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HomeMy WebLinkAbout1999_04_28 Zoning Board of Appeals Minutes ZONING BOARD OF THE TOWN OF MAMARONECK APRIL 28, 1999, IN THE COURT ROOM, TOWN CENTER 740 WEST BOSTON POST ROAD MAMARONECK, NEW YORK Present: Thomas E. Gunther, Chairman Jillian A. Martin J. Rend Simon Arthur Wexler Paul A. Winick Also Present: Judith M. Gallent, Esq., Counsel Ronald A. Carpaneto, Director of Building Melissa Shelton, 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 8:45 p.m. Before the start of this meeting Mr. Gunther polled the Board to set the date for the next meeting. The date was set for May 26, 1999. Mr. Gunther said the review of the Minutes will be held at the end of the meeting. Mr. Gunther then asked the Director of Building about the correspondence received from Cheryl Lewy, the Mayor of the Village of Larchmont, regarding Ray Catena Lexus of Larchmont and asked if an application has been filed. Mr. Carpaneto said an application has not been filed for the Zoning Board, as it must first go to the Board of Architectural Review. The Secretary read the application as follows: APPLICATION NO. 1 - CASE 2348 (adjourned 3/17/99) Application of Helen and Robert Chun requesting a variance to construct a stockade fence at the rear of the property with varying heights from 10.0 ft. to approximately 13.0 ft. The fence as proposed has a height of approximately 13.0 ft. where 5.0 ft. is permitted pursuant to Section 240-52A for a residence in an R-2F Zone District on the premises located at 24 Blossom Terrace and known on the Tax Assessment Map of the Town of Mamaroneck as Block 403 Lot 415. Mr. Gunther informed those present that the application was looked at and comments were heard from a number of neighbors at last month's meeting and the case was adjourned, so that the applicant could reconsider the size and positioning of the fence. Helen Chun, the owner of the property at 24 Blossom Terrace, appeared and reiterated the proposal made at the last meeting, stating it is needed for safety as well as aesthetics. Ms. Chun said she has changed the requested 9 ft. to 13 ft. fence as follows. When the fence reaches approximately 8 ft., approximately Zoning Board April28, 1999 Page 2 46 ft. across the back yard, the fenc.:will be sloped down to 5 ft. The reason being that the neighbor's land at 22 Blossom Terrace drops approximately 5 ft. below Ms. Chun's ground level. The property on the right, 26 Blossom Terrace, grades up approximately 4 ft. above Ms. Chun's ground level. Ms. Chun then referred to a 5-page exhibit. Mr. Gunther asked if Ms. Chun had given a copy of that exhibit to the neighbor. Ms. Chun indicated that she had not done so. The secretary provided the neighbor with a copy. Mr. Gunther advised the neighbor to follow along on the copy provided. He then asked if anyone else in the audience would be affected by this application. A gentlemen in the audience said he lived next door to the Santoro's. Mr. Gunther provided that gentlemen with a copy of the exhibit, so he could follow along. Ms. Chun then proceeded to explain the front view, how the land drops from 24 Blossom Terrace to 22 Blossom Terrace. Ms. Chun also used a model she had prepared. A discussion ensued regarding Ms. Chun's exhibits,with Mr. Gunther stating from Ms. Chun's property line to the point where the fence starts to slope down is about 8 ft., with which Ms. Chun agreed. Ms. Chun said she is continuing the horizontal line of 26 Blossom Terrace. Mr. Gunther asked if it is the same style fence, with which Ms. Chun agreed. . ,. A discussion ensued regarding the tree in the exhibit, the fact that there are two trees, and that the fence will go in front of the smaller tree and behind the second tree. v Ms. Chun said as a result of last month's meeting, she met yesterday and discussed this matter with the owner of 22 Blossom Terrace as the Board requested. Their concern last month was that they did not want the 13 ft. fence against their 5 ft. fence, which Ms. Chun understands and appreciates. Ms. Chun said she also indicated last month that she is planning to do some landscaping. From research she has performed, the quickest thing that can be done is to plant vines on the fence that grow fast to diminish the look of the fence. She also met with Mr. Rigano, of 18 Blossom Terrace, and asked for suggestions, so that an agreement can be reached. She informed him of her proposal,and he did not have any suggestions. Both neighbors suggested just planting trees. Ms. Chun said trees are not sufficient, as she needs a fence for the reasons stated. Ms. Chun said that Helen Chin, of 26 Blossom Terrace, is present to support Ms. Chun's request. Ms. Chun presented a petition,signed by 20 of the neighbors, in support of the proposed request. Helen Chin, of 26 Blossom Terrace, appeared and said she is in support of the requested variance. Mr. Wexler said the drawing indicates that the slope is off the property line and questioned the placement of fence on the neighbor's property. Ms. Chun said she is not putting the fence on the neighbor's property, it is the angle of the photograph. Mr. Gunther read the letter Ms. Chun presented in support of the application into the record, marked exhibit#1. Ms. Chun said as a result of the meeting with the Santoro's, they pointed out where the proposed fence line is, as shown on the 4th page of the exhibit packet. She said the surveyor measured from that house to the proposed fence line. It is a straight line from 26 Blossom Terrace. The Santoro's pointed out that there are poles where the railroad originally put in a fence, not a complete 3 ft. wire fence, but poles in between the proposed fence line, the rear property line and existing wire fence on Ms. Chun's property. Zoning Board • April 28, 1999 Page 3 If there is concern about their property line, whatever adjustment is necessary will be made. According to the tax map provided by the Building Department, the property line is straight across. The pole is angled following the existing wire fence line. That needs to be reviewed,but the house was purchased this way. She said the fence will be installed wherever the rear property line runs. Mr. Wexler said the applicant has to get a survey. Mr. Gunther asked if the fence can be on the property line. Mr. Carpaneto said the fence can be on the property line. Mr. Winick said it appears there is an easement in the back yard. Mr. Wexler said that is a sanitary sewer easement. Ms. Chun said page 2 of the exhibit is a survey where the existing wire fence is and the proposed fence will be, as requested at last month's meeting. A discussion ensued regarding the fence on the rear property line at 22 Blossom Terrace, the sanitary sewer line and the manhole. Mr. Gunther asked if there were any other questions from Board members. Ms. Martin asked if Ms. Chun's primary intention for installing the fence is to protect her children or shield her view of the train. Ms. Chun said it is both, but her priority is to shield her children from the train. In the next five years there is going to be a speed train. Currently the fastest train that passes the property is Amtrak, and it picks up wind when it goes. She needs some sort of a shield. Ms. Martin said then Mr. Chun's primary goal is to prevent access to the tracks, with which Ms. Chun agreed. Ms. Martin asked if it is the minimal height required to shield the site line of the train, in creating the line that goes horizontally. Ms. Chun said that is correct, but it is also for aesthetic reasons. Mr. Gunther asked if the neighbor's property at 22 Blossom Terrace is level from Ms. Chun's property line going away, or does it slope up. Ms. Chun said the property slopes up approximately 21/2 ft. to 3 ft., and it has a straight fence. Mr. Gunther said Mr. Chun's property slopes about 4 ft. from one end to the other,with which Ms. Chun agreed. Mr. Gunther said the impact of having a 13 ft. fence at one end is much more significant on one end of the property than her having a 9 ft. fence on the end of her property. Mr. Gunther asked why not start off with 8 ft. or 7 ft. and then go across. The effect on the other end is tremendous. Mr. Chun said this is her initial proposal and she is flexible. After some discussion,Mr. Gunther said he will not vote for a 13 ft. fence. He can appreciate Mr. Chun's desire to have security between the house and the railroad, but 13 ft. is excessive. Mr. Gunther asked if there were any other comments. Robert Chun said on the left side there is a 9 ft. fence and a hill and individuals can climb over. Zoning Board April 28, 1999 Page 4 Mr. Wexler said that this piece of property is the most severe in grade change. There are two steps. A step about 15 ft. to 20 ft. into their property coming from 26 Blossom Terrace, and then a drastic step down at the other end. It is a transition piece of property on that street. He then made reference to the height of the door in the back as shown on the exhibit. Past the house the land slopes off at the right side. Looking from the house out, Ms. Chun will get the benefit of the higher fence approximately 10 ft. high. After further discussion, Ms. Chun said she understands the concerns of the neighbors, but wants something that will work for her as well. Mr. Gunther asked if there were any other questions from Board members. Mr. Winick said the concerns are legitimate and the problems difficult,because the fence is very large. All of the concerns, except the aesthetic one,he feels could be met with an 8 ft. fence. He feels Ms. Chun needs to think about whether or not a fence is built if there is another way to get screening with some sort of plantings that can break the view out over the fence. The Board is constrained to grant the least variance under the law. Ms. Chun asked for clarification in regard to the 8 ft. fence. Mr. Winick said he means an 8 ft. fence at every corner where the property line provides security. Mr. Winick said he would not be comfortable granting a variance for a 13 ft. fence, on the grounds that it is necessary to meet the concerns about security. Mr. Winick feels there are alternatives to a straight fence line across Ms. Chun's property and gave an example regarding a neighboring property where he resides. Ms. Chun asked if there was a particular reason Mr. Winick chose 8 ft. rather than 9 ft., as that is what exists on the right side of Ms. Chun's property. Mr. Winick said he suggested 8 ft., because that is the standard size. Mr. Gunther opened this matter up to public co&ment and then will come back to the applicant for comments. Mr. Gunther asked if there were any other questions from the public on this application. Tom Santoro of 22 Blossom Terrace appeared and said he has been living there for 45 years. He never has had any problems and does not intend to have any problems now. They certainly object to a 10 ft. to 13 ft.high fence. His property level is at least 5 ft. or more lower than the Chun property,plus the corner of their property and the fence that the railroad put up comes in from the corner of the next door neighbor. There is at least an 8 ft. difference. Mr. Santoro said they have a 5 ft. fence and a hedge behind it. They object to the proposed height and said it will look like a sound barrier similar to what is along the Thruway. They have no objection to a fence as security for children. They have children and thirteen grandchildren and are also concerned about their security. He doesn't understand why the fence has to come straight across, just because they don't want to see the train. He asked why the fence can't be dropped or go along with the ground level. He then referred to the corner of the property where the manhole is, and where the county sewer line goes through. He again reiterated his objection to a fence that high. Mr. Gunther asked if there were any other comments. Angelo Rigano appeared and said he lives next door to the Santoros. He said Ms. Chun has the fence the same height as her neighbor. He said 26 Blossom Terrace lowered his fence in comparison with the one above. He is surprised that the cattle fence that the railroad installed has a turn in front. He referred to the first picture of the proposed fence in the exhibit,and said Ms. Chun shows 9 ft. across than 4 ft. You can see the tracks and debris. Where the debris and the big rock is,which is the basic level of Ms. Chun's ground,there is a 4 ft. drop. Mr. Rigano does not know if Ms. Chun is going to fill that in with dirt and make it level with the rest of her property, but will need quite a few truck loads of dirt if she does. On Zoning Board April 28, 1999 Page 5 the third picture Ms. Chun shows a 9 ft. fence going all the way across and a 4 ft. difference. Mr. Rigano said the debris is much lower than her property. It's going to look like one is going along the Thruway trying to keep the sound out. He said he is quite sure she is more concerned about the sound than children coming in and out. Mr. Gunther pointed out, as a point of information to Mr. Rigano, with regard to the placement of the fence that the railroad installed,he doesn't know for sure who installed the original fence that exists. Just because the fence was installed, doesn't mean it has to go along the property line. What will rule will be the survey after the other fence is installed, as it has to be within the property line. Mr. Rigano said the railroad has markers along, so they can find the edge of the property. A company like that knows what they are doing and knows what direction they are going. Mr. Wexler reiterated that there is an easement that goes through the rear of the property from the Westchester County sewer line. There is a manhole there, a junction on the sewer line. The sewer line is generally in the center of an easement. That easement is inside the property. The cattle fence goes around that. Mr. Wexler said it appears clearly that the fence is on the applicant's property. A discussion ensued between Mr. Wexler and Mr. Rigano regarding this cattle fence. Hillary Burn of 12 Blossom Terrace, appeared. In relation to a variance for a fence in excess of 5 ft. it is certainly, in his opinion, due diligence. In due diligence if a child goes into one's property there is nothing one can do about it. In his opinion a 5 ft. fence is a low fence, the owner is liable, the Town and the railroad are also liable. There is certainly a need for a fence in excess of 5 ft., and he would support a fence in excess of 5 ft. Mr. Gunther asked if there are any other questions from the public on this matter. There being none, he asked if Ms. Chun had anything she would like to add. Ms. Chun said she would really appreciate a perm°at some sort of a reasonable height that will do both, block out the view of the train and for security reasons. She understands for security reasons she could put well under a 13 ft. fence, but this is to serve both purposes, to block out the view and as much sound as possible. She sincerely believes that Metro North should be doing something about this along all the property. All they do is put debris along the back yard, and the onus on the owners to clean up the debris. Mr. Chun said whatever height the Board desires they will abide by,as his wife is due to have their child next month and they would like to get started. Mc. Wexler proposed the following for Ms. Chun's approval. Looking at the applicant's house from the train starting with No. 26 Blossom Terrace on the left-hand side start with a 7 ft. high fence and run it for 43 ft. along the property line at a horizontal dimension to whatever the height may be when it comes to the 43 ft. point on the rear property line. That 43 ft. point is the mark where the applicant's house ends according to the survey. At that point,step the fence down 4 ft.,go horizontally 4 ft.,step the fence down 4 ft. again, which will get the fence to the corner of the applicant's rear property line with an 8 ft. differential in the height of the fence. At that point, the fence should be approximately 6 ft. high. As it comes around the angle to meet the adjoining neighbor's fence, step the fence down at that point to meet the neighbor's fence which will leave an approximate 10 ft. high fence where the house is. Adjusted to the grade at the highest point it is probably 11 ft., stepped down gracefully to the adjoining neighbor. Ms. Chun said she accepts Mr. Wexler's proposal. On motion of Mr. Gunther, seconded by Ms. Martin, the following resolution was proposed and ADOPTED unanimously, 5-0. Zoning Board April 28, 1999 Page 6 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, Helen and Robert Chun have submitted an application to the Building Inspector, together with plans to construct a stockade fence at the rear of the property with varying heights from 10.0 ft. to approximately 13.0 ft. The fence as proposed has a height of approximately 13.0 ft. where 5.0 ft. is permitted pursuant to Section 240-52A for a residence in an R-2F Zone District on the premises located at 24 Blossom Terrace and known on the Tax Assessment Map of the Town of Mamaroneck as Block 403 Lot 415; 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 240-52A; and WHEREAS, Helen and Robert Chun 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 amended variance outweighs any detriment to the health, safety and welfare of the neighborhood or community. [The amended variance application requests the following fence: looking at the applicant's house from the train tracks beginning on the left-hand side closest to No. 26 Blossom Terrace, a 7 ft. high fence running for 43 ft. along the property line(to the point where the applicant's house ends). At that point, the fence steps down 4 ft., runs horizontally 4 ft., steps down 4 ft. again, which brings the fence to the corner of the applicant's rear property line with an 8 ft. differential in the height of the fence and the grade of the neighbor's property at 22 Blossom Terrace. (At that point the fence would be approximately 6 ft. high.) The height of the fence where the applicant's house is, will be approximately 10 ft. Adjusted to the grade at the highest point, it is approximately 11 ft. stepped down gracefully to the adjoining neighbor.] In reaching this conclusion, the Board considered the following factors: A. No undesirable change will be produced in the community, since where the fence starts it is lower than the fence that is on the property at No. 26 Blossom Terrace. It is in context with the height of the fences that have been approved along that line to alleviate the burden of having the train tracks immediately behind the house; B. The applicants cannot achieve their goals via a reasonable alternative that does not require a variance. The train is such a burden on these properties that even if it is screened with growth, it will not block any of the sound from the railroad. A positive statement is needed at the property line for safety vis-a-vis the tracks; C. In this instance the variance is not substantial, given the condition at the property line of the site, the irregularity of the topography of this specific site, and the height of the other fences in the area; Zoning Board April 28, 1999 Page 7 D. The variance will not have an adverse impact on the physical or environmental conditions in the neighborhood or district; E. This is not a self-created hardship. It is a real difficulty that exists for all the homeowners of the block as a result of the topography and the location of the railroad tracks; F. The granting of this variance is in harmony with the general purposes and intent of this Ordinance and will not be injurious to the neighborhood or otherwise detrimental to the public welfare; G. The variance is the minimum necessary to alleviate the difficulty detailed in the application yet also preserves and protects the character of the neighborhood and the health, safety and welfare of the community; H. The strict application of the Zoning Ordinance and the Town Code would deprive the applicants of the reasonable use of the land/or building, and the variance granted by this Board will enable such reasonable use. NOW, THEREFORE, BE IT RESOLVED, that the subject application be and the same is GRANTED,subject to the following conditions: 1. This variance authorizes the construction detailed in this certification 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. The Secretary read the next application as follows: APPLICATION NO. 2 - CASE 2352(adjourned 3/17/99) Application of Eugene Pressman requesting a variance to legalize an existing pillar. The pillar as constructed has a height of 6 ft. 10 in. where 6 ft. is permitted pursuant to Section 240-52B for a pillar in an R-50 Zone District on the premises located at 209 Hommocks Road and known on the Tax Assessment Map of the Town of Mamaroneck as Block 417 Lot 107. Steven Gaines, the attorney representing the applicant appeared. He apologized for not being able to appear at last month's meeting, although his colleague, Mitchell Baker attended, and thanked the Board for hearing and adjourning the case to this meeting. He said it is his understanding that there was some discussion, among other things, about the actual measurement of the pillar as it relates to the slope of the actual ground without the piling up of dirt. He commented that he personally went out and did his best to measure what that measurement was from the actual grade of the property. The 6 ft. 10 in. measurement came from the words of the objectants in this matter when they originally objected to the building permit the second time, which resulted in the building of the pillar. When they objected to that pillar after it was built with the second building permit, they objected on the grounds that the 6 ft. 10 in. Zoning Board April 28, 1999 Page 8 is not the required 6 ft. Mr. Gaines noted that Mr. Pressman is the only objectant and has been the only objectant. Mr. Gaines stated that clearly the character of that neighborhood has not changed because of this hill,and anxiously awaits Mr. Carpaneto's measurement of the posts. He feels compelled to indicate that the character of the neighborhood is totally unchanged because of this 6 ft. 10 in. pillar. There are many, many more pillars in that particular neighborhood that are well above that height. Secondly, and much more important,the Miralias cannot see this post from any portion of their property. Their objection is based upon unfortunate, misguided, ill-advised revenge. Mr. Gaines hopes that for the 10 in. being discussed, it will finally be resolved. On each occasion that Mr. &Mrs. Pressman built this wall, it has been objected to only by the Miralias. It was built pursuant to a former building permit, which was subsequently overturned. Mr. Gaines hopes this appearance will be the last before this honorable Zoning Board, as it is the last pillar. Mr. Gunther said, before proceeding, at the last meeting the Building Department was asked to remeasure the pillar/grading to make a determination and asked if that had been done. Mr. Carpaneto said it was not done. Mr. Gunther asked if that can be done. Mr. Wexler said there was an existing wall adjacent to the pillar. It went a few feet beyond the pillar along the wall when they established the height of that grade, probably using the existing grade to give the height of the pillar and get a good sense of where the grade was. After some discussion, Mr. Gunther asked if there were any comments from the public on this matter. There being none, he said he doesn't know if the Board can move much further until measurements are received from the Building Department and asked if there were any objections from other Board members. There were none. William Maker, Jr., of McMillan, Constabile,attorney for Mr. &Mrs. Miralia,appeared and said if that is the sense of the Board there is not much sense in speaking at the moment, as the matter will be detained until the next meeting. Mr. Wexler said he would like to know where the 6 ft. 10 in. measurement came from. Mr. Maker said it did not come from them. He has certain measurements that he was going to discuss this evening,but there is no point in doing so. After the Director of Building does the measurement there will be a number and the legal ramifications of that number can be argued. .vlr. Winick said given the level of concern of this application, he feels the Director of Building should make the measurement. This matter has gone on for so long another month will not make a difference and he is in favor of having that done. Mr. Gunther said this matter will be first on the agenda at the May 26, 1999 meeting, if there are no other questions from either side. There being none, Mr. Gaines said he has no objection to one more adjournment. Mr. Gunther said in Mr. Gaines' absence, it was requested that the Town take the measurement, rather than use any other method. At that point,a conclusion can be reached in regard to the measurement taken and the Board can then proceed. Mr. Wexler said if the measurement taken is 6 ft. 11 in., does the matter have to be renoticed since the variance was granted for 6 ft. 10 in. Ms. Gallent said it must be renoticed if it is more than what has already been noticed. Zoning Board April 28, 1999 Page 9 Mr. Gaines said he will do his best to forage through the transcripts of the prior proceedings to attempt to show the Board that the 6 ft. 10 in. measurement came directly from Mr. Miralia's mouth. Mr. Wexler and the Board agreed that is not necessary. On a motion made by Mr. Gunther, seconded by Simon, it was unanimously RESOLVED, that the Public Hearing of case#2352 be, and hereby is, adjourned to the May 26, 1999 Zoning Board meeting. The Secretary read the next application as follows: APPLICATION NO. 3 - CASE 2353 Application of Richard Neuman and Deborah Ezbitski requesting a variance to construct a first floor addition and second floor dormer. The first floor addition and second floor dormer as proposed has a side yard of 2.43 ft. where 10.0 ft. is required pursuant to Section 240-37B(2)(a), a total side yard of 20.64 ft. where 25.0 ft. is required pursuant to Section 240-37 B(2)(b); and further, the first floor addition and second floor dormer 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 207 Mulberry Lane and known on the Tax Assessment Map of the Town of Mamaroneck as Block 212 Lot 412. Leonard Weinberg, the architect for the owners, appeared. Mr. Weinberg said before the Board is a request for an expansion of the home on both the first and second floor. The primary reason for the expansion is that the family is increasing, has increased since the drawings were started, and currently is inadequate for their needs. In addition,Ms. Ezbitski's mother-in-law will probably be coming to live with them permanently in the not to distant future. The closeness of the building to the property line, referring to the 2.43 ft. side yard, is being held at a point where there is presently a deck and has been for many years. That is the same corner proposed for theirst floor expansion. The second floor expansion is primarily raising the roof to create some additional habitable space that does not go out as far as the corner of the 2.43 ft. side yard. They will be getting more living space, much needed bedroom space, and adequate bathroom space. The front of the house is not effected. The only thing that will be effected in the front of the house is the dormer on the second floor. Ms. Martin asked if the applicant has discussed the proposed addition with any of the neighbors. Mr. Weinberg said the applicant has discussed the proposed addition with the neighbors, and submitted for the record as exhibit#1 and read a letter from their neighbors, Ken and Harriet Barish, 209 Mulberry Lane. No one else has objected. Mr. Winick asked if there is any screening at present at the closest point where the porch is at the 2.43 ft. property line. Mr. Weinberg said there is very heavy screening. Mr. Winick asked if the applicant intends to maintain some form of screening at that point. Mr. Weinberg said absolutely. Mr. Wexler asked how close is that corner to the adjoining house. Mr. Weinberg said he is not sure. After some discussion, Mr. Wexler asked if there is any requirement regarding structures that close and the proposed construction. Zoning Board . April 28, 1999 Page 10 Mr. Carpaneto said it is about 5 ft. Mr. Gunther asked if there was only one child. Mr. Weinberg said there is an older child, in addition to the 3 month old child. Mr. Gunther asked if there were any other questions from Board members. There being none, he asked if there were any questions from the public on this application. There being none, on motion of Mr. Gunther, seconded by Mr. Wexler, 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 Mr. Winick, seconded by Ms. Martin, the following resolution was ADOPTED: WHEREAS, Richard Neuman and Deborah Ezbitski have submitted an application to the Building Inspector, together with plans to construct a first floor addition and second floor dormer. The first floor addition and second floor dormer as proposed has a side yard of 2.43 ft. where 10.0 ft. is required pursuant to Section 240-37B(2)(a), a total side yard of 20.64 ft. where 25.0 ft. is required pursuant to Section 240-37 B(2)(b); and further, the first floor addition and second floor dormer 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 207 Mulberry Lane and known on the Tax Assessment Map of the Town of Mamaroneck as Block 212 Lot 412; 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 240-37 B(2)(b), Section 240-69; and WHEREAS, Richard Neuman and Debcitah Ezbitski submitted an application for a variance to this Board for the reasons set forth in such application; and WHEREAS, this Board has examined the plans, inspected the site, reviewed the application and has heard all persons interested in this application after publication of a notice thereof and a hearing thereon; and WHEREAS, the Zoning Board of the Town of Mamaroneck makes the following findings as required by New York State Town Law §267-b: 1. The Board finds that the benefit to the applicant from the granting of the variance outweighs any detriment to the health, safety and welfare of the neighborhood or community. In reaching this conclusion, the Board considered the following factors: A. Based on personal observation of the property as well as the plans, because the property will not be extended any further than the existing porch in the area that encroaches on the side yard 2.43 ft. from the property line there will be no change in the character of the neighborhood nor have an impact on the neighboring property. The addition is constructed in a way that it comes closer to the rear property line, deliberately constructed away from that corner of the property, so that the porch to be added will not impact on the neighbor who is close to the property line; B. Given the constraints of the site and the fact that the property next door runs off at an angle, the applicants cannot achieve their goals via a reasonable alternative that does not involve some form of an area variance; Zoning Board April 28, 1999 Page 11 C. Given that the existing porch is in the same footprint of the building that exists, the variance is not substantial, nor will it have an adverse impact on either the physical or environmental conditions in the neighborhood; D. There is no self-created difficulty. The difficulty is caused by the shape of the two lots and the placement of the house; E. 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; F. 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; G. 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. a 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. 4 - CASE 2354 Application of Emanuel P. Caras requesting a variance to legalize a second kitchen. Pursuant to Section 240-21A(1), the R-20 Zone District permits one-family dwelling units only. One family-dwellings may contain only one-dwelling unit,pursuant to Section 240-4,on the premises located at 6 Deerfield Lane and known on the Tax Assessment Map of the Town of Mamaroneck as Block 325 Lot 40. Emanuel Caras, the architect, appeared representing the present owners, Mr. & Mrs. Jose Goude. Mr. Caras said the previous owner, baseball player Rubin Sierra, purchased the house and was transferred out of the area before living in the house very much. The Goudes purchased the house from Mr. Sierra in its present condition. Mr. Caras is in the process of legalizing the entire building. One of the facilities found in the building that needed to be legalized was the second kitchen. The Goudes would like to retain the Zoning Board April 28, 1999 Page 12 kitchen, which is frowned upon in the Town of Mamaroneck and generally not granted as a variance. When the Notice of Disapproval was received, dated 12/29/98,the disapproval was based on Section 240- 21A(1)and Section 240-4. After reviewing the definitions in anticipation of this appearance, he knows what the legislative intent was as it was explained by the Building Department. In reading the definitions, it does not specifically state that a second kitchen is disallowed. The state code does not disallow that,but it is superseded by the local definitions. In reading the definitions as presented under the Notice of Disapproval, Section 240-4, he does not like reading these as he feels he might have misread something. That is why they are present this evening, because they need a variance and an interpretation of a definition. Ms. Gallent said Mr. Caras has not applied for an interpretation. The first question is whether the Board agrees with Building Inspector regarding the sections of the law pertaining to second kitchens and the granting of a variance, a use variance, not an area variance. • Mr. Caras said he is present this evening to seek relief of an interpretation. He said he was told he had to seek that, because of the interpretation of the Building Inspector. A question was asked why this is a use variance. Ms. Gallent said if the Board agrees with the Building Inspector that the second kitchen means there is a second dwelling; i.e. an apartment within the house, that is a two-family home in a one-family zone. Mr. Wexler said there are many reasons why there can be more than one kitchen in a house. After further discussion regarding the determination made by Mr. Carpaneto and what the statute states, Ms. Gallent said that the first question is whether the Board agrees with the Building Inspector. If the Board disagrees, it is a one-family home with two kitchens. If the Board agrees, the procedure must be followed for a use variance. Mr. Caras said that there is a test for that, and he,. as prepared to enter into a dialogue with the Board to explain his interpretation versus Ron's. Mr. Wexler asked Ms. Gallent to explain the difference. After further discussion,Ms. Gallent explained the procedure to be followed regarding this matter,and said there is no prohibition in the code on having two kitchens. Having a second kitchen is often indicative of a second dwelling or apartment within a one-family zone. That is what Mr. Carpaneto determined and therefore, in his view, this dwelling requires a use variance. Ms. Gallent said that is a red flag in all municipalities. But, the Board may find that in this particular case, this is not a two-family dwelling but a single-family home with two kitchens. The Board can find that. She said that Mr. Carpaneto said this second kitchen is illegal because it is indicative of a second dwelling in a one-family zone. Mr. Wexler asked if the Board grants this variance, the owner has the right to have a two-family house. Ms. Gallent said if a use variance is granted, that would be the effect. Mr. Caras said he has no interest in making the residence into a two-family house nor ever asking the Board to do that, because that would be a very difficult variance request. He then made comments regarding the language used in the codes written by the Town and New York State and the interpretation of these laws, the changes made and reinterpreted, annexed, amended and changed to get to a finite definition. They have a broad definition of what they would like to accomplish, and read the definition. He said the question is what is a complete housekeeping facility. A lengthy discussing ensued regarding what is considered in making that determination,who occupies the house and what constitutes a single housekeeping unit. Nowhere in the Town Code is one housekeeping unit defined. Zoning Board April 28, 1999 Page 13 Mr. Caras then read the definition of a dwelling in the State Code, Section 606.3A57. He said there is no doubt one family is inhabiting this house, occupying two levels and explained the layout of the house. According to the definitions in the Town Code, this is one family using the one structure under the law. In this particular case there is such a large latitude for interpretation,it is a case by case interpretation and should be discussed. Ms. Gallent asked if Mr. Caras knows what the applicants intend to do, and if there is anything in the record that states the applicant does not intend to make the dwelling into a two-family dwelling. Mr. Caras said he would be happy to stipulate that they have no intention of renting out the house. Mr. Gunther said he doesn't disagree with anything that Mr. Caras has said thus far in terms of what the issues are. Because of the character of the property, another interesting characteristic is while there may be multiple entrances, multiple kitchens and the existing owner of the property may not intend to use it as such, it may in fact present itself as an opportunity for future owners to use it as a two-family house. As a result, Mr. Gunther proposes to the Board that no action be taken and each Board make it a point before the next meeting to visit the property and make a determination for themselves. Once a determination is made on the property, it doesn't make a difference who lives there. Mr. Wexler said the owner doesn't have the right to have it as a two-family house, regardless of whether it has two kitchens or not. Mr. Caras said that is a very important issue. That is why he is asking for an interpretation and a relief, rather than a use variance. As-of-right,it is a one-family house. At a future time the owners might apply to install other accessory uses, i.e. a swimming, tennis court or whatever it is,because it is a large expanse of land. It doesn't mean they will bring another family in to live on the property. Mr. Caras is simply asking for an interpretation of a definition. Mr. Wexler said Mr. Caras has not explained how:this family uses this house. How many bedrooms are on the first floor. How many bedrooms on the second floor. All that is on the plans is a small portion of the house in the proposed state and approved state. There is nothing else on the plans other than the three rooms. There are four children. How old are they? Do they sleep in separate rooms? Are there nannies? Mr. Caras said those questions are not germane to this application. Mr. Wexler said he wants to know why the owners need that second kitchen. Mr. Caras directed the Board's attention to the letter submitted with the application from Mr. Goude which explains the reasons for the request and read it into the record. Mr. Caras said there is a bedroom that is split between the first and second floor, an adjoining bedroom where the oldest child sleeps, the rest of the basement is being used as a recreational area, there is one bathroom and this kitchen which heretofore has not been used. The applicants have recused themselves from using it, until such time as it is legalized. Mr. Wexler asked the composition of the main floor. Mr. Cams said the main floor has two bedrooms, a kitchen, dining room and living room. All the bedrooms are now being used and there is no facility for them to entertain. The first floor and second floor is interconnected and the one sole entrance that comes in, comes into a lower office where the child is using it on two levels and goes directly up to his bedroom. In order to make this into a two-family house, which is not what is intended, the two floors would have to be separated. They are connected by a staircase, they are not separated and it would be very difficult to separate them unless you did some major construction. Mr. Winick said in looking at the existing as-built first floor plan, the first floor plan is the upstairs. There is one bedroom, a dining room, kitchen and living room. He asked where the master bedroom is located. Zoning Board April 28, 1999 Page 14 Mr. Caras said the master bedroom is on the other side. Mr. Caras only showed the portion of the house that pertains to the legalization request. Mr. Caras said he can supply the full-sized drawing, which are on file, and said he can ask for a short recess to obtain them. The Board did not call a recess to obtain the full-sized drawing, after further discussion Mr. Caras said he has shown only the changes made. Mr. Wexler asked if they eliminated the garage. Mr. Caras said the garage was taken out by Mr. Sierra and turned into a bedroom. Mr. Winick said downstairs there are three or four living rooms. Mr. Caras said there are very large rooms; a sitting room with a fireplace, a family room on the far end separated by a pair of doors and bedrooms. Mr. Winick said there are four bedrooms on the first floor of the structure, which Mr. Caras verified. Mr. Winick said there are four more rooms downstairs, which also was verified by Mr. Caras. Mr. Winick said the connection of the two floors is at one corner of the building where the entrance is and asked if it splits up and down, which Mr. Caras verified. Mr. Winick said there is one staircase that splits up and down from the common entrance. The only other connection between the two floors is the spiral staircase and the stairs. Mr. Winick asked if Mr. Caras is seeking to legalize the spiral staircase at some point, with which Mr. Caras agreed. After further comments from the Board regarding inaccuracies, Mr. Caras said there four bedrooms on the upstairs level, the guest room, two bedroomsnd a master bedroom. A discussion ensued regarding access to the building. Mr. Winick asked if access to the downstairs was closed off at the top or the bottom of the staircase that goes from the first floor to the basement, would it inhibit the movement around the upstairs of the house. Mr. Caras said it would not inhibit the movement of anyone upstairs. There are two staircases and both stairs would have to be nullified to accomplish what Mr. Winick is intimating. It is not easy to segregate the basement level from the first level to accomplish a rental home. Further discussion ensued regarding the possibility of separation into to two separate dwelling units and the fact that it would be an impossible feat to accomplish. Mr. Wexler said the question in front of the Board is whether the applicant has the right to have two kitchens, and if so, it doesn't mean it is going to be a two-family house as that is illegal. A lengthy discussion ensued regarding definitions of kitchens,what constitutes a kitchen and the use of the legalized kitchen. After further comments from Board members, Mr. Caras said he is not asking for a use variance, he does not intend to make the residence a two-family house, the owners do not intend to make it a two-family house ever. There is a very large expanse of land, they have a big family and moved to that location specifically because they loved the community,the house and the location. They are going to use it to their best interests. They are asking for permission to legalize the kitchen. Mr. Caras has asked the owners not to do anything until a determination is made, and they are listening because they would like to follow the letter of the law. Zoning Board April 28, 1999 Page 15 Mr. Caras said in the Town law there is no definition of kitchen or housekeeping units. He said the definition in the State Law is one or more rooms with provisions for living,cooking,sanitary and sleeping. It doesn't say one each for a dwelling unit. One has to go back to the legislative intent. Mr. Caras said the kitchen was built sometime after the house was originally built and before his clients purchased it. It was originally a designed location for a laundry room. It had a counter, as it does now, but the wall was moved out to make it a bit larger. The plumbing and gas were there. They put a stove where the dryer was, using the gas line. Where the sink was they made it a sink with a dishwasher next to it. Mr. Caras said there was a very large one car or small two car garage, and Mr. Sierra took it out because he had filed for a multi-car garage that was never built. It was asked if the garage was made into a bedroom, which Mr. Caras verified. It was asked if there is currently a garage. Mr. Caras said there is no garage. They plan on making an accessory garage sometime soon. Ms. Martin asked if the applicants plan to use the kitchen primarily for entertainment purposes or is it possible that it will be used as a housekeeping facility for the son or sons that will be living in that area. Mr. Caras said as the sons are teenagers, it facilitates them using it for going in and getting things needed. The secondary kitchen is accessory, only to the fact that it is not used all the time. It will facilitate the use of the ground level in the summer. It will also facilitate an entertaining function in the basement level that can be done while the rest of the family sleeps upstairs. It is not intended for business purposes. They do have a business in Mamaroneck, but this is for entertainment purposes and it facilitates that. Mr. Gunther asked if Mr. Caras is saying that this will not be used for promotional purposes. Mr. Caras said it will not be used for promotional purposes. After further discussion by Board members and the fact that there might have been knowledge of the illegalities at the time of sale and provisions made, Mr. Caras said he did not know what the arrangements were made for buying the house. The buyers did know that there were certain elements of this structure that had not been filed with the building inspector and needed to be legalized; i.e. the spiral staircase, the moving of the walls. They were not aware at that time that the kitchen was illegal. Mr. Winick said the client told him that money had been put in escrow in the event that the kitchen needed to be removed. Mr. Caras said if he were asking for a use variance that would be germane, but that is not the case. Mr. Caras said it should be written in the law that two kitchens are prohibited. That is not what has been written and therefore it is subject to interpretation. Mr. Gunther asked how the Board members want to proceed, and all agreed to move on. On motion of Mr. Gunther, seconded by Mr. Wexler, 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 Mr. Gunther,seconded by Mr. Wexler, the following resolution was ADOPTED, 4-1. Mr. Winick opposed: WHEREAS, Emanuel P. Caras has submitted an application to the Building Inspector, together with plans to legalize a second kitchen. Pursuant to Section 240-21A(1), the R-20 Zone District permits Zoning Board April 28, 1999 Page 16 one-family dwelling units only. One-family dwellings may contain only one-dwelling unit, pursuant to Section 240-4, on the premises located at 6 Deerfield Lane and known on the Tax Assessment Map of the Town of Mamaroneck as Block 325 Lot 40; 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 240-21A(1), Section 240-4; and WHEREAS, Emanuel P. Caras 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: 1. No variance is required because the Board finds that the record establishes that, despite the existence of a second kitchen on the premises, the house located at 6 Deerfield Lane is not a 2-family dwelling within the meaning of the Code. In making this interpretation, the Board reviewed the plans and facts as presented in this application, specifically: a. The layout and design of the dwelling is such that it is designed for multi-level living with bedrooms and accessory rooms on both the first and second floor. b. The current owner of the property explicitly purchased the residence as a single family residence, with the intention of using the two kitchens for personal use as represented by their architect and in a letter from the owner that was supplied with the application. V c. The nature of the owner's business, the importing of wine, is such that he plans to entertain in the finished basement in the future, and using the kitchen to help accomplish this is logical and in accordance with that particular lifestyle. 2. By finding that in this instance, the second kitchen is not indicative of a two-family dwelling, legalizing the second kitchen in this single-family dwelling, this Board is in no way authorizing the house to be used as a two-family dwelling, which is not permitted in this single family district. 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 six (6) months of the filing of this Resolution. This decision shall be filed with the Town Clerk as provided in Section 267-a(2) of the Town Law. After further discussion,Mr. Gunther informed the applicant to see the Building Department during regular business hours for a permit. Mr. Winick expressed concern. Zoning Board April 28, 1999 Page 17 Mr. Gunther said he will be happy to discuss Mr. Winick's concerns, because he tends to agree that while the property could in fact be used as a 2-family residence easily just by locking doors. However, that fact isn't sufficient to not allow an individual with a large house to have 2 kitchens. There has been much discussion here today about many different styles of living. Mr. Winick expressed his concerns, saying it cannot be in interpreting the Town Code that the intended use by the current occupant or their intention in use of their property can have any bearing in interpreting Town Code because that is a transitory state. What concerns Mr. Winick about what has been done is that a dwelling unit is in our code a building or portion of a building which provides complete housekeeping facilities for one family. We have essentially a four bedroom dwelling unit upstairs; i.e. a kitchen, bath, public spaces and bedrooms, and you have that downstairs. There are two spaces which are not even necessarily inter-dependent. It is very easy to separate. The architect has acknowledged that he does need to go through one to use the other or vice versa. Block two walls on the staircases and you have a downstairs which has an outside entrance, a kitchen, bathroom, a couple of bedrooms and a couple of public rooms. Mr. Winick's concern is not that these people, who are actually going to use this as a one family dwelling,but how do you distinguish the next application. What they intend to do with the property cannot guide the Board in interpreting the code. The fact of the matter is, this is a stand-alone dwelling unit the way the code reads. He does not see how it can be allowed. These are two large areas that have all of the requirements of a dwelling. He cannot understand the basis for granting it. It seems to be in violation of the code, given the definition in the code. Mr. Winick said that the Town Board should work on the code and change the law, because the way the code has just been interpreted there can be two separate apartments all over. The discussion continued between Mr. Wexler and Mr. Winick. APPROVAL OF MINUTES On a motion made by Mr. Gunther, seconded by Mr. Simon, the Minutes of February 24, 1999 were unanimously approved, 5-0. Q On a motion made by Mr. Gunther, seconded by Mr. Winick, the Minutes of March 17, 1999 were unanimously approved, 5-0. NEXT MEETING The next meeting of this Board will be held on May 26, 1999. ADJOURNMENT On a motion duly made and seconded, the meeting was adjourned at 10:05 p.m. 71/(24 Al 0-14 e Margue a Roma, Recording Secretary