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HomeMy WebLinkAbout1996_09_04 Zoning Board of Appeals Minutes MINUTES OF THE REGULAR MEETING OF THE ZONING BOARD OF THE TOWN OF MAMARONECK SEPTEMBER 4, 1996, IN THE COURT ROOM, TOWN CENTER 740 WEST BOSTON POST ROAD MAMARONECK, NEW YORK Present: Thomas E. Gunther, Chairman Nina Recio J. Rene Simon Arthur Wexler 14 s Absent: Patrick B. Kelleher 4 RECEIVED Also Present: Judith M. Gallent, Counsel ,„sf, NOV 26 William J. Gerety, Assistant Building Inspector pautcartivr Erica Rizzi, Public Stenographer Carbone & Associates, Ltd. i 111 N. Central Park Avenue rl OBI Hartsdale, NY 10530 Marguerite Roma, Recording Secretary CALL TO ORDER The meeting was called to order by Chairman Gunther at 7:50 p.m. Mr. Gunther informed the applicants that Mr. Kelleher, one of the Board members, is in Washington,DC on business and will not be available this evening. As a result, only four out of the five voting members are present, which means any action needs three Board members for approval. When a case is called, if the applicant wishes to adjourn until the next meeting, it will be done without any prejudice. Mr. Gunther then read a note from applicant Richard Hein, application 2239, as follows: "To Board Members: Due to unexpected circumstances, kindly adjourn my scheduled hearing from your upcoming meeting of September 4, 1996 to the next meeting." Mr. Gunther made a motion that application#4, Case 2239, be adjourned to the next meeting, which was seconded by Mr. Simon and unanimously approved, 3-0, with one abstention, Ms. Recio. Mr. Gail Vasilhioti appeared and said she would like to speak against that application and asked when the next meeting will be held. Mr. Gunther said the next meeting is in three weeks, September 25, 1996, and suggested that Ms. Vasilhioti call the Building Department to verify that case #2239 is scheduled and on the agenda. Mr. Gunther said counsel would like to make a few comments about area variances. Ms. Gallent then referred to a summary published by the New York Planning Federation which she handed out this evening, stating that it is a good summary of the law as amended in 1992. The balancing test is informed by the consideration of the five (5) factors noted in the summary. It is prudent that the Board consider each of these factors in its deliberations and make findings about each of them. Mr. Gunther said as a point of information for the public what is being referred to in the discussion is that when the Zoning Board renders a decision on an area variance application there are five (5) particular factors it examines. Basically, the standard used in considering an application is weighing the benefit to the applicant versus the detriment to the health, safety and welfare of the neighborhood or community if Zoning Board September 4, 1996 Page 2 the variance requested is granted. In making that determination, the Zoning Board must take into account the following factors: 1) Whether an undesirable change will be produced in the character of the neighborhood, or a detriment to nearby properties will be created; 2) Whether the applicant can achieve his goals via a reasonable alternative which does not involve the necessity of an area variance; 3) Whether the variance is substantial; 4) Whether the variance will have an adverse impact on physical or environmental conditions in the neighborhood or district; 5) Whether there has been any self-created difficulty Mr. Gunther thanked counsel for the advise. The Secretary read the application as follows: APPLICATION NO. 1 - CASE 2241 (formerly #2234/withdrawn 6/24/96) Application of Robert/Renee Brissette requesting a variance to construct a 5 ft. fence and 3 ft. high retaining wall. The total height of the fence and wall as proposed would be a maximum height of 14.0 ft. 4 in. where a maximum height of 5.0 ft. is allowed pursuant to Section 240-52-A for a fence in a residence in an R-6 Zone District on the premises located at 42 Hillcrest Avenue and known on the Tax Assessment Map of the Town of Mamaroneck as Block 123 Lot 446. Robert Brissette of 42 Hillcrest Avenue in Larchmont appeared. Mr. Gunther reminded Mr. Brissette that before proceeding with the application that only four voting members are present out of the five. An application needs three out of the five for approval. The Board will be happy to hear the case and render a verdict or the Board will be happy to hold its vote over to the next meeting, September 25, 1996, if the applicant prefers. A discussion followed. Ms. Gallent said the applicant needs three votes to pass. If a vote is taken at this meeting, the only way the case can be revisited is if everyone present at the next meeting votes to rehear the matter at which time the Board may do so. The applicant can present his case tonight and hold the vote until the next meeting. The absent member will receive the Minutes of tonight's meeting. A discussion followed. Mr. Brissette decided to proceed. Mr. Gunther said he realizes the application was before the Board at the June 24, 1996 meeting and withdrawn, stating Mr. Brissette and had gotten a sense from the Board in terms of various concerns and matters. Mr. Gunther asked Mr. Brissette to start from the beginning. Mr. Brissette then proceeded to discuss the drawing before the Board which revolves around safety. He wishes to create a backyard and recreational area that is both utilitarian and safe, which currently does not exist. The grade is fairly steep and there is a steep drop-off to the property directly behind to the applicant's house at 34 Edgewood Avenue. There is a concrete slab located on the other side of the retaining wall. There are approximately thirty-four children on Hillcrest Avenue at the present time, in addition to his young daughter, and he wants to create an area that is safe and useable for all. The backyard is not large, and Mr. Brissette is trying to get the maximum use out of what is a small area and install a fence to not only create a safe area for the applicant but for all. Mr. Brissette referred to a letter Zoning Board September 4, 1996 Page 3 in support of his application from a neighbor directly behind him at 34 Edgewood Avenue, Laura Corrao and her husband who encouraged the applicant to proceed. Mr. Brissette also referred to another letter in support of what the he is trying to do from the neighbors at 38 Hillcrest Avenue, Ron Reisner, who was also present. Mr. Gunther asked if the secretary had copies of the letters, which unfortunately were not in the file. The secretary circulated pictures which were discussed by the Board. Mr. Brissette said the main issues are twofold, primarily driven by safety concerns because of the steep drop-off to the concrete slab behind the applicant's house. The applicant has a very small backyard to begin with and the way it is sloped and angled the applicant gets very little use out of it. The proposal before the Board is to install a patio that would give the applicant a useable, safe, recreational area for the applicant and the neighborhood children. Mr. Brissette said the combination of the pictures and the drawings illustrate the aesthetic value, minimizing the impact on the neighborhood,which can be verified by speaking to Laura Corrao, the homeowner behind the applicant's house, who is completely supportive of the proposal. Ms. Recio asked where the Corrao's reside. Mr. Brissette said the Corrao's live at 34 Edgewood Avenue, directly behind the applicant. Ms. Recio asked where Mr. Reisner resides. Mr. Brissette said he resides at 38 Hillcrest Avenue, next door to the applicant. Mr. Wexler said the section drawn indicates there is no greenery being planted. Mr. Brissette said he has not made a decision as to what exactly will be put in that area, whether it be bushes, trees or shrubs, but it will be, at least, a grass area. Mr. Wexler said from his point of view on the Board, he would like to know what is being planted in that area. Looking at the photographs presented, there is a green band across the top which softens the wall. There is ivy in one photograph presented, but in October and November the ivy drops its leaves leaving a bare wall. Above that, the applicant proposes to put 3 feet of railroad ties and a 4 foot wood lattice fence. The green band of softness will be gone. Mr. Brissette again reiterated that he does not know what trees will be planted. Some trees will be put in to soften the view. The current trees are diseased Hemlocks. The fence is covered with ivy which grows quickly and rapidly. Mr. Wexler said ivy that grows vertically on a structure drops its leaves but on the ground it will hold its leaves. In the wintertime, November, there will be no greenery in that area, and what will be exposed will be 14 ft. of hard surface. Mr. Brissette asked if Mr. Wexler is concerned with the house at 34 Edgewood Avenue. Mr. Wexler said he is concerned with the future owners of the house at 34 Edgewood and is concerned with what is visible driving down the driveway. Mr. Wexler feels uneasy with the planting of grass which doesn't soften the 14 ft. vertical surface. Ms. Recio asked if walking out to where the patio will be, there will be an elevation of 3 ft. of railroad ties and then 4 ft. of the fence. Mr. Brissette said that was correct, on the back line. Zoning Board September 4, 1996 Page 4 Ms. Recio asked how Mr. Brissette arrived at the conclusion that 7 vertical feet was needed to provide the necessary protection. Mr. Gunther explained, referring to the drawings. Mr. Brissette said the property is not level and he added he will, with the advice of the Board, install whatever would satisfy the requirements for vegetation. Mr. Gunther asked Mr. Brissette to describe what conditions exist on the property standing at his house looking back at the house to his right. Mr. Brissette suggested Mr. Gunther ask his neighbor,Mr.Reisner, the individual who owns that property. Mr. Gunther asked if all the trees that exist in Mr. Reisner's backyard are currently dead. Mr. Reisner said the primary ones, Hemlocks about 30 ft., 40 ft., 60 ft. high, are dead. Mr. Gunther asked how many exist across the back of the property. Mr. Reisner said approximately eight or nine. What remains is very small underbrush, dense vegetation and Maple trees approximately 5 ft., 6 ft. tall. Mr. Gunther asked if there were any other questions from Board members. Ms. Recio said as a point of clarification, the photographs that were presented were taken at a time when the area was looking more dense and fuller in the back and asked if that was correct. Ms. Recio indicated that she does not have a recollection that the area was all that green from her site inspection. Mr. Brissette said that was correct, the pictures were taken at some point earlier this summer. Mr. Wexler said he gathers Mr. Brissette is trying to maximize the rear property horizontally. The problems confronted in doing that is if bushes are installed in the back, they will take up a horizontal dimension which will diminish the applicant's useable area of the backyard. Mr. Brissette said that was correct. Mr. Wexler said if trees were installed and there is enough height, there will be an umbrella over the play area below. It has to be set further into the property than from where the retaining wall is. The option Mr. Brissette has is to move the fence in few feet and plant on the outward side of the fence, which would give Mr. Brissette the maximum amount of horizontal surface that is not interrupted by greenery. The option presented, in Mr. Wexler's opinion, is the most insensitive option, but one that maximizes the applicant's use of the backyard. Mr. Brissette said that as a homeowner he has to maximize the use of the land that he does have, as he does not have very much as it is. Mr. Wexler reminded Mr. Brissette that his property has a horrendous condition on the back property line. Mr. Brissette said for any potential person that decided to buy the house in years to come, it would be an existing condition. Mr. Wexler said it would have an effect on someone living behind Mr. Brissette. The current owner might not object, but some other potential purchaser might object. Mr. Brissette said if the potential purchaser had a problem, they would not purchase the house. Zoning Board September 4, 1996 Page 5 Mr. Wexler said it would be a condition the Board approves that would prevent a potential buyer from purchasing the house. Ms. Redo said it is a condition that runs with the land. It doesn't matter how long you live there or how short or how long the people behind you live there, if you get a variance it goes forever. There is an expression of caution in terms of a condition requiring greenery, which may be the inclination of some of the members of the Board, or perhaps Mr. Brissette would be more comfortable thinking of the greenery and how to position it. Mr. Gunther had another question regarding the construction proposed. The drawing shows there are a series of railroad ties one on top of the other and asked if they would be anchored horizontally and vertically into the area to be filled. Mr. Brissette said he thought they would have to be anchored at some point, but that would be taken care of by the landscaper installing them. Mr. Gerety said the Building Department would inspect same. Mr. Brissette said his neighbor said the railroad ties will be held together by what is know as deadman. Mr. Wexler said the applicant should get a building permit, whereby the Building Department will ask the applicant to get proper drawings to substantiate the retaining walls which should be the Board's concern at this point in time. Mr. Gunther asked if there were any other questions from Board members or questions or comments from the public. John Reisner who resides at 38 Hillcrest Avenue, directly adjacent to the applicant appeared. Mr. Reisner who lives on the right side of the applicant when looking at the house, was not at the last meeting, but wrote a letter in support at that time. Mr. Reisner supports the applicant as aesthetically it makes a big difference. When Mr. Wexler talks about the greenery that is there, from far away it is green but up close it is underbrush and the Hemlocks are dead. The Hemlocks have to come out as they are safety hazards, and when the Hemlocks come out you have straggly Maple trees that drop their leaves anyway. Mr. Reisner had talked with Mr. Brissette about what to do in that area, but nothing had been specifically decided. Basically what Mr. Brissette is asking for was done to Mr. Reisner's house prior to when he moved in in 1991. Mr. Reisner's house had a patio installed, railroad ties above the back wall and there was an existing fence. Since that time the existing fence was replaced with a 4 ft. fence, and Mr. Reisner did not apply for a variance at that time because Mr. Reisner assumed a 4 ft. fence was as-of-right. When the measurement is taken asking for 14 ft.,where only 4 ft. is allowed, it seems the measurement is being taken from the other person's property. If 4 ft. is allowed on Mr. Brissette's property, it would seem that would be the proper measurement from the top of the wall not from the Edgewood Avenue property. As the application is a zoning variance for Mr. Brissette's property, and he can build up 4 ft. as-of-right, Mr. Reisner is not sure where the 14 ft. comes into play. Mr. Wexler said according to the Building Department, the only time Mr. Brissette would be able to build up as-of-right is if Mr. Brissette steps into the property 4 ft. The height of a fence or retaining wall, if it is on the property line, is measured on the other side of the property line. This is dictated by §240-52 of the Zoning Ordinance. This is an exact case that shows having a retaining wall at the property line and demonstrated on the drawing. If the fence is moved in 4 ft., the applicant can have a 5 ft. high fence with no variance. Mr. Reisner said then as-of-right Mr. Brissette cannot build anything as-of-right. Mr. Wexler said that was correct. Zoning Board September 4, 1996 Page 6 Mr. Reisner said the Board is taking 4 ft. away from a 21 ft. backyard, the Hemlocks are safety hazards and Mr. Reisner's children and their friends will probably be the first individuals to fall off the wall. Mr. Reisner said he supports what Mr. Brissette is trying to do and said if the Board would like to look at his property, he may have to come before the Board since it has raised his consciousness about what is necessary in the Town. Mr. Reisner said he moved in, doesn't know if he has a Certificate of Occupancy but does have a Letter of Compliance. Mr. Reisner said he has 3 ft. of railroad ties above the wall. Mr. Wexler asked if Mr. Reisner has the same condition as Mr. Brissette on his property. He then asked where Mr. Reisner's property abuts Mr. Brissette's property in the left-hand far corner if the property is higher than Mr. Brissette's property. Mr. Reisner said the property was higher by 2'h ft. Mr. Wexler asked if Mr. Reisner had a retaining wall. Mr. Reisner said he has no retaining wall, but has railroad ties going back perpendicular to the rear property line for about 10 ft. A discussion followed, and Mr. Wexler demonstrated on the drawings before the Board what was being discussed. Mr. Reisner said aesthetically when talking about the property, his property versus Mr. Brissette's property looking from Edgewood, Mr. Reisner's property is much more aesthetically pleasing then Mr. Brissette's property from the view of any citizen walking down the sidewalk. Mr. Gunther asked if there were any other questions from the Board members or any other comments from the public. On a motion made by Mr. Wexler, seconded by Ms. Recio, 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. Mr. Gunther said before considering a resolution, the Board should discuss what a resolution would consist of for this application and asked for suggestions form the Board members. Mr. Wexler said he would feel much more inclined to look favorably upon this application if it was presented with plans for the grass planting area. Mr. Gunther said the applicant indicated his willingness to add vegetation, if the Board would discuss what would be an acceptable addition of vegetation in front or in back of the fence. Mr. Wexler said there is no place for vegetation in front of, meaning the neighbors side, the fence. Mr. Gunther said from a practical standpoint, how close to the rear 7 ft. 4 in. retaining wall will the railroad ties be. Mr. Brissette said the railroad ties will be anywhere from 18 in. to 2 ft. A discussion ensued. Mr. Gunther asked how much space there is between the retaining wall and where the applicant is proposing to install the fence. Mr. Wexler drew three lines representing dimension lines going vertically off the drawing of the proposed section through the rear of the applicant's property indicating the right most line and the face of the Zoning Board September 4, 1996 Page 7 retaining wall that is furthest from the applicant's house therefore closest to the adjoining property for Mr. Brissette. Mr. Wexler said the next vertical line lines up with the face of the proposed railroad tie retaining wall, again closest to the rear property line. The third vertical line lines up with the fence that again is closest to the rear of the adjacent neighbor's house. Mr. Wexler asked Mr. Brissette if he is saying that between the first and second line would be 18 in. Mr. Brissette said that was correct. Mr. Wexler said that the stone is about 18 in. Mr. Wexler said the question Mr. Gunther is asking is where can the applicant plant on the neighbor's face of the construction. A discussion ensued. Mr. Brissette said under the proposed drawing, he does not have an area where trees or anything else can be planted on his side of the wall because that would be encroaching further into his backyard. Mr. Gunther asked, from a practical standpoint, how much width is needed to plant. Mr. Wexler said he feels the area does not need trees, but a softening of the bulk of the area that is being built above. Ms. Recio asked Mr. Wexler if he had a particular recommendation. Mr. Wexler said something small. Mr. Gunther said since the Board is looking at 13 ft. of height, something should be in the middle at the existing ground level before the topsoil or on top of that on the rear neighbor's side which would greatly reduce the impact of such a large space and still provide the applicant with level reasonable, useable space. Mr. Wexler said if the applicant takes the railroad ties and lines them up with the fence instead of setting back, then the applicant can get some ground in that area; i.e. terracing. Ms. Recio said perhaps the applicant might want to consider the suggestions of the Board and speak with someone who can recommend plantings to maximize the amount of space the applicant can get in his yard and satisfy the obvious concern of the Board. Mr. Wexler suggested the applicant should come back at the next meeting,present what has been suggested and then have a vote. A discussion followed. Mr. Brissette said the retaining wall will stay where it is, but he will move the railroad ties back level with the fence. There will then be 2 ft., and asked if the Board would look favorably if Mr. Brissette installed boxes and planted same. Mr. Wexler said the roots will freeze up in the wintertime, and the plants need to go into the ground. Mr. Wexler said he is trying to get Mr. Brissette to maximize the useable area and soften the impact so nothing has to be planted on the upper level that detracts from the useability of the land. Mr. Gunther said if that were the proposal,a reasonable resolution could be approved and asked the Board. Ms. Recio said the applicant might be better off making his own modifications. Mr. Wexler said it might be good to get the sense of the Board. Mr. Gunther said it is not a straw vote, but a sense of the Board, but that the applicant would feel more comfortable if the Board suggested the installation of greenery to soften impact, at which time the applicant would feel that the Board would be favorably inclined towards approving the application. Zoning Board September 4, 1996 Page 8 The Board concurred with that suggestion. Mr. Gunther asked Mr. Brissette how he would like the Board to proceed. Mr. Brissette said the Board would like the greenery plan for the next meeting. Mr. Gunther informed Mr. Brissette to call his landscaper, as the Board could approve a plan certain which the Building Department will verify. Mr. Brissette said he would like the Board to withhold their vote tonight, so he can return to the next meeting at which time he will present a plan with details from the landscaper's point of view, and his, that will ideally satisfy all the Board's criteria. Ms. Recio asked if Mr. Brissette can get copies of the letters mentioned previously so the record is complete. Mr. Brissette said the Board should have Mr. Reisner's original as he does not have a copy of it, but he will get a copy of the letter from Laura Corrao and her husband. Mr. Reisner asked if he had to come before the Board for his own variance. Mr. Gunther suggested Mr. Reisner talk to the Building Department. Mr. Gunther made a motion at the applicant's request that application #2241 be held over to the next meeting, September 25, 1996, which was seconded by Mr. Simon and unanimously approved. Mr. Gunther informed Mr. Brissette that the Board is looking out for his interest as well as that of the property behind Mr. Brissette. Mr. Wexler asked Mr. Brissette to bring enough sketches when he appears at the next meeting. Mr. Brissette said he would do so. The Secretary read the next application as follows: APPLICATION NO. 2 - CASE 2237 Application of Jayne Gumpel requesting a variance to maintain an enclosed porch and garage converted to a family room with a total side yard of 19.2 ft. where 20.0 ft. is required pursuant to Section 240- 38B(2)(b) (formerly Section 89-34B(2)(b)) and will increase the extent by which the building is nonconforming pursuant to Section 240-69 (formerly Section 89-57) for a residence in an R-7.5 Zone District on the premises located at 10 Villa Road and known on the Tax Assessment Map of the Town of Mamaroneck as Block 111 Lot 203. Jayne Gumpel of 10 Villa Road, Larchmont appeared and stated that when she moved into the property six years ago she did not know about the rules and regulations of the Building Department. Ms. Gumpel converted the garage into a playroom and glassed in a screened in porch. Ms. Gumpel filed for a permit for the porch, and when the Building Department inspected Ms. Gumpel showed the inspector what she had done to the playroom and asked if permission was also needed. Ms. Gumpel subsequently found out she needed a permit and filed. Ms. Gumpel had an architect draw plans, copies of which the Board has. Mr. Wexler asked how Ms. Gumpel arrived at the 19.2 ft. total side yard figure. Ms. Gumpel said she did not know. Zoning Board September 4, 1996 Page 9 Mr. Wexler said it can't be deduced from the survey, because the survey gives the dimension of one side yard but not the other. Mr. Gunther said probably the architect knew from the survey that there was 5.2 ft. from the right side lot line to the former garage, now family room. Ms. Recio asked when Ms. Gumpel stated that she did this, did she perform the work herself or did she hire someone. Ms. Gumpel said her brother, who is a builder, performed the work. Ms. Recio asked if he lived in the area. Ms. Gumpel said he does live in the area, is a licensed contractor and that he hired an electrician for the electrical work. Ms. Recio asked whether the contractor asked for permits and whether there were any inspections. Ms. Gumpel said no she did not know, that is why she is before the Board this evening. Mr. Gunther asked who completed the application for alterations. Ms. Gumpel said the architect completed the application for alterations. A discussion followed regarding the survey and the legality of same. Mr. Gunther asked the assistant building inspector if he had any kind of answer with regard to how the Building Department knew it was 19.2 ft. and/or was a variance needed for the side lot line. Mr. Gerety said he did not know. Mr. Wexler asked Ms. Gumpel who informed her that a variance was needed. Ms. Gumpel said when she was putting glass around the screened in porch, the Building Inspector came to the site. At that time she showed him the enclosed garage and asked what was needed. Ms. Gumpel was informed that she needed to apply for a building permit for these matters, which would be then be disapproved,and Ms. Gumpel would have to get an architect to draw plans and get an electrical inspection, which was done. Mr. Wexler asked why Ms. Gumpel is legalizing these matters. Ms. Gumpel said she wants the property to be legal. Mr. Gunther said Ms. Gumpel hired Larry Gordon, an architect, who filed the plans, at which time the Building Department said the side yard is inadequate. Ms. Gumpel read the Notice of Disapproval, "4/1/96 The alterations as performed have a total side yard of 19.2 ft. where 20.0 ft. is required pursuant to Section 240-38B(2)(b)" from the building inspector. Mr. Wexler said the Board grants a variance for 19.2 ft. and for the Building Department to complete the application the applicant has to get a survey saying that the applicant has 19.2 ft. Mr. Wexler said the applicant may have only 18 ft. and this variance would be void. Mr. Wexler said the applicant should call the surveyor and ask him to complete the survey with the other side lot line. Zoning Board September 4, 1996 Page 10 Mr. Gerety said it is an additional oversight in that the drawing presented, plot plan, on Mr. Gordon's drawing shows that the side dimension is 5.2 ft. where the survey indicates 6.2 ft. Mr. Gunther informed Ms. Gumpel that on the survey that was done in 1993 there are two things. It shows one side yard as 6.2 ft. and does not show the other side. Normally it would show both, so that the Board would know whether or not it is correct. Also, when Mr. Gordon made the plan he wrote 5.2 ft. and the one the Mr. Gunther was referring to said 6.2 ft. Mr. Gunther said that Ms. Gumpel may have another foot and the necessary 20 ft. needed. Ms. Gumpel asked if Larry Gordon is the reason she is present before the Board. Mr. Simon said no, it is because the surveyor does not show both side yards which is the problem which must be clarified. Ms. Gumpel asked whether, once she gets the corrected survey from Mr. Gordon, she will have to go before the Board. Ms. Recio informed Ms. Gumpel that once the survey is revised, she should have Mr. Gordon do a comparison of the survey to the plan,asking him to check the 5.2 ft. issue. At that time, Ms. Gumpel may or may not have to come back before the Board on that issue. Mr. Gunther said the Building Department needs to clarify that matter. Mr. Gerety said there was a deck at one time on the side yard which was removed. At that time, it was apparent that the enclosed porch had not been enclosed at one time and a Building Permit would be required to make it a living space. A violation was issued, which is outstanding. All this was done by Mr. Gerety's predecessors. To legalize the space, Ms. Gumpel would need a variance. Mr. Gerety will have to research the file. Mr. Gunther asked if an area variance would be needed. Mr. Gerety said a side yard variance as noted on the disapproval notice would be needed. Mr. Wexler asked how Mr. Gerety, without having a survey to refer to, would arrive at this conclusion. Mr. Gerety said he did not have the building file in front of him and could not verify what was said, but there might be something in the file that is not part of the package before the Board. Mr. Gunther asked Mr. Gerety to check the file. Ms. Gumpel asked if she was correct in assuming that she was informed by the Building Department that she should apply for a variance for the matter before the Board. Mr. Gerety said Ms. Gumpel was correct. Ms. Gumpel said when she did glass-in the porch she called the Building Department and informed them what was being done and was told she did not need a permit. When Ms. Gumpel was told she needed a building permit, she applied for one immediately. Mr. Wexler asked if the Board could take a slight recess so Mr. Gerety could get and review the file. Mr. Gunther asked Mr. Gerety if there is sufficient space for parking by enclosing the garage. If so off- street parking is not an issue in this matter, as there is sufficient space. Mr. Gerety said there was sufficient space regarding parking, and it is not an issue. Zoning Board September 4, 1996 Page 11 Mr. Gunther then adjourned case#2237 until later in the evening, for the Building Inspector to secure and review the records in regard to this matte. The Secretary read the next application as follows: APPLICATION NO. 3 - CASE 2238 Application of Mr. & Mrs. Zuckerman requesting a variance to construct a rear retaining wall with 3 ft. fence 65 ft. in length. The wall and fence would be 3 ft. to 14 ft. in height where a maximum of 5 ft. is allowed for fences and walls in a rear yard pursuant to Section 240-52A(formerly Section 89-44D) for a residence in an R-20 Zone District on the premises located at 7 Marbourne Drive and known on the Tax Assessment Map of the Town of Mamaroneck as Block 334 Lot 45. Ms. Recio stated for the record that she is recusing herself from this application. Mr. Wexler informed the applicant that there are now only three members of the Board able to vote and the applicant will need all three votes for the variance to be granted. A member of the audience said he assumed the project from another architect and it would be helpful to have the hearing and get whatever feedback he can. Mr. Gunther asked the applicant to identify himself. Richard Hein,architect, of 631 West Boston Post Road, Mamaroneck appeared representing the applicant. Mr. Hein said this matter is somewhat similar to the first application with a retaining wall at the property line. This project was assumed from an architect who had received approval for a variance on January 10, 1996 to construct the wall on the property line. Mr. Wexler asked if Mr. Hein knew what the variance was. Mr. Gunther asked the secretary if she had any pictures regarding this case. The secretary said there were no pictures in the file on this case. Mr. Gunther asked Mr. Hein if he had any pictures. Mr. Hein said he did not have any pictures, but will provide them for the next meeting. He does have a copy of the resolution and gave same to Mr. Gunther to peruse. Mr. Gunther looked at the resolution stating it was dated January 10, 1996. The original application requested a variance to construct a swimming pool and deck with a rear yard of 14 ft. where 20 ft. is required pursuant to Section 14-48A-2; the accessory deck structure is 0 ft. where 15 ft. is required pursuant to Section 14-48A-1 and the 4 ft. chain link fence on the retaining wall would be 8 ft. at the highest where 4 ft. is the maximum height allowed pursuant to Section 89-44D as required for a Residence in an R-20 Zone District. The Board approved the request and stated that(1)the rear of the property abuts the densely wooded area of Saxon Woods Park, which also gives a natural screening; (2)the applicant has presented a letter signed by the surrounding neighbors that indicate they have reviewed these plans and do not have any objection to the construction of the pool and the ancillary structure; (3) the 8 ft. fence is topping across an existing retaining wall; is not above 4 ft. for a person standing in the backyard; would present 8 ft. from the ground level on the back side to the top of the fence for a limited distance and runs from 4 ft. up to as high as 8 ft. at its maximum on top of the wall, whereas the rest of the fence as it would continue on the property would be a 4 ft. permitted fence; (4) the irregular topography of the rear of the property forces the applicant to set the rear addition with the setback; and the others are the normal items put in a variance. Zoning Board September 4, 1996 Page 12 Mr. Wexler said the intent of this variance was to not have the applicant build up the property as it is now. The applicant realized at that time that he needed a fence variance because he was raising the grade of the pool. The Board specifically granted a variance at that height so that if the ground went down the fence went down. The applicant elected to make it a level fence as indicated in the drawing. In doing so, the applicant has to raise the fence. Mr. Hein said when Mr. Wexler refers to fence, is he referring to the retaining wall or the fence. Mr. Wexler said he is referring to the total height, which was limited to 8 ft. realizing the applicant had to build up the property. In doing that, if the property went down a little bit, the 8 ft. would be maximum. The applicant elected to make it level and in doing so went higher than 8 ft. Mr. Hein said the topographic survey that was the basis for the application was an accrued aerial survey. Mr. Hein's office, who met with Mr. Gerety also,jumped over the wall and measured 1 ft. offsets from the top of the wall to the rough dirt below. On the drawing Mr. Hein prepared there is dip in the earth and for a 12 ft. wide section it exceeds the 8 ft. maximum retaining wall height. Mr. Wexler said the resolution states a total height for the retaining wall and fence to be 8 ft., not an 8 ft. retaining wall. Mr. Hein said the retaining wall goes from 0 ft. to 10 ft. Mr. Wexler said the fence/railing was to be 4 ft. sitting on top of a retaining wall, to a maximum height of 8 ft. Mr. Hein said he needs Mr. Gerety's input because he informed Mr. Hein it is not a fence from the standpoint that most swimming pools have a fence preventing ingress. The retaining wall is the fence which has a railing to prevent a child from falling over. Mr. Hein needs guidance regarding same and is very confused. Mr. Hein does not know how a level pool can be built on a site that follows the topography of the land. Mr. Wexler said you can build a level pool and beyond the pool you can terrace the ground to an elevation. Mr. Hein said then he needs to find a reasonable dimension. By definition the setback from the pool to the retaining wall is very tight, 20 ft. is the physical separation. Mr. Hein said it goes from 0 ft. to 10 ft. plus the railing. A discussion ensued. Mr. Gunther asked the secretary to include a copy of the section of the original Minutes from the January 10, 1996 meeting pertaining to the Zuckerman application and a copy of the certification that was read earlier in each Board members' packet and counsel's packet for the next meeting. Mr. Hein said he wanted an understanding of the issue, which he now has, and some input from Mr. Gerety or the Board as to an interpretation of the railing. Mr. Wexler asked if there was a reason the applicant was not present this evening. Mr. Hein said he will definitely have the applicant available at the next meeting, as he was looking for some clarification this evening and would like guidelines or opinions. Mr. Wexler said it is very difficult, because the Board needs to know the circumstances and reason why the applicant is again before the Board stating unfortunately the pool is built. Mr. Hein said the pool is not completed. A discussion ensued. Mr. Hein asked if it would be sensible to discuss the railing separately with Mr. Gerety. Zoning Board September 4, 1996 Page 13 The Board agreed Mr. Hein should discuss the railing matter separately with Mr. Gerety. Mr. Gunther said every applicant should feel free to discuss whatever they want with the Building Department. Mr. Gunther asked if there were any comments from the members of the public with regard to this application. There were none. Mr. Gerety returned to the meeting, and Mr. Gunther informed him that the Board had a discussion about the Zuckerman application stating that the architect asked that the matter be held over until the next meeting. There was some question about some of the circumstances involved,and an interpretation of the height of the wall and the fence/railing on top of the wall. Mr. Gunther informed Mr. Gerety that he asked the Building Department to provide Board members with copies of the original Minutes and original certification of the variance that was originally requested and made mention to the applicant that the owner might want to be present since what was approved is not what was built. If there are extenuating circumstances, they have not been presented to the Board. Mr. Wexler said in other words, why is the applicant in front of the Board again, what led them to come back to the Board as a variance was granted in January, 1996. Mr. Gerety said the height changed. Mr. Wexler asked Mr. Gerety if he knew why the height changed. Mr. Gerety said when he did an inspection, he noticed the height change but does not know why. Mr. Hein said the issue was 4 ft. of railing above the retaining wall which is only 8 ft. which the applicant has for the majority of distance, except where the topography dipped irregularly. Mr. Gerety said the disapproval notice was for 14 ft. 4 in. with the topography change. The determination of the Building Department was to build to the highest point, not the average point. The highest point in the applicant's case would be well over 11 ft. Mr. Hein said he is also suggesting that the retaining wall carries 0 ft. to an average and then to a point where it is 10 ft. at a maximum where the earth dips. On top of that there is a protective railing to prevent children from falling off the top of the wall. Mr. Hein needs to know if that railing is to be considered in the total height calculation as well. If so, what is the definition of that railing and what is the required height of that railing, 18 in., 2 ft., 4 ft., because it doesn't prevent ingress. It is only a railing for safety. If that can be dropped, it helps the total number. Mr. Gerety said the original submission was for a chain link fence. It is now being called a railing. Mr. Wexler said that is a valid point and feels this should be discussed and clarified. It obviously helps, in this case, if the railing is not included in fence definition. He doesn't need a fence, but the purpose of the fence is to prevent children from coming from the outside and getting into the pool from the top. Mr. Gerety said where the retaining wall is less than 4 ft., it is a fence in the swimming pool regulations. Mr. Wexler said if the railing meets the opening requirement, it can act as that protection. Mr. Hein said as direction for himself and his client, if he can interpret that there will be protective fencing and comes back with a rendering of shrubbery for the areas where there is a protective barrier, then the 4 ft. top can be eliminated. Zoning Board September 4, 1996 Page 14 Mr. Wexler then demonstrated by drawing the 8 ft. height line, which is in violation. If the other 4 ft. is a railing and not considered a fence, then there is much less of an impact. Mr. Gunther made a motion that application#2238 be adjourned to the next meeting, September 25, 1996, which was seconded by Mr. Wexler and approved 3-0, with Ms. Recio abstaining. Mr. Gunther stated the record should indicate the Board is returning to: APPLICATION NO. 2 - CASE 2237 -Jayne Gumpel (continued) Mr. Gunther asked Mr. Gerety if he had anything to report. Mr. Gerety said the file shows that originally there was an open porch which was enclosed at some point in time, glassed in and became living space. A Notice of Violation was issued, 70-91, to get a building permit for the enclosed porch. An architect, Howard Cohen, put in a request for a building permit which was approved for a very large deck in the rear which was never built. There is another survey that shows not 6.2 ft. but 6.34 ft. and provided numbers on the survey. Where the 13 ft. with the 6.2 ft. equalling 19.2 ft. came from can only be conjured up. Obviously, someone else conjured it up as well. When a building permit was applied for to legalize or remove the violation, apparently Mr. Gordon entered those numbers. Hence, that is why it was disapproved and is before the Zoning Board. Mr. Gerety recommends that Ms. Gumpel get an accurate survey showing both side lines and provide same for the building permit application in which case Ms. Gumpel may not need a variance. If a variance is needed, a new Notice of Disapproval will have to be written with the appropriate information. Ms. Gumpel asked what she needs to do. Mr. Wexler informed Ms. Gumpel to contact the architect and inform him that Ms. Gumpel was before the Zoning Board this date and that the survey prepared was presented and there is no side yard measurement off the porch. The reason Ms. Gumpel is before the Zoning Board is because someone, be it the architect/Building Department said a variance was needed because Ms. Gumpel did not have the 20 ft. total cumulative side yards. Since there was no measurement, no one knows in reality if the footage is not there. The Board asked Ms. Gumpel to have the architect to finish the survey and certify the measurements. Mr. Gunther said one side yard is noted and there is no side yard noted on the other side. Once Ms. Gumpel receives the updated survey, Mr. Gunther said Ms. Gumpel should see the Building Department to resolve the Notice of Disapproval either eliminating same or referring it back to the Board. Mr. Gunther made a motion that application#2, Case 2237, be adjourned to the next meeting, which was seconded by Ms. Recio and unanimously approved, 4-0. APPLICATION NO. 4 - CASE 2239 Application of Richard F. Hein requesting a variance to construct a second floor addition, front porch, addition to the garage and conversion to a family room and install a new side patio. The second floor addition would have a side yard of 9.16 ft. where 10.0 ft. is required pursuant to Section 240-37B(2)(a) (formerly Section 89-33B(2)(a)); the addition at the garage would have a side yard of 7.2 ft. where 10.0 ft. is required pursuant to Section 240-37B(2)(a) (formerly Section 89-33B(2)(a)); the front porch would have a front yard of 13.0 ft. where 30.0 ft. is required pursuant to Section 240-37B(1) (formerly Section 89-33B(1)); the proposed patio to be installed in the side yard would be 3.0 ft. from a side line where 5.0 ft. is required pursuant to Section 240-50(formerly Section 89-44A);and, further the additions as proposed would increase the extent by which the building is nonconforming pursuant to Section 240-69 (formerly Section 89-57) for a residence in an R-10 Zone District on the premises located at 44 Sheldrake Avenue and known on the Tax Assessment Map of the Town of Mamaroneck as Block 221 Lot 305. Zoning Board September 4, 1996 Page 15 Mr. Gunther said as stated at the beginning of the meeting, APPLICATION NO. 4 - CASE 2239 - Richard F. Hein has been adjourned to the next meeting. The Secretary read the next application as follows: APPLICATION NO. 5 - CASE 2240 Application of Neil Selinger and Rima Grad requesting a variance to construct a 1 ft. extension to an existing deck which would have a 28.04 ft. setback from Campbell Lane where 30.0 ft. is required pursuant to Section 240-38-B(1), the side yard is 8.94 ft. where 10.0 ft. is required pursuant to Section 240-38-B(2)(a); and further, the extension 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 9 Villa Lane and known on the Tax Assessment Map of the Town of Mamaroneck as Block 110 Lot 238. Mr. Wexler said he was involved with the original addition several years ago and does not find any conflict reviewing the case. Neil Selinger of 9 Villa Lane, Larchmont, the owner of the property appeared along with his architect, Diane Blum. The application is for an existing deck behind his house that was built in the late 1970's. The deck is now deteriorating and needs to be repaired. While in that process, the applicant would like to make one modification, to extend the dimensions on the north side 1 ft. over to give access from the deck to the north side of the property for which at the present there is no access. Mr. Selinger said letters were submitted from the two neighbors most directly impacted, 11 Villa Lane which is on the north side of the house from which one cannot see that side of the deck as they are at a higher level, there is a row of large trees between the houses and behind the trees another row of shrubbery and 15 Campbell Lane that looks into the driveway where the deck is located and said they both have no problem with the application. Mr. Gunther asked if there were any questions from Board members. Mr. Wexler asked if the applicant has young children. Mr. Selinger said yes. Mr. Wexler said the previous owners had young children also, and this condition, overhangs a void space. Mr. Wexler asked if the applicant was concerned about the safety of the children. Mr. Selinger said safety was one of the factors. The existing deck when purchased had a bench around the interior perimeter of the deck which was taken down for safety reasons. Ms. Blum, from Motzkin Blum Architects, said part of the new work will include metal railings that will run along the retaining wall for safety as shown on drawing #2, actually along the wall adjacent to the stairway, because at the moment it is open to below and a child could easily fall into that area which has always existed. Mr. Gunther asked Ms. Blum if it is her contention that one of the primary reasons for the 1 ft. extension to the deck is for safety. Ms. Blum said the primary reason for the 1 ft. extension is to connect to the side yard so that there is access to the yard that is currently inaccessible. It would make it safer in a sense that at the point where the access occurs, with a gate it would be touching adjacent land, so there is a safety factor associated in that a child could not fall through any longer. Mr. Gunther asked the applicant how many and what are the ages of the children residing at the house. Zoning Board September 4, 1996 Page 16 Mr. Selinger said there are two children ages six and three years of age. Mr. Selinger said in reference to the rail on the side of the retaining wall, regardless of what happens with the deck, that children in the neighborhood tend to cut through going back and forth between Villa and Campbell and it would be a benefit for that reason. Mr. Gunther asked if there were any other questions from Board members. There being none, Mr. Gunther entered into the record a letter from Leonore and David Panno: "This letter was written with regard to the application of Neil Selinger and Rima Grad for a variance at 9 Villa Lane. As the owners of the adjoining property at 11 Villa Lane we are arguably "the most affected neighbors". Please know that we are in complete support of the proposed changes to their deck. These changes would be much enjoyed by the, are aesthetically and functionally consistent with their house and property, and do not in any way compromise our ability to enjoy these same qualities in our own home." Mr. Gunther then read a letter from Eleanor H. and E. Robert Wassman at 15 Campbell Lane: "As a resident directly opposite to the applicant's rear yard we have no objection to the granting of a variance to permit the extension of the existing deck as defined on the Plans submitted with the application to the Building Department. The variance if granted will not adversely impact the neighborhood or be a detriment to our property and will provide access from the existing rear deck to the side yard of said property. It is our opinion that the variance should be granted. Mr. Gunther asked if there were any other questions from Board members. There being none, after review, on motion of Mr. Wexler, seconded by Ms. Recio, the following resolution was proposed and adopted unanimously, 4-0. RESOLVED, that this is a Type II action having no significant impact on the environment pursuant to 6 NYCRR §617 et seq. Accordingly, no further action under SEQRA is required. On motion of Ms. Recio, seconded by Mr. Simon, the following resolution was ADOPTED: WHEREAS, Neil Selinger and Rima Grad have submitted an application to the Building Inspector, together with plans to construct a 1 ft. extension to an existing deck which would have a 28.04 ft. setback from Campbell Lane where 30.0 ft. is required pursuant to Section 240-38-B(1), the side yard is 8.94 ft. where 10.0 ft. is required pursuant to Section 240-38-B(2)(a); and further, the extension 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 9 Villa Lane and known on the Tax Assessment Map of the Town of Mamaroneck as Block 110 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 240-38-B(1), Section 240-38-B(2)(a), and Section 240-69; and WHEREAS, Neil Selinger and Rima Grad 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 application is for a deminimis change to the current deck and a deminimis variance to the requirements of the Zoning Ordinance. Zoning Board September 4, 1996 Page 17 2. The record contains two letters from those neighbors most directly impacted, both of whom support the application. 3. The existing situation creates a hazardous situation for the applicant's two small children,ages 3 and 6, because there is a 1 ft. gap between the retaining wall/driveway and the end of the deck into which the children could fall. 4. This is not a self-created problem. 5. The deck, as the applicant has proposed, is further away from the side property line than the house presently exists at that side property line. 6. There is no other reasonable alternative to accomplish the applicant's particular objective of remedying the safety issue created by the existing condition. 8. 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. 9. 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. 10. The strict application of the Zoning Ordinance and the Town Code would deprive the applicants of the reasonable use of the land/or building, and the variance granted by this Board will enable such reasonable use. NOW, THEREFORE, BE IT RESOLVED, that the subject application be and the same is granted, subject to the following conditions: 1. The applicant shall obtain a building permit within (6) months of the filing of this Resolution; 2. The building permit shall be void if construction is not started within six (6) months and completed within two (2) years of the date of said permit; 3. This decision shall be filed with the Town Clerk as provided in Section 267-a(2) of the Town Law. Mr. Gunther said the Minutes of the previous meeting will be discussed at the next meeting. NEXT MEETING The next meeting of this Board will be held on September 25, 1996. ADJOURNMENT On a motion duly made and seconded, the meeting was unanimously adjourned at 9:35 p.m. Marg to Roma, Recording Secretary