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HomeMy WebLinkAbout1999_02_24 Zoning Board of Appeals Minutes MINUTES OF THE REGULAR MEETING OF THE ZONING BOARD OF THE TOWN OF MAMARONECK FEBRUARY 24, 1999, IN THE COURT ROOM, TOWN CENTER 740 WEST BOSTON POST ROAD MAMARONECK, NEW YORK Present: Thomas E. Gunther, Chairman J. Rene Simon Arthur Wexler Paul A. Winick Absent: Jillian A. Martin Also Present: Judith M. Gallent, Esq., Counsel Ronald A. Carpaneto, Director of Building Michelle Nieto, Public Stenographer Terranova, Kazazes & Associates, Ltd. 49 Eighth Street New Rochelle, New York 10801 Marguerite Roma, Recording Secretary CALL TO ORDER The meeting was called to order by Chairman Gunther at 8:04 p.m. Mr. Gunther informed those present that administrative matters, minutes and the date of the next meeting, will be handled at the end of the meeting unless there is an application before the Board that requires it be done sooner. He informed the applicants that there are only four Board members present this evening;one Board member is absent. As a result, the Board can hear your application and move forward with it. For an action to occur, three Board members have to vote in favor of the application. When an application is called if you would like the Board to hold the application over until the next meeting without prejudice, the Board will do so. The Secretary read the application as follows: APPLICATION NO. 1 - CASE 2332 (adjourned 10/28/98; 11/24/98;1/12/99) Appeal of Robert and Judith Herbst, 76 North Chatsworth Avenue, Larchmont, of a determination by the Building Inspector, that a central air-conditioning unit which is located on the ground and is connected to a single-family home at 72 North Chatsworth Avenue is not a "structure"within the meaning of the Zoning Ordinance, Section 240-84(A), defined in Section 240-4, for a residence in an R-7.5 Zone District on the premises located at 72 North Chatsworth Avenue and known on the Tax Assessment Map of the Town of Mamaroneck as Block 117 Lot 221. Mr. Gunther stated that this matter was adjourned on October 28, 1998 and November 24, 1998 to the January 12, 1999 meeting. He then asked counsel if the meeting was closed and if the Board will move forward with the draft resolution. Ms. Gallent said that was correct. She indicated that Board members had received earlier in the month a draft resolution to be reviewed and discussed by Board members at this meeting. Mr. Gunther read the draft resolution for those present. Zoning Board February 24, 1999 Page 2 After some discussion, Ms. Gallent noted certain typographical corrections to be made. Mr. Gunther asked if there was any discussion by Board members. There being none, on a motion made by Mr. Gunther, seconded by Mr. Wexler, the following resolution was proposed and ADOPTED unanimously, 4-0. Appeal of Robert and Judith Herbst, 76 North Chatsworth Avenue, Larchmont, of a determination by the Building Inspector, that a central air-conditioning unit which is located on the ground and is connected to a single-family home at 72 North Chatsworth Avenue is not a"structure"within the meaning of the Zoning Ordinance, Section 240-84(A), defined in Section 240-4, for a residence in an R-7.5 Zone District on the premises located at 72 North Chatsworth and known on the Tax Assessment Map of the Town of Mamaroneck as Block 117 Lot 221. Robert and Judith Herbst(the"Applicants")have appealed a determination of the Director of Buildings that certain central air conditioning compressor units located in the side yard of the residence located at 72 North Chatsworth are not a "structure" within the meaning of Town of Mamaroneck Zoning Code § 240-4. After careful consideration of the arguments presented by both the Applicants and the owners of 72 North Chatsworth, this Board has determined that the central air conditioning compressor units involved in this appeal are indeed "structures" within the meaning of the Zoning Code and, accordingly, reverses the Director of Buildings' determination to the contrary. The record reveals that the owners of 72 North Chatsworth installed two central air- conditioning compressor units in the side yard of their home. The units, which include a Trane XE 1200 three phase heat pump, are 40 inches tall and 23 inches wide. Each unit rests on a two-inch high plastic pad, measuring 36 inches by 40 inches, that rests on the ground (together, the "Units"). The Director of Buildings determined that because the Units are not structures within the meaning of Zoning Code§240-4, their erection did not require the issuance of a building permit pursuant to Zoning Code § 240-85A. The term "structure" is defined in the Zoning Code as, "Anything constructed or erected, the use of which requires location on the ground or attachment to something having location on the ground, including but not limited to signs, swimming pools and tennis courts." Zoning Code §240-4. The Board believes that the Units fit within the plain meaning of the words of the Zoning Code's broad definition of the term "structure." First, the Units are "constructed or erected" as those terms are commonly used. The term "construct" is defined in Webster's Ninth Collegiate Dictionary (1990) as follows: "to make or form by combining or arranging parts or elements." (Page 281). The Units are mounted on concrete or plastic pads that rest on the ground. Together, these parts form a construction. Similarly, the Units are "erected" as that term is commonly used. Webster's Ninth Collegiate Dictionary defines the word "erect" as follows": "to put up by the fitting together of materials or parts." (Page 422). The Units are "erected" by the placing of the mechanical component on top of the concrete or plastic pad. Second, the use of the Units requires location on the ground or attachment to something having location on the ground. The Units are connected or attached by a pipe to the house that they cool. The house is, obviously, located on the ground. Accordingly, the Units meet the definition of the term "structure." Courts have construed virtually identical definitions of the term "structure" to include a caboose, asphalt manufacturing equipment, and a skateboarding ramp. In People v. Fells, 505 N.Y.S.2d 751 (Justice Ct. Town of Rhinebeck 1986), the court found that a caboose located on the defendants' property was a "structure"within the meaning of the Town of Rhinebeck's zoning code and, therefore, required a building permit. The Rhinebeck Code's definition Zoning Board February 24, 1999 Page 3 of"structure" is virtually identical to the definition contained in the Town of Mamaroneck Zoning Code. Based upon this definition, the court found that the caboose was a structure and required a permit because it "require[d] location on the ground or attachment to something having location on the ground." In Putnam Materials Corp. v. Zoning Board of Appeals of Patterson, 591 N.Y.S.2d 529(2d Dep't 1992),the court found that equipment installed as part of an asphalt manufacturing plant was a"structure"within the meaning of the Patterson Code. The definition of"structure"in Patterson's zoning code is virtually identical to the Town of Mamaroneck Zoning Code definition, except that the Patterson definition excludes fences and contains a height restriction. The court stated that the Town Board "acted within their area of expertise" in determining that the proposed equipment was a "structure" because it required location on the ground and was anchored on concrete footings. In Collins v. Lonergan, 574 N.Y.S.2d 495(Sup. Ct. Westchester Cty. 1991), rev'd on other grounds, 603 N.Y.S.2d 330 (2d Dep't 1993), the court determined that a skateboarding ramp was a"structure" within the meaning of the Lewisboro Zoning Ordinance. The Lewisboro Ordinance contains a definition of the term "structure" that is virtually identical to the Town of Mamaroneck's, except that the Lewisboro Ordinance contained a height restriction. Although the question before the Court was whether the skateboarding ramp was a "permitted accessory structure," that determination necessarily entailed a determination that the ramp was a structure. Based on these precedents and the plain meaning of§240-4, the Board is persuaded that the Units fit within the broad definition of the term "structure" contained in the Town of Mamaroneck Zoning Code. Accordingly, this appeal is hereby granted and the determination of the Director of Buildings that the Units are not structures is hereby reversed. This decision shall be filed with the Town Clerk as provided in section 267-a(2) of the Town Law. John Hamblet of 72 North Chatsworth Avenue, Larchmont addressed the Board. He said he had two questions. One was the rationale for the change and the other the impact. He would like help to understand the rationale for the change in looking at an air conditioning unit as a structure. Ms. Gallent said Mr. Hamblet deems it as a change, but that question has never been before the Board. The Building Inspector made a determination and the Board has never been asked to give an interpretation on this issue. Mr. Hamblet said it is a changing interpretation. Ms. Gallent said the Board is not here to discuss the decision. The question asked has already been answered and is on the record. Mr. Hamblet said the other thing is the impact of the decision on him. Ms. Gallent informed Mr. Hamblet to speak with the Building Inspector, who can advise him regarding that matter. The rationale is set forth in the Board's decision, of which a copy can be obtained from the Building Department. Mr. Hamblet asked if this decision will be communicated to everybody. Ms. Gallent said this decision is on file and the Building Inspector is bound by it. The Secretary read the next application as follows: APPLICATION NO. 2 - CASE 2342 (adjourned 1/27/99) Application of Joy and Robert Greenberg requesting a variance to construct a two-story addition and deck. The addition as proposed has a side yard of 6.5 ft. where 10.0 ft. is required pursuant to Section 240- Zoning Board February 24, 1999 Page 4 37B(2)(a); a rear yard of 9.6 ft. where 25.0 ft. is required pursuant to Section 240-37B(3); and further, the addition increases the extent by which the building is nonconforming pursuant to Section 240-69 for a residence in an R-10 Zone District on the premises located at 19 West Drive and known on the Tax Assessment Map of the Town of Mamaroneck as Block 107 Lot 40. Mr. Gunther said before proceeding, a referral was made to the Westchester County Department of Planning for review and comment. The comment received stated that the referenced referrals have been reviewed by the county and have been considered non jurisdictional matters. Therefore the Town of Mamaroneck may proceed with review of the project without further comment from the county. Mr. Gunther asked if the applicant is present. Robert and Joy Greenberg of 19 West Drive were present, along with Ken Kurtz of Stephen Tilly Architects, 22 Elm Street, Dobbs Ferry. Mr. Kurtz informed the Board the application is for a two-story addition containing a family room and bedroom, and also to renovate the kitchen which is 318 sq. ft. and the requested deck addition which is 175 sq. ft. The applicant needs a variances for the side and rear yard, as the deck will encroach on the side yard 6' ft. The two-story addition in the rear yard projects into the rear yard which reduces it from the present 16 ft. to 9.6 ft. as proposed. Mr. Kurtz stated that at the last meeting adjustments were requested to be made, due to the bulk of the building. What was proposed was a two-story gable facing the east side of the property, the neighbor's property. The applicant was asked to modify the proposed addition to reduce its height. Mr. Kurtz submitted exhibits, marked into the record as exhibits A and B. In order to reduce the height of the wall facing the neighbors to the east, on the second floor bedroom sloped the roof back changing it from a gable end to a hip back. The wall was cut down on that side to 6' ft., which reduces the height of the building 7 ft. 4 in. Mr. Gunther asked if the intent of the change from the prior plan to this plan is to reduce the visual impact of the roof, which Mr. Kurtz verified. Mr. Gunther asked how that was accomplished. Mr. Kurtz said it was accomplished by reducing the apparent height of the wall that faces the other property owner. Instead of having a wall straight up, the proposed wall is shorter and slopes back. A discussion ensued regarding the roof line changes made. Mr. Kurtz then addressed the other issue of objection, the large window in the proposed addition which will intrude on the neighbor's privacy. After the changes were made bringing the top of the wall down, a smaller window is proposed. The previous window was 6 ft. tall and now will be 3 ft. tall. Mr. Gunther asked if exhibit B is a drawing of what the neighbor will now see, which Mr. Kurtz verified. Mr. Gunther then asked Mr. Kurtz to continue with his explanation of the impact on the inside. Mr. Kurtz said in order to reduce the height of the wall facing the neighbor, he had originally taken the line of the ceiling that was in the den and carried it straight into the bedroom and had an approximately 10 ft. high cathedral ceiling. A hip was cut off of that, it was started at 6'h ft., which lowered the ceiling from 10 ft. to a more normal 8 ft. height. Mr. Gunther asked if the room is still useable. Mr. Kurtz said the room is still useable and furnishable. Mr. Gunther asked if the visual impact has been greatly reduced on the side of the house by the proposed changes. Zoning Board February 24, 1999 Page 5 Mr. Kurtz said yes. Some plantings will be provided along the property line between the applicant's property and the neighbor's property. On the back of exhibit B, nothing has changed since the previous meeting except that four (4) of the 12 ft. tall, 3 ft. diameter Juniper trees have been added. Mr. Gunther asked if it matches the surrounding greenery as well. Mr. Kurtz said yes, it continues the line. Mr. Gunther asked if they are evergreens. Mr. Kurtz said yes. Mr. Wexler asked the projected growth of the Juniper. Mr. Kurtz said he did not know. Stephen Tilly said it is 12 ft. from the top of the ball. Mr. Winick asked how the trees are to be planted, the distance on center. Mr. Kurtz said they are 3 ft. on center. Mr. Kurtz said the last time this was presented to the Board, the neighbors had expressed concerns about delivery and contractor's vehicles blocking access to the site. The contractor was asked to walk the site with the owner and stake out a parking area, subject to approval by the owners. Mr. Gunther asked if that meant that the ingress and egress of the area will not be affected, with which Mr. Kurtz agreed. Mr. Gunther asked if there were any other questions from the Board or the public on this application. There being none, on motion of Mr. Wexler, seconded by Mr. Gunther, the following resolution was proposed and ADOPTED unanimously, 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 Mr. Winick, seconded by Mr. Simon, the following resolution was ADOPTED: WHEREAS , Joy and Robert Greenberg have submitted an application to the Building Inspector, together with plans to construct a two-story addition and deck. The addition as proposed has a side yard of 6.5 ft. where 10.0 ft. is required pursuant to Section 240-37B(2)(a); a rear yard of 9.6 ft. where 25.0 ft. is'required pursuant to Section 240-37B(3); and further, the addition increases the extent by which the building is nonconforming pursuant to Section 240-69 for a residence in an R-10 Zone District on the premises located at 19 West Drive and known on the Tax Assessment Map of the Town of Mamaroneck as Block 107 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 240-37B(2)(a), Section 240-37B(3), Section 240-69; and WHEREAS, Joy and Robert Greenberg submitted an application for a variance to this Board for the reasons set forth in such application; and Zoning Board February 24, 1999 Page 6 © 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 the plans presented and inspection of the property, this is a community that will support the type of addition being considered and the addition is entirely appropriate. Based on the character of the neighborhood the houses are similar and the addition obviously is in accord with both the property on which it is being added and the surrounding properties; while the proposed addition is close to the property line side, fortuitously the neighbor's house is substantially set back from that property line, so that the houses will not be uncomfortably close to one another; further, any impact that it would have on the nearby properties has been mitigated by the presence of the trees that have been added for screening and by the change of the gable wall facing the property; B. The revised plans demonstrate that the applicant could not achieve its goals via a reasonable alternative that does not involve the necessity of an area variance; C. The variance is not substantial; D. There will not be an adverse impact on either the physical or environmental conditions in the neighborhood or the district, as the conditions primarily effecting the adjoining property are thoroughly mitigated; E. It is not a self-created difficulty, as the placement of the house took place long ago and was obviously constrained by the conditions of the lot; the record reveals that without extensively reorganizing the house there is no other place an enlarged kitchen and additional bedroom can be added; 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 as shown on the plans presented and no other. Zoning Board February 24, 1999 Page 7 2. The applicant shall obtain a building permit within six (6) months of the filing of this Resolution. 3. The building permit shall be void if construction is not started within six(6)months and completed within two (2) years of the date of said permit. 4. Construction shall be in substantial compliance with the plans submitted in connection with this application. This decision shall be filed with the Town Clerk as provided in Section 267-a(2) of the Town Law. Mr. Gunther informed the applicant to see the Building Department during regular business hours for a permit, and thanked Mr. Kurtz for being responsive to the Board's concerns. Mr. Gunther asked if the applicant was present for application #3. There being no one present, Mr. Gunther ask if the applicant was present for application#4. There was no response. APPLICATION NO. 3 - CASE 2343 (adjourned 1/27/99) Application of Boris Chauca requesting a use variance to reinstate the use of a two-family dwelling,which is a nonconforming use in an SB Zone District, after the dwelling has been vacant for a period of more than one year. Occupancy of the building in question as a two family-dwelling requires a use variance from the Zoning Board of Appeals, pursuant to Section 240-68D, for a two-family dwelling in an SB Zone District on the premises located at 606 Fifth Avenue and known on the Tax Assessment Map of the Town of Mamaroneck as Block 130 Lot 533. No one appeared on this application. Counsel indicated that she had been informed by the applicant's attorney that it will be withdrawn. APPLICATION NO. 4 - CASE 2344 (adjourned 1/27/99) Application of Peter Camaj requesting a variance to convert an existing pharmacy retail business into a pizza/pasta restaurant. The proposed change of use requires 14 parking spaces, pursuant to Section 240-78, (Off-street parking requirements) for a new use in a B Business Zone District. No spaces have been allotted for this proposed new use on the premises located at 170 Myrtle Boulevard and known on the Tax Assessment Map of the Town of Mamaroneck as Block 133 Lot 657. No one appeared for this application. Mr. Gunther asked if the applicant was present for application #5. John Cotugno, the architect for the project, was present. The Secretary read the next application as follows: APPLICATION NO. 5 - CASE 2345 Application of Mr. & Mrs. Alan Sutin requesting a variance to construct a deck. The deck addition as proposed would have a front yard setback of 23.0 ft. where 30.0 ft. is required pursuant to Section 240- 39B(1); and further, the addition would increase the extent by which the building is nonconforming pursuant to Section 240-69 for a residence in an R-6 Zone District on the premises located at 21 Copley Road and known on the Tax Assessment Map of the Town of Mamaroneck as Block 409 Lot 819. During the reading of application#5, Peter Camaj, the applicant, arrived. Mr. Gunther informed him that the application had been called, but no one was present. He informed Mr. Camaj that applications#3 and #4 will be called again, after application#5 is completed. Zoning Board February 24, 1999 Page 8 John Cotugno, of 15 Claremont Road, Scarsdale, the architect for the Sutins, addressed the Board. He stated that the applicants had been before the Board in June/July requesting a variance for the whole project; demolish the existing garage which was nonconforming,a few inches from the property line. All the work has been completed. A new garage has been constructed, along with an addition and deck which needed a variance. Mr. Cotugno said it is a peculiar lot, as it has three (3) fronts and the applicant has to abide by three (3) front yard setbacks. After the piers were installed for the deck it was realized that due to a row of trees parallel to the deck, which is parallel to the original driveway, there is a 6 ft. space, a no man's land,and for that reason would like to extend the deck 6 ft. Mr. Cotugno said the corner will be champered that faces Kenmare Road, which is the closest part to the road, 23 ft., which is already approved.. After some discussion, Mr. Gunther asked if there were any other questions from the Board. Mr. Wexler said he feels it is a logical extension on the deck which probably should have been done the first time, as it ties the "L" shape of the house together. Mr. Gunther asked if there were any questions from the public, There being none, on a motion of Mr. Gunther, seconded by Mr. Simon, 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 Mr. Wexler, seconded by Mr. Simon, the following resolution was ADOPTED: WHEREAS, Mr. & Mrs. Alan Sutin have submitted an application to the Building Inspector, together with plans to construct a deck. The deck addition as proposed would have a front yard setback of 23.0 ft. where 30.0 ft. is required pursuant to Section 240-39B(1); and further, the addition would increase the extent by which the building is nonconforming pursuant to Section 240-69 for a residence in an R-6 Zone District on the premises located at 21 Copley Road and known on the Tax Assessment Map of the Town of Mamaroneck as Block 409 Lot 819; and WHEREAS, the Building Inspector has declined to issue such permit on the grounds that the plans -�--• - '''-submitted failed to--comply-with the Town of Mamaroneck Zoning Ordinance;;with_particular,reference to:. .:., ., Section 240-39B(1), Section 240-69; and WHEREAS, Mr. &Mrs. Alan Sutin 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. A previously granted variance permitted a 23 ft. front yard setback. This addition does not go any further into that front approved setback; B. The applicant will further achieve its goals in this manner; • Zoning Board February 24, 1999 Page 9 C. The variance is no more substantial than the past variance that was granted and has less impac`on that required front yard; D. The variance will not have an adverse impact on the physical or environmental conditions in the neighborhood or district,in that it is in harmony with the house that presently exists and the homes in the community; E. It is not a self-created difficulty, since this house was built on the site in this condition and is burdened with three(3) front yards; 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 as shown on the plans presented and no other. 2. The applicant shall obtain a building permit within six (6) months of the filing of this Resolution. 3. The building permit shall be void if construction is not started within six(6)months and '- ., -completed within two(2)Years of the date of said permit: `:: -. .".-• : .- 4. Construction shall be in substantial compliance with the plans submitted in connection with this application. This decision shall be filed with the Town Clerk as provided in Section 267-a(2)of the Town Law. Mr. Gunther informed the applicant to see the Building Department during regular business hours for a permit. Mr. Gunther recalled application#3, Boris Chauca. No one was present. Ms. Gallent said that she has reason to believe application#3, Boris Chauca, has been withdrawn, due to conversations with the applicant's attorney. Mr. Gunther then recalled application#4, Peter Camaj, and asked if information that was needed had been received. Ms. Gallent said she has the information needed. . The Secretary read the next application as follows: Zoning Board February 24, 1999 Page 10 APPLICATION NO. 4- CASE 2344(adjourned 1/27/99) Application of Peter Camaj requesting a variance to convert an existing pharmacy retail business into a pizza/pasta restaurant. The proposed change of use requires 14 parking spaces,pursuant to Section 240-78, (Off-street parking requirements) for a new use in a B Business Zone District. No spaces have been allotted for this proposed new use on the premises located at 170 Myrtle Boulevard and known on the Tax Assessment Map of the Town of Mamaroneck as Block 133 Lot 657. Mr. Gunther asked if the applicant was present. No one answered, at which time Mr. Gunther stated that the applicant is not present but there are members of the public who would like to make a comment. James Sutterlin,Vice Chairman of the Board of the cooperative at 17 No. Chatsworth Avenue appeared to address the Board. He said he would like to correct a mistake made at the Planning Board meeting. At that time, the owner indicated he had reached an agreement with the manager of 17 No. Chatsworth Avenue concerning access for removal of garbage. That was an incorrect statement. The request had not been received by the management of 17 North Chatsworth. It has now been received, but requires action of the Co-op Board. The fact is that the decision of the Planning Board was based on false assumption. Ms. Gallent said this Board cannot correct the Planning Board's,decision..,The Planning Board granted the special permit on the condition that the applicant obtain a letter for access. If that is not obtained, the special permit will not be valid. The Building Inspector will see if the conditions have been met and will make a determination. The Zoning Board is looking at a different issue that does not involve a special permit. Mr. Sutterlin said there has been exchange between the manager of the building and the Planning Board. Ms. Gallent asked if Mr. Sutterlin is inferring that access has not been granted and will not be granted? Mr. Sutterlin said he is saying it cannot be presumed that access will be granted. As a member of the Board,Mr. Sutterlin said it would be dubious there would be a favorable reply. On behalf of the numerous residents, they do have considerable doubts of imposing additional burden on the parking that exists in the vicinity of the premises. It is very hard for visitors to find a place to park. The proposed project will make it much more difficult to park. Of the seventy-five apartments at 17 North Chatsworth Avenue, which has.very few parking facilities itself, there is no in-door;;parking,and;only about parking:for fifteen cars. They are concerned about the additional parking burden which will be imposed by having a transient restaurant too. Mr. Gunther asked if it is the building's desire to see no business in that location. Mr. Sutterlin said there was a business there before, a pharmacy. Mr. Gunther asked the Building Inspector if any business can go into that location without a parking variance. Mr. Carpaneto said the previous use was gone for more than one year. Those parking spaces went with the use. Thus, any retail use will require a variance for parking. Mr. Wexler asked if the use of this space as a restaurant requires more parking than use of any other retail establishment that was like the previous retailer? Mr. Carpaneto said yes. They need an additional seven (7) spaces, based on Section 240-78A. Mr. Winick said as a matter of law, the applicant needs one (1) space for each 200 sq. ft. of floor space. Zoning Board February 24, 1999 Page 11 Mr. Gunther said in any event, seven (7) more spaces are needed. He understands the concern of the residents at 17 North Chatsworth, but at the same time, would like to see a business in that location rather than have it vacant. Mr. Sutterlin said there was no parking problem with the pharmacy. He feels there will be transient parking if the pizza/pasta restaurant is granted. A discussion ensued regarding other stores at that location,such as CVS, and the fact that they would also create transient parking. Mr. Gunther said the turnover is higher in a pharmacy than in a restaurant. Mary Carlson of 17 North Chatsworth Avenue addressed the Board, stating she has been a resident at 17 North Chatsworth Avenue for twenty years and was very familiar with the pharmacy. She is not aware that they had any off-street parking. Ms. Gallent said that is right. It did not have a variance, because the law was different then. It was grandfathered. It got credit for having seven(7)spaces, even though it didn't have them,because it didn't ,need them under the law at the time it opened. Ms. Carlson reiterated that the pizza/pasta restaurant would still need fourteen(14) spaces. Ms. Gallent yes that is correct and explained the reasons for this under the code that is presently in effect. Renata Sutterlin addressed the Board and said it seems that the pharmacy needed very little space, and now it is going from zero to fourteen (14). Mr. Wexler said one has to consider the peak hours of the restaurant and whether the parking is available at that time. It depends on the use and requirement of parking spaces. Mr. Sutterlin said that he hopes the parking situation will be reconsidered as this area is replanned. There is a one-hour parking limit on the street on Myrtle Boulevard in front of the restaurant. Across the street is three-hour parking, where office people park. Mr. Wexler asked about parking availability after 5:00 p.m. • Mr. Sutterlin said after 5:00 p.m. one can park longer, but the problem is the same. 1 Mr. Wexler asked who is occupying the spots, if the office people are not there. Mr. Sutterlin said that there is no parking facilities available at 17 North Chatsworth Avenue, except for about fifteen(15) spaces behind the building. Residents park on the street. Mr. Wexler asked what happens on Chatsworth Avenue. Mr. Sutterlin said Chatsworth Avenue has limited parking. At the station there is a three-hour limit. A lengthy discussion ensued regarding parking availability for shopping and/or guests of the residents of 17 North Chatsworth Avenue on the street, the public parking lot and the train station. Mr.Gunther said he doesn't propose to speak for the applicant,but possibly the applicant anticipates people walking to and from the train. Mr. Carpaneto said that the Town is looking into a traffic study that will add parking on the opposite side of the stores, diagonal parking, and to reduce the amount of time in the lot from three hours to two hours, so people cannot park all day. Zoning Board February 24, 1999 Page 12 Mr. Gunther said that the Board has had an opportunity to hear the comments from the public, and will adjourn Application#2344 to be recalled later this evening or to the next Zoning Board meeting, March 17, 1999. Mr. Gunther recalled Application#6. The Secretary read the application as follows: APPLICATION NO. 6 - CASE 2346 Application of G. Christopher Powell requesting a variance to construct a single-story kitchen extension with a wood deck. The addition as proposed has a side yard of 6.2 ft. where 10.0 ft. is required pursuant to Section 240-37B(2)(a); and further, the addition increases the extent by which the building is nonconforming pursuant to Section 240-69 for a residence in an R-10 Zone District on the premises located at 121 Rockland Avenue and known on the Tax Assessment Map of the Town of Mamaroneck as Block 211 Lot 144. Chris Powell, of 231 West 16th Street, New York, the architect for the project, appeared on behalf of the applicants. He said that the applicant currently has a very small kitchen, as shown on the demo plans. The client has asked that the kitchen be expanded and the small deck extended on the back of the house to engage more of the yard and to provide access down to the yard from the back. The current door that is an exit from the house exits toward the front. The proposed extension will provide an exit to the back yard. In order to solve the problem that exists, he proposes to bump out on the side yard end of the house, extend the deck across more, put steps at the high end of the yard into the yard and open up and make a larger kitchen/family room. The house currently does not have a family room. Mr. Wexler asked Mr. Powell to describe the property as it goes down from the back of the house. In order to do so, Mr. Powell submitted and explained pictures of the house, marked exhibits 1 through 4, to the Board; exhibit#1 shows the front of the house; exhibit #2 is looking directly into the front of the house into the side yard; exhibit#3 is looking at the existing deck from the back; exhibit#4 is looking from the other end of the house up towards the deck in the back. Mr. Wexler questioned exhibit#3, asking if six risers makes it down to the grade. Mr. Powell said he might need another riser. Mr. Wexler asked if the ground slopes to the east. Mr. Powell said it slopes to the east, where there is currently a retaining wall. Mr. Wexler said the property is really irregular, with which Mr. Powell agreed. A discussion ensued regarding the rear yard dimensions, that being approximately 11.6 ft. at the edge of the building to 6.6 ft. Mr. Powell said he is going out an additional 5 ft. Mr. Wexler asked about the relationship to the house on the other side of the property. Mr. Powell said the other side is approximately 12.2 sq. ft. Mr. Wexler said he is referring to house next to it. Mr. Powell said the house next to it is also close. Zoning Board February 24, 1999 Page 13 Mr. Wexler asked if the plans were presented to the neighbors. Renata Ferguson, one of the owners of the house, said plans were taken over to the neighbors and they have no problem with it. Mr. Gunther 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, 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 Mr. Winick, seconded by Mr. Wexler, the following resolution was ADOPTED: WHEREAS, G. Christopher Powell has submitted an application to the Building Inspector, together with plans to construct a single-story kitchen extension with a wood deck. The addition as proposed has a side yard of 6.2 ft. where 10.0 ft. is required pursuant to Section 240-37B(2)(a); and further, the addition increass 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 121 Rockland Avenue and known on the Tax Assessment Map of the Town of Mamaroneck as Block 211 Lot 144; and WHEREAS, the Building Inspector has declined to issue such permit on the grounds that the plans submitted failed to comply with the Town of Mamaroneck Zoning Ordinance with particular reference to Section 240-37B(2)(a), Section 240-69; and WHEREAS, G. Christopher Powell 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 the fact that the addition does encroach the side yard, a relatively small increase in the side yard, and expands the deck in the back of the property where there is a great deal of room, that change will not be undesirable when one considers the character of the neighborhood and will not create a detriment to nearby properties; the owner's informed the Board that the neighbors have not made an objection; B. That encroachment into the small part of the side yard is not going to be substantial nor create a detriment, having looked at the property; C. Given the site, the way it drops away from the house, there is not a reasonable alternative that does not involve granting an area variance in that portion of the property, given where the kitchen is currently located; Zoning Board February 24, 1999 Page 14 D. The variance is not substantial, upon review of the plans, nor will it have an adverse impact on the physical or environmental conditions in the neighborhood or district; 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. 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. Mr. Gunther recalled Application#4, Peter Camaj, stating that the application had been called earlier in the evening even though the applicant was not present, as there were a number of neighbors present who wished to make comments about Mr. Camaj's application. A number of neighbors in the adjoining building at 17 North Chatsworth Avenue were present, including the Vice Chairman of the board of the building, who have since left. One person is still present and may makes comments if she wishes to do so. Mr. Camaj apologized for not being present, due to business constraints, when the application was called. Mr. Gunther summarized the comments, stating comments were made in reference to the Planning Board conditions in a special permit granted regarding access for the trash removal for the subject property that has yet to occur. They bad comments regarding the parking and were concerned about the impact of additional parking where there is already a tight parking situation towards the building. Peter Camaj of 30 Ellsworth Street, Rye, New York 10580 addressed the Board. He said as far as trash is concerned, the landlord, at the last meeting, said he would get a letter from the next building to remove all the trash. He informed the trash carters that the trash has to be picked up every day in the morning. Zoning Board February 24, 1999 Page 15 Ms. Gallent said there is a question regarding access to the trash. Mr. Camaj said he will provide access for trash pickup from the next door building,and reiterated he was assured from the landlord of that at the last meeting. Mr. Wexler said he has to get the right from the next door property, not his own property. Mr. Camaj said he has to get permission from the cooperative to give the carting company permission to remove the trash. Mr. Winick asked if that is a condition of the Planning Board's special permit. Ms. Gallent said it is a condition of the special permit granted, and is not an issue for the Zoning Board. Mr. Camaj then addressed the parking variance requested. He gave some background to the Board on his place of business in Rye, and said this request is more or less the same issue. Mr. Camaj informed the Board that he has gone to the proposed store property daily, and after 5:00/5:30 p.m. the area is empty. All the stores are closed, except for Gjoko's who stays open on Friday and Saturday until approximately 9:30/10:00 p.m. He informed the Board that he put his name on the list for available parking after the last meeting, and doesn't think the proposed restaurant will create any more of a parking problem. It may create a little more traffic, but will be good for the neighborhood business. Mr. Camaj said people at lunch time usually walk in this area from the office buildings, apartments and across the bridge, not creating any more traffic. Dinner time doesn't start until approximately 6:00 p.m. for approximately three hours, until 9:00/9:30 p.m. He doesn't feel this will create a problem. In the evening on a Friday night, between 4:30 to 6:15 p.m. there is some congestion. Saturday, Sunday, Monday, Tuesday, Wednesday and Thursday evening, the whole block is empty all the way to the other restaurant and the gym, which has caused him some concern. He reiterated that he has been placed on the waiting list for available parking spaces. Mr. Camaj informed the Board that he has been established in Rye for four (4) years, the whole town is proud of him, has created a good atmosphere and hopes to do the same thing at this location. Mr. Camaj said if he has the opportunity to open a restaurant at this location, he works hard and would like to have approval to open such a restaurant. Mr. Wexler said it is very important to the Board to make parts of the community vibrant, to have people on the street and welcome them. Many parts of the area have a very nice quality structurally and there is no one there. The area Mr. Camaj is interested in is a unique part of the community, a super highway in front of it, it is depressed, down low, negative when analyzed and suddenly it can be made a vibrant area. Mr. Wexler feels the variance requested is not a problem for the community, because it will add to the vibrance. If Mr. Camaj can provide a product that people want to come and enjoy, there is no reason why that block cannot take on a different character and stop what's happening there now. It would be a welcomed activity and he does not think the parking will create a problem. Mr. Wexler said there is a major problem in that area, and this will not effect that major problem. Mr. Simon also doesn't think it will be a problem. Ms. Gallent said under SEQRA the Board has to make a determination of significance. In order to determine whether it will be a negative declaration or positive declaration, the Board has to determine whether the proposed action may have a significant adverse impact on the environment. Mr. Wexler said he feels it will not have a significant impact. Weighing the impact, which is not just parking, it is how the street is being used, how it blends in with the community, how it enhances the community, in fact, it creates a positive change in the neighborhood not in the negative. Zoning Board February 24, 1999 Page 16 Mr. Winick said he has no doubt there will be some additional burden on parking created, but on the record is a statement from the Vice Chairman of the co-op board that guests are able to obtain parking on Jefferson. He has a common amount of contact in that area coming onto the highway and going through New Rochelle, and said there is parking. It is not easy parking, but people do park on Jefferson. While he appreciates the concern of apartment dwellers, he doesn't think anybody has the expectation of being able to park in front of their apartment house whenever they want to. The worst case scenario is, someone wishing to visit 17 North Chatsworth is going to have to park either on North Chatsworth, Myrtle or Jefferson. Mr. Wexler said there is a huge commuter parking lot opposite Chatsworth Avenue. Mr. Winick said the commuter parking lot is not legal parking, and he is not willing to give people credit for parking illegal. It is not legal without a parking permit until 8:00 or 9:00 p.m., and he can't say that is very strictly enforced. He said you can also park on Myrtle across the street, except it is illegal parking. The Board cannot count the illegal parking. There is parking available, the community is fairly dense in its population and the record shows the parking is tight but is available. Based on that record, there is no significant impact. Mr. Gunther said some percentage of the customers who will frequent this establishment will be people who can walk there, because they live in one of the buildings or are coming out of the train station. Mr. Gunther asked if there were any other questions. Mr. Wexler asked about the door going up a ramp as shown on the plan. Mr. Camaj said it is a door into the hallway that goes into the apartment. Mr. Wexler asked the use of the door. Mr. Wexler said it is an access to a space that is not calculated in the square footage. Mr. Camaj said the door goes from his store to the basement and the hallway, for emergency egress purposes for the handicapped. Mr. Camaj said if parking is a problem, he can eliminate some tables. Mr. Gunther said for those in the public who were interested in the question,he explained where the front of the premises is, the egress that runs through the building to go out and said that is the second egress for a wheel chair. A member of the public asked if it was taken into consideration as it should be because there are apartments above the store. It should be something the Board is aware of, because there is living space above those doors and above the restaurant. Mr. Wexler said that does not have any relevance. Ms. Gallent said that issue is not before the Board. The Board is deciding on granting a parking variance. Mr. Gunther asked if that would be a Planning Board issue, with which Ms. Gallent agreed. Mr. Gunther asked if there were any other questions or comments from the public on this application. Claire Kudasika of 17 North Chatsworth said in reference to the quality of life, she invites the Board to come and live in the neighborhood. She walks a lot in the area and when she goes over the bridge, it is not a great quality of life outside of Nicky's. Mr. Wexler said hopefully this action will be approved, the restaurant will go in and present itself as a positive activity. The quality of life will change. There will be life and people in that area and that will encourage other types of businesses. From Mr. Wexler's point of view, in reference to the quality of life, Zoning Board February 24, 1999 Page 17 it is just as important as the parking. If everything works, it will change that and make it more positive. He said Ms. Kudasika is seeing a buildi-ig under construction. Mr. Wexler said his office is behind Nicky's, directly behind Ann Taylor. Nicky's has a problem. The problem with that block is that the stores that are on Chatsworth Avenue have their services with in alley in the back. Those services are brought down to North Avenue. Nicky's has a long wall on the side and is located on a narrow street. There is a fence on the other side that protects it from the drop-off. It is a very congested, horrendous area. The street that this is on, is a totally different area. Mr. Winick wants the public to understand what the Board is doing. The Board is not the aesthetic police. The only issue the Board can decide is whether a variance should be granted based on the need for parking as considered in the Zoning Code. The Board is not to decide whether or not a pizza place is a good idea and whether it is valuable addition or a detriment to the neighborhood. The only question before the Board is the parking. Ms. Kudasika said when a variance is requested, what is it based on. Mr. Winick said when the Town Board passes its zoning code, they decide what type of establishment is appropriate in what type of an area. In this case, the only issue is the parking. Ms. Gallent said the Board has five (5) factors that it must consider which are set forth in the New York State Town Law. Mr. Camaj commented that he established a business at a corner in Rye, and it is the best corner that exists in Rye today. It is a live neighborhood, and a live town until 10:30/11:00 p.m. Mr. Gunther asked if there were any other comments on this application. Mr. Simon mentioned that he has been living in the area for forty-five years. He knows the whole area. When it starts to get dark, there is parking. It will put life in the area. Something is needed in that area. Traffic at night is good. During the day it is busy. Mr. Gunther asked if there were any other questions. There being none, Mr. Gunther read a draft negative declaration. On a motion made by Mr. Gunther, seconded by Mr. Winick, the negative declaration as drafted was unanimously adopted. Ms. Gallent informed the Board that this matter was referred to the Westchester County Department of Planning. Mr. Winick said James Athey, the Environmental Coordinator, by memo dated January 27, 1999, said the referral had been reviewed by the county and has been considered non jurisdictional. The matter was also referred to the CZMC for review and comment. Ms. Gallent said the CZMC has thirty(30) from receipt to comment. Thirty days has not elapsed since the referral. There is no response from the CZMC. Accordingly, the Board cannot vote on a resolution tonight. Mr. Wexler asked if the Board can give the applicant a sense of the Board. Ms. Gallent said absolutely. Mr. Wexler said he would be in favor, providing Mr. Camaj proceeds with obtaining permit parking spots when they become available to fulfill a required obligation. Mr. Gunther said that was discussed at the prior meeting. Zoning Board February 24, 1999 Page 18 Mr. Winick said he would vote for this application the reason being that the law instructs the Board on the balance to grant an application unless there is a reason not to. There is going to be an effect with the additional traffic. Based on the evidence the Board has, he feels the Board is compelled to grant the variance. Unless other information is received, he would be inclined to vote for it. Mr. Gunther said using the same approach, he is in favor. Mr. Simon said he is in favor. On a motion made by Mr. Gunther, seconded by Mr. Winick, it was unanimously RESOLVED, that the Public Hearing of Application#4,Case#2344 be,and hereby is,adjourned to the March 17, 1999 Zoning Board meeting keeping the public hearing open in the event that significant comments are received from the CZMC so they can be discussed. Mr. Camaj thanked the Board. APPROVAL OF MINUTES Mr. Gunther asked if the Board had reviewed the January 12, 1999 Minutes and if there were any additions and/or corrections. There being none, on a motion made by Mr. Gunther, seconded by Mr. Winick, the Minutes of January 12, 1999 were unanimously approved, 4-0. Mr. Gunther asked if the Board had reviewed the January 27, 1999 Minutes and if there were any additions and/or corrections. After some discussion and corrections, on a motion made by Mr. Gunther, seconded by Mr. Wexler, the Amended Minutes of January 27, 1999 were unanimously approved, 4-0. Mr. Simon said in the January 27, 1999 Minutes, case #2329, case #2336 and case #2342 he seconded those motions. OTHER BUSINESS Ms. Gallent commented to the Board on a case she handed out this evening, a case where a variance was denied. The court annulled the Board's decision, as the record didn't support it. She wanted to bring this to the Board's attention that when making a decision it is necessary to have support in the record. Mr. Gunther asked if anything was happening in reference to the letter received regarding the Flint Park Homeowners. Mr. Carpaneto said a variance was granted for the sign. NEXT MEETING The next meeting of this Board will be held on March 17, 1999. ADJOURNMENT On a motion duly made and seconded, the meeting was adjourned at 10:05 p.m. Marguerit Roma, Recording Secretary