public welfare; G. The variance is the minimum necessary to alleviate the difficulty detailed in the application yet also preserves and protects the character of the neighborhood and the health, safety and welfare of the community; H. The strict application of the Zoning Ordinance and the Town Code would deprive the applicants of the reasonable use of the land/or building, and the variance granted by this Board will enable such reasonable use. NOW, THEREFORE, BE IT RESOLVED, that the subject application be and the same is GRANTED, subject to the following conditions: Zoning Board October 28, 1998 Page 27 1. This variance authorizes the construction as shown on the plans presented and no other. 2. The applicant shall obtain a building permit within six (6) months of the filing of this Resolution. 3. The building permit shall be void if construction is not started within six (6) months and completed within two (2) years of the date of said permit. 4. Construction shall be in substantial compliance with the plans submitted in connection with this application. This decision shall be filed with the Town Clerk as provided in Section 267-a(2) of the Town Law. Mr. Gunther reiterated that notice was received from Rick Bernstein requesting an adjournment, due to the death of his father, on the following application: APPLICATION NO. 4 - CASE 2329 (adjourned 9/23/98) Application of Rick Bernstein requesting a variance to construct a railroad tie retaining wall with a 4 ft. high chain link fence. The railroad tie retaining wall with a chain link fence as proposed has an overall height of 9 ft. 6 in. where a maximum 5 ft. is permitted pursuant to Section 240-52A for a fence or wall in an R-20 Zone District on the premises located at 24 Winged Foot Drive and known on the Tax Assessment Map of the Town of Mamaroneck as Block 204 Lot 310. OTHER BUSINESS Ms. Gallent gave the Board a summary of a case on which a variance was overturned because there was no evidence in the record to support it, at which time a discussion ensued regarding this case. APPROVAL OF MINUTES On a motion made by Mr. Gunther, seconded by Mr. Simon, the Minutes of September 10, 1998 were approved, 4-1, Mr. Winick abstained, because he was not at the meeting at that time.. On a motion made by Mr. Gunther, seconded by Wexler, the Minutes of September 23, 1998 were approved, 3-2, Mr. Simon and Mr. Winick abstained, because they were not at the meeting at that time. NEXT MEETING The next meeting of this Board will be held on Tuesday, November 24, 1998. ADJOURNMENT On a motion of Mr. Gunther, seconded by Mr. Simon, the meeting was adjourned at 10:20 p.m. Margue to Roma, Recording Secretary