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HomeMy WebLinkAbout1998_09_10 Zoning Board of Appeals Minutes MINUTES OF THE REGULAR MEETING OF THE ZONING BOARD OF THE TOWN OF MAMARONECK SEPTEMBER 10, 1998, IN THE COURT ROOM, TOWN CENTER 740 WEST BOSTON POST ROAD MAMARONECK, NEW YORK Present: Thomas E. Gunther, Chairman Patrick B. Kelleher Jillian A. Martin J. Rene Simon Arthur Wexler Also Present: Robert S. Davis, Esq., Counsel Ronald A. Carpaneto, Director of Building Katie Cullen, Public Stenographer Terranova, Kazazes &Associates, Ltd. 49 Eighth Street New Rochelle, New York 10801 Marguerite Roman Recording Secretary CALL TO ORDER The meeting was called to order by Chairman Gunther at 7:45 p.m. Mr. Gunther informed the Board the Minutes will be reviewed at the end of the meeting. The Secretary read the application as follows: APPLICATION NO. 1 - CASE 2321 Application of Mr. &Mrs. Paul A. Melamed requesting a variance to legalize and renovate existing wood deck. The existing deck has a side yard of 5.4 ft. where 8.0 ft. is required pursuant to Section 240- 39B(2)(a); and further, the deck increases the extent by which the building is nonconforming pursuant to Section 240-69 for a residence in an R-6 Zone District on the premises located at 45 Hillcrest and known on the Tax Assessment Map of the Town of Mamaroneck as Block 122 Lot 105. Paul A. Melamed, of 45 Hillcrest Avenue, Larchmont, appeared. Mr. Melamed said his father was the previous owner of the house, constructed a deck which did not comply with the codes, and received information to legalize it. Mr. Melamed has since acquired the house and would like to legalize the deck. He proposes to cut the deck back, rebuilding it to comply with the code. The rear of the deck would have to go back about 31/2 ft. to be in compliance. To make it conform to code on the side, it would have to come up to the door which will make it less useable and pleasing. Mr. Melamed would like to keep the current dimensions, but rebuild the deck. Because of a preexisting concrete deck, the height of the deck was 6 in. higher. Mr. Davis said the record should reflect that the applicant has been referring to photographs before the Board. Mr. Gunther said he was having difficulty following the description Mr. Melamed is presenting in the plan, as he only has a copy of the site plan and two elevations, but no plan. Mr. Melamed said the Board should have a copy of the survey, which was verified, showing the house previously had a concrete porch that was in that area. Zoning Board September 10, 1998 Page 2 Mr: Carpaneto supplied the Board with a copy of the plan of the deck for members to peruse. Mr. Melamed said the concrete, the little part of the deck which is part of the original house, is down at a certain level. If the deck is built lower, he will have a two-level deck which is dangerous. Mr. Melamed chose the 6 in. height above as needed. Mr. Gunther asked if the new deck will be 6 in. higher than what currently exists. Mr. Melamed said no, it will be 6 in. higher than what it is zoned for. Mr. Gunther asked if it will be all wood except for the existing concrete portions. Mr. Melamed agreed, stating there will be proper railings, a stairway and lattice work. Mr. Wexler said Mr. Melamed is proposing a smaller deck than presently exists, which Mr. Melamed verified, stating it is still over code. Mr. Kelleher said Mr. Melamed is pulling the deck back toward the house but wants to keep the width which is in line with the house, which Mr. Melamed verified. Mr. Gunther asked if there were any other questions from Board members or the public. Laura Laban of 49 Maple Hill Drive appeared and asked to see the pictures of the deck, which were supplied and perused. Mr. Gunther asked if there were any other questions or comments from the public. Mr. Davis said this is a Type II action and no references are required. On motion of Mr. Wexler, seconded by Mr. Kelleher, 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. Wexler, seconded by Mr. Kelleher, the following resolution was ADOPTED: WHEREAS, Mr. & Mrs. Paul A. Melamed have submitted an application to the Building Inspector, together with plans to legalize and.renovate existing wood deck. The existing deck has a side yard of 5.4 ft. where 8.0 ft. is required pursuant to Section 240-39B(2)(a);and further, the deck increases the extent by which the building is nonconforming pursuant to Section 240-69 for a residence in an R-6 Zone District on the premises located at 45 Hillcrest and known on the Tax Assessment Map of the Town of Mamaroneck as Block 122 Lot 105; and WHEREAS, the Building Inspector has declined to issue such permit on the grounds that the plans submitted failed to comply with the Town of Mamaroneck Zoning Ordinance with particular reference to Section 240-39B(2)(a), Section 240-69; and WHEREAS, Mr. &Mrs. Paul A. Melamed submitted an application for a variance to this Board for the reasons set forth in such application; and WHEREAS, this Board has examined the plans, inspected the site, reviewed the application and has heard all persons interested in this application after publication of a notice thereof and a hearing thereon; and Zoning Board September 10, 1998 Page 3 WHEREAS, the Zoning Board of the Town of Mamaroneck makes the following findings as required by New York State Town Law §267-b: • 1. The Board finds that the benefit to the applicant from the granting of the variance outweighs any detriment to the health, safety and welfare of the neighborhood. In reaching this conclusion, the Board considered the following factors: A. No undesirable change will be produced to the environment, since there currently exists a deck larger than the one proposed with the same setback on the side yard that is existing. B. The applicant is trying to reconstruct a deck that is in need of repair. By bringing the deck closer to the house and further away from the rear lot line he is solving his needs. It is the most feasible direction to take. C. The area variance is not substantial, since the house exists at that setback from the side lot line. There is a deck that currently exists, has existed for several years and will be reduced in size. D. The variance will not have any negative impact on the physical or environmental conditions in the neighborhood. E. It is not a self-created difficulty. F. The granting of this variance is in harmony with the general purposes and intent of this Ordinance and will not be injurious to the neighborhood or otherwise detrimental to the public welfare. G. The variance is the minimum necessary to alleviate the difficulty detailed in the application yet also preserves and protects the character of the neighborhood and the health, safety and welfare of the community. H. The strict application of the Zoning Ordinance and the Town Code would deprive the applicants of the reasonable use of the land/or building, and the variance granted by this Board will enable such reasonable use. NOW, THEREFORE, BE TT 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 (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 Building Department during regular business hours for a permit. Zoning Board September 10, 1998 Page 4 Ms. Laban asked if a decision is made for a variance, is it grandfathered. Mr. Gunther said when a variance is granted it is not granted to an individual but to the property. The variance goes with the property. The Secretary read the next application as follows: APPLICATION NO. 2 - CASE 2322 Application of Jeffrey Benjamin requesting a variance to construct a two-story wood frame addition. The proposed addition has a front yard setback of 26.6 ft. where 30.0 ft. is required pursuant to Section 240- 38B(1) for a residence in an R-7.5 Zone District on the premises located at 6 Leafy Lane and known on the Tax Assessment Map of the Town of Mamaroneck as Block 126 Lot 38. Jeffrey Benjamin, of 6 Leafy Lane, Larchmont, appeared. Mr. Wexler asked about the deck on the plans submitted, indicating the deck needs a rear yard setback variance. Mr. Benjamin said the deck is not the issue at this time. A discussion ensued regarding the height and particulars of the deck as shown on the site plan. Mr. Kelleher asked that the Board proceed or have the applicant change the plans and reapply. Mr. Davis said the requirement is that other than the modification to receive the variance, it must comply with the code. Normally the Board approves a set of plans when a variance is granted. If the Board is not approving something shown on the plan it must clarify if a variance is granted. Mr. Kelleher suggested that the Board concentrate on the two-story addition. Mr. Wexler informed Mr. Benjamin that he needs a rear yard variance if the deck, as shown on the plan, is to be built. Mr. Benjamin said he can have the architect modify the plan. Mr. Wexler informed Mr. Benjamin he can withdraw the application, revise the plan and it can be renoticed for next month. Mr. Benjamin said he would like to go forth with the two-story addition, and will reapply for the deck. He is proposing to build a side, two-story addition on an existing structure. The house is not built to code, but the structure itself is. There is a front porch with flagstone, upon which the applicant is proposing to build. It is 261 ft. from the street. The applicant is building off to the side, not any closer to the road. Mr. Kelleher said the applicant is not increasing the footprint. Mr. Benjamin said he is not increasing the footprint. He is not coming any closer to the road than what currently exists. Ms. Martin asked Mr. Benjamin what happened to the deck. Mr. Benjamin said originally there was a covered flagstone patio, and the original owners had shortened the deck by at least several feet. The deck had extended out to the side further. There are still some concrete pieces in the ground. Mr. Wexler questioned the elevation attached to the submission. Zoning Board September 10, 1998 Page 5 Mr. Gunther informed the applicant to use the easel to discuss the elevations that were noted on the plans. Mr. Gunther also asked that the Building Department make sure plans are not photocopied, as submitted with this application, for Board members as it is difficult to read same. Mr. Benjamin proceeded to discuss the various existing elevations on the plans, the front elevation, the flagstone patio, the yellow brick wall, the driveway and the flagstone staircase that leads down. The applicant is proposing to build over the preexisting structure, not extending over the grass area, and proposes to add a front entrance way. Mr. Wexler asked why the applicant is building in front, within the 25 ft. front property line. Mr. Benjamin said it is the side of the house. There is a preexisting foundation. The side patio of the house already has two walls, demonstrating and explaining the proposal on drawing A-3. Mr. Wexler said instead of facing the rectangular addition as proposed, why not rotate the rectangle 90 degrees. Mr. Benjamin said it would not fit the floor plan and will extend further out into the yard creating dead space behind the house. Aesthetics is the problem. A discussion ensued regarding the preexisting structure,the right and left elevations,the dead space created and how the proposal got developed to require a front yard setback variance. Mr.Benjamin said there is no entrance hallway. The front door opens directly into the living room, hence the proposal to add a front entrance hallway. Mr.Wexler said Mr. Benjamin is proposing to build 51 ft. past the entry hallway, the requested variance. If he kept the proposed addition in line with that, he will have the entrance hallway. Mr. Benjamin said the proposed addition got developed because it is on the existing structure. Ms. Martin asked if the railing was the far side of the entry patio and driveway, which was verified. Mr. Wexler asked if the existing walls are going to be used for part of the foundation. Mr. Benjamin said he was not sure, part of it may be used. Mr. Wexler said the plans show a new foundation. Whether the walls are there or not is irrelevant. In granting a variance all alternatives must be reviewed. Mr. Davis said if there are feasible alternatives, it makes it more difficult to grant a variance. A discussion continued with reference to flipping the proposal by 90 degrees, still using the existing structure and using a new foundation rather than the existing foundation. Mr. Kelleher asked if Mr. Benjamin had shown and discussed the proposed addition with neighbors, and if there were any objections to same. Mr. Benjamin said he discussed the proposed addition with neighbors, and no one is present to object. Mr. Davis asked if Mr. Benjamin has shown the plans to the immediate neighbors. Mr. Benjamin said he had not shown the plans to the immediate neighbors, but will do so if required. Mr. Davis said the other objective presented in the orientation is it will be avoiding minimization of dead space behind the addition. Zoning Board September 10, 1998 Page 6 Mr. Wexler stated the dead space was there. The applicant created the dead space. Mr. Wexler asked how the house aligns on that street. Mr. Benjamin said they basically all line up. The Board referred to the existing survey, provided by Mr. Carpaneto, and the location map provided in the packets. A discussion ensued regarding the alignment of the properties and the 26.6 ft. setback requested in the proposal. Mr. Gunther asked if there were any other questions from Board members or the public. Ms. Debbie Walters, of 197 Murray Avenue, appeared. Ms. Walters said she is not an immediate neighbor,has seen the plans, supports the application and said the construction will be done tastefully and will not be offensive. Mr. Gunther asked Ms. Walters where 197 Murray Avenue is located. Ms. Walters said 197 Murray Avenue is not far from the Murray Avenue School. Mr. Davis said this matter was referred to the Westchester County Department of Planning on July 20, 1998 and no response was received. Mr. Gunther asked if there were any other comments from the Board members or the public. Mr. Simon asked if something should be mentioned about the deck, if a variance is granted. Mr. Kelleher said if a variance is granted the Board can condition the resolution only to construct a two- story wood frame addition to the house and not include the deck. It might be noted the plans before the Board show a deck and that it will not be a part of the proposal,notwithstanding the fact that a deck is on the plan. Mr. Davis advised Mr. Kelleher that approval, if granted, be conditioned as mentioned above. Mr. Gunther asked if there is any discussion on the motion to be made before calling for a vote, because he has a comment. Mr. Gunther said he intends to vote against the proposed application, because there are two conditions present that would require a negative vote. There is a reasonable alternative for the applicant to build on a substantial piece of property without requiring a variance. The intrusion into the front lot line that exists on other properties, at least the property immediately adjacent, is in the form of a patio or deck and not in the form of a two-story structure. With that in mind,Mr. Gunther is not looking to extend the nonconforming condition beyond that when there is a sufficient amount of space already existing on the property to build otherwise. Mr. Kelleher said it should be entered into the proposal that the Building Department published notice in the paper as required and circulated a notice,as a courtesy, to the immediate neighbors within the required radius. The Building Department has not received any objections,and no one appeared at the meeting this evening in objection. The only person from the audience that did appear and made comment for this application was in favor. On motion of Mr. Wexler, seconded by Mr. Gunther, the following resolution was proposed and ADOPTED unanimously, 5-0. RESOLVED, that this is a Type II action having no significant impact on the environment pursuant to 6 NYCRR §617 et seq. Accordingly, no further action under SEQRA is required. Zoning Board September 10, 1998 Page 7 On motion of Mr. Kelleher, seconded by Mr. Simon, the following resolution was ADOPTED, 3-2; Mr. Gunther and Mr. Wexler were opposed: WHEREAS, Jeffrey Benjamin has submitted an application to the Building Inspector, together with plans to construct a two-story wood frame addition. The proposed addition has a front yard setback of 26.6 ft. where 30.0 ft. is required pursuant to Section 240-38B(1) for a residence in an R-7.5 Zone District on the premises located at 6 Leafy Lane and known on the Tax Assessment Map of the Town of Mamaroneck as Block 126 Lot 38; 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 240-38B(1); and WHEREAS, Jeffrey Benjamin submitted an application for a variance to this Board for the reasons set forth in such application; and WHEREAS, this Board has examined the plans, inspected the site, reviewed the application and has heard all persons interested in this application after publication of a notice thereof and a hearing thereon; and WHEREAS, the Zoning Board of the Town of Mamaroneck makes the following findings as required by New York State Town Law §267-b: 1. The Board finds that the benefit to the applicant from the granting of the variance outweighs any detriment to the health, safety and welfare of the neighborhood. In reaching this conclusion, the Board considered the following factors: • A. No undesirable change will be produced in the character of the neighborhood or a detriment to nearby properties. It has been evidenced that the front of the proposed structure will not be any closer to the street than other properties that are also on that street. B. While it appears that there may be an alternative that does not require a variance, the proposed solution is preferable because it more completely achieves the applicant's objective. C. The variance is not substantial, in light of similar ones that have been asked for and approved in the Town of Mamaroneck. D. The variance will not have an adverse impact on the physical or environmental conditions in the neighborhood or,district. E. Nothing has been presented this evening that would give cause to believe that it is a self-created difficulty. F. The Building Department circulated the notice as a courtesy to the immediate neighbors and published notice,as required. No objections were received by the Building Department, nor did anyone appear this evening in objection. One person appeared in favor of granting the variance. G. The granting of this variance is in harmony with the general purposes and intent of this Ordinance and will not be injurious to the neighborhood or otherwise detrimental to the public welfare. Zoning Board September 10, 1998 Page 8 H. 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. I. 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 only the construction of a two-story wood frame addition to the house in question as shown on the plans presented and no other, not withstanding the fact that a deck is also shown on the plans before the Board. 2. The applicant shall obtain a building permit within (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 to obtain a building permit. Mr. Wexler requested that any applicant making a submission not submit piecemeal forms such as submitted with this application. The Secretary read the next application as follows: APPLICATION NO. 3 - CASE 2323 Application of Deborah & Bill Walters requesting a variance to construct a new entrance vestibule and stoop. The entrance vestibule as proposed has a front yard setback of 25.0 ft. where 30.0 ft. is required pursuant to Section 240-38B(1),a side yard setback of 6.1 ft.where 10.0 ft. is required pursuant to Section 240-38B(2)(a); and further, the entrance vestibule increases the extent by which the building is nonconforming pursuant to Section 240-69 for a residence in an R-7.5 Zone District on the premises located at 197 Murray Avenue and known on the Tax Assessment Map of the Town of Mamaroneck as Block 113 Lot 318. Deborah Walters, of 197 Murray Avenue, appeared. Ms.Walters said the proposal is for a front entrance vestibule and with a new stoop on the small side, to keep it in conformity with the rest of the house and neighborhood similar to many in the community. Ms. Walters said she has spoken to all the neighbors, who said it will make the front of the house look a lot nicer and enhance it. Ms. Walters said that no one objected and submitted a letter in support of same, marked exhibit 1. Ms. Walters noted that after typing a letter in support and obtaining signatures from the neighbors, Joyce and Peter Moock, of 185 Murray Avenue, frequently travel and she has not been able to get their signatures as of this date. Mr. Gunther asked Ms. Walters to give the letter to the secretary, which Ms. Walters did. Zoning Board September 10, 1998 Page 9 Mr. Wexler said the site plan shows a 6.4 ft. setback from the side lot line. The application is for a 6.1 ft. setback and the drawing shows about a 7 ft. setback. If built at 6.1 ft., it will be closer to the side lot line than the house. Mr. Carpaneto said the architect is going to line up the vestibule. Mr.Wexler said the vestibule addition plan shows 6.1 ft. to the side lot line. The addition being proposed is about 6 in. further from the side lot line. The survey shows the addition as 6.4 ft. The discussion continued between the applicant and the Director of Building. Mr. Wexler said the only benefit is that the applicant is showing something further from the side lot line than being requesting. Mr. Davis said the first question is the distance from the side of the house. The survey shows 6.4 ft. and the drawing shows 6.1 ft. A discussion ensued regarding the requested distance and how the measurement might have been arrived at. Ms. Walters asked how the measurement affects what is being requested. Mr. Wexler explained that to Ms. Walters. Mr. Kelleher stated that the application requests a 6.1 ft. variance. Mr. Davis addressed that issue, along with Mr. Carpaneto. Mr. Kelleher said there is not problem with the architect building what the applicant wants built, but the Board will actually be granting something less than what is being asked for. After further discussion,on a motion made by Mr. Gunther, seconded by Mr. Simon,it was unanimously RESOLVED,that the Public Hearing of case#2323 be,and hereby is,adjourned to the September 23, 1998 Zoning Board meeting. Ms. Walters asked for a copy of the letter,in order to get the signature of Mr. &Mrs. Moock, which the secretary will provide. Mr. Kelleher informed the Board that he will not be able to attend the September 24, 1998 Zoning Board meeting. Mr. Davis informed the Board that the matter was referred to the Westchester County Planning Board on July 20, 1998. A response was received, dated August 24, 1998, stating the matter was of local concern only. Mr. Gunther informed the applicant that case#2323 will be the first application called at the next meeting. The Secretary read the next application as follows: APPLICATION NO. 4 - CASE 2324 Appeal by Lauren Miralia, 210 Hommocks Road, of a determination by the Building Inspector, dated 6/29/98, that the columns, piers, posts, pillars, capitals and gates that are part of the fences and walls at the Pressman residence located in an R-50 Zone District at 209 Hommocks Road and known on the Tax Zoning Board September 10, 1998 Page 10 Assessment Map of the Town of Mamaroneck as Block 417, Lot 107, comply with the height limitations set forth in Section 240-52. William Maker, Jr., attorney for the applicant, along with Lauren Miralia, the applicant, appeared. Mr. Maker said most of the Board, with the exception of one member, is familiar with the situation. This evening's application is in two parts. The pillars and posts that face Hommocks Road and some pillars and posts on the Reserve Strip off of Hommocks Road. Mr. Maker then proceeded to give the Board a brief history. Before Local Law No. 3 of 1996 was enacted, at that time there was a question as to whether posts and pillars that are part of the wall should be limited to the height and size of the wall. The Board determined those heights should apply because the posts are parts of the wall. Mr. Maker said Mr. &Mrs. Pressman filed an Article 78 Proceeding and succeeded in having the Board's decision annulled. In the interim, Mr. Miralia and the Town, through the Board, both,filed an Appeal to the Appellate Division. The Zoning Board discontinued the Appeal, but Mr. Miralia continued. When Mr. Miralia got to the Appellate Division in September of 1997, the Appellate Division upheld what the Board said. In the meantime, the Town Board changed the Ordinance to conform to the Board's interpretation. Now, there is Section 240-52 of Local Law, amended 2-7-1996 by Local Law No. 3-1996, that has two fundamental points to be addressed. One is that walls in front yards cannot be any more than 4 ft. tall and in dealing with parts of the wall, capitals, those too must comply with whatever the height restrictions are. It then states there is an exception for something that may be ornamental or decorative, which entitles the applicant to an additional foot. The Appellate Division rendered a decision in October of 1997, which the Building Department was instructed to undertake to pursue compliance. Mr. Maker submitted pictures to the Board, marked Exhibit #1, and explained each picture marked as follows: #1 - the driveway entrance to 209 Hommocks Road -two posts, two capitals removed to reduce the columns to 4 ft.;#2-capitals back on;#3 backfilled,put Belgium Block,now measures 5 ft. in height, the average height. Mr. Maker said the Building Inspector said it was in compliance with the Court Order• and Local Law, the point of which Mr. Miralia is appealing. Mr. Maker said it seems to be in the Ordinance, Subsection 2,but Local Law No. 3 says that gates, posts,capitals and pillars shall comply with the height requirements except that for ornamental or decorative features on top of posts, pillars, capitals and gates may exceed the height limitation by no,more than twelve inches. Mr. Maker said there is electrical cabling showing in photos #2 and#3, which indicates, at some point in time light, fixtures will be added increasing the height of these posts beyond the 4 ft. limitation. Ms. Martin asked, under the statute, wouldn't a lamp or decorative object on top of a column only be limited to one foot, which Mr. Maker verified. Ms. Martin said then the applicant would not be able to install the 3 ft. lamps. Mr. Maker said that is correct. Mr. Wexler.said Mr. Maker is really objecting to the lamps, a 3 ft. picture above the wall. Mr. Maker said the applicant is worried that something may go on top of these posts. Mr. Wexler said it is not out of character in reference to what is on that street. The piers or end of wall are lower than most of the stone walls on that street. Mr. Wexler stated he is trying to understand what the applicant is objecting to. Is it the fear that something will be placed above that is much higher,which is limited to one foot, and/or a variance if applied for will be granted? Mr.Maker said that is obviously hypothetical,at which time the discussion continued regarding compliance with the court order. Mr. Maker said it seems as though the Pressmans have not complied. Mr. Wexler said if anything goes beyond the 5 ft. height, which is the maximum, that is when a question should arise. Zoning Board September 10, 1998 Page 11 A discussion continued regarding this fact. Mr. Miralia said the Building Inspector said the posts now measure 5 ft. from ground to the top and are incompliance. Mr. Miralia interprets the Ordinance as saying capitals must comply with the 4 ft. height and ornamental features on top of capitals gives the extra 12 in. That is where Mr. Miralia feels there is a misunderstanding,miscommunication or misinterpretation by the applicant of the decision of the Building Department. Mr. Wexler asked Mr. Davis his interpretation. Mr. Davis read an excerpt from the brief which said gates, posts, capitals and pillars will comply with the height requirement of this provision, except ornamental or decorative features on top of posts, pillars, capitals and gates. Mr. Davis said it appears that post, pillars, capitals and gates are part of the structure. Mr. Wexler said capitals, by themselves, are ornamental features. Mr. Davis then addressed the various categories. A discussion continued regarding the question whether the 1 ft. cap is a capital or a decorative feature. Mr. Kelleher said counsel had mentioned a dimension. The Pressmans undertook the reduction of the 13 ft. height of the original pillars down to 4 ft. to comply with the various rulings, which is a substantial undertaking. Mr. Miralia said it was a significant job. Mr. Kelleher said a decorative piece of stone of some sort was added on top. Mr. Kelleher said the Pressmans made a substantial effort to comply with all the rules. Mr. Miralia said the Pressman are represented by counsel this evening, Mr. Gaines. Mr. Miralia commented that the 4 ft. height was arrived at by adding fill and referred to a previous application by the Pressmans in '95 and '96. Mr. Wexler stated that counsel brought up the fact that there is nothing in the code that states light cannot be above that and asked if that was correct. Mr. Davis said that is not the question presented. The question presented is whether the structure as built complies, and if the Board finds a 500 lb. slab of granite to be a decorative feature, rather than a capital, that complies. Mr. Carpaneto said that in this application or any other if a light is put directly behind that post, column or pillar 10 ft. high on a pole behind it, it would be all right. A light can be put on anything. There is no height limitation as to lighting on houses. Mr. Carpaneto said he would agree if the light were built into the wall, that would have to be within the 5 ft. Mr. Kelleher asked what the statute prohibits from going higher than a decorative feature. Mr. Carpaneto said light would be allowed. Mr. Kelleher asked what would be disallowed. Mr. Carpaneto said anything else would be disallowed, other than the light. Mr. Davis asked why the light is not a decoration. Zoning Board September 10, 1998 Page 12 Mr. Wexler said it still has a function beyond being that of the wall itself. This case goes from one extreme to another extreme. When the stone walls are designed and one keeps within the context of the height of the Ordinance, the end of the wall has to signify a statement to an entry and should be visually higher than the wall. Mr. Wexler feels 5 ft. is not high enough. It should be allowed to be 50% higher than the height of the wall. Mr. Maker addressed that issue. Mr. Davis said the only question before the Board, which is a part of Mr. Maker's appeal, is whether the determination is correct. Mr. Miralia said in the 1996 Zoning Board records, the firm of Pirro, who represented Mr. Pressman at that time, defined their version of capitals. Mr. Miralia neMs an interpretation regarding capitals from the Board, as he believes it is not in compliance with Town Board's legislation. Mr. Kelleher asked the chairman to deal with the first part, the front wall. Mr. Gunther said he would much prefer to have the applicant make his own statement. Mr. Davis said it would be useful to have Mr. Carpaneto explain why it is permissible. Mr. Carpaneto said the stone on top is a decorative feature. Ms. Martin asked if the front part of the granite piece is going to be engraved. Mr..Miralia said that is speculative. Mr. Miralia stated that he disagrees with Mr. Carpaneto that decorative lights are a decorative feature, stating anything that goes up from the posts,capitals or pillars to the light might be considered a decorative feature and expanded on that issue. Mr. Davis said it is not necessary for the Board or Mr. Carpaneto to respond to that question,as the Board is only applying the Ordinance to what has been built already. , Mr. Maker said those types of questions are important, when making laws. A lengthy discussion ensued regarding this issue. Mr.Maker continued with his previous presentation,stating the Reserve Strip is a pedestrian easement used by owners of land on Honmocks Road allowing them to get to Larchmont Harbor. Along the Reserve Strip which borders the Pressman property, the Pressmans also built a wall with similar pillars. Photo#6 shows,rather than coming down to 5 ft.with the pillar,the Pressmans proceeded to put a"termite mound" and explained the particulars of same. Mr. Maker then referred to the blond stone to make a point of height reference, along with explaining photos#6, #7 and #8 and the grading of same. Mr. Carpaneto commented on the piers and grading, considering them a pair for gating purposes. Mr.Wexler asked Mr. Carpaneto to explain how the wall makes a transition from the front wall to the side wall. Mr. Carpaneto said the wall steps up. • Mr. Kelleher said in all of the right-of-way on Hommocks Road to the water, there are two pillars in question,with which Mr. Carpaneto agreed. Zoning Board September 10, 1998 Page 13 Mr. Carpaneto said the wall is not in question,as it meets the 5 ft. height requirement. The front column is 1 ft. higher. A discussion ensued regarding the assumption that there is a decorative feature on the left. The question on the right is whether the lone pier, to align itself with the left pier, would be higher than 6 ft. because the grade slopes off, with respect to which Mr. Carpaneto originally said yes. Mr. Miralia said when that particular pillar was measured with the new grade, it was 7 ft. 10 in. The other pillar measured 6 ft. 10 in. Mr. Wexler asked if they filled in on their property or the easement. Mr. Miralia said it is being filled on their property to the easement line. Mr. Davis suggested the Board keep in mind the question is not what the height measurement is, but whether the method of measurement --piling of material around the base and the measurement from the top of the pile to determine the height—complies. Mr. Davis asked Mr. Carpaneto whether the mounding was necessary to make the height legal or whether it would have been legal in any event, because it matched the height of the other pillar. Mr. Carpaneto said prior to the filling, the pier was too high. A discussion ensued regarding the use of continuous fencing and grading. Mr. Davis said the only question presented on this branch of the appeal is the use of this technique. Mr. Maker said that all of this is self-created by the Pressmans. He then made reference to a meeting held on September 13, 1995, a resolution made by Mr. Gunther and a straw vote taken at that time. He stated that the board attorney,John Kirkpatrick, presented and compared the draft resolution,which was enacted October,25, 1995. In that six weeks, the Pressmans built everything. The Pressmans have treated this Board with mockery. Mr. Davis said it is not clear how the history bears on this matter. ' Mr. Maker said he wanted to point out the facts. Mr. Davis and Board members agreed that the history has no bearing. Mr. Maker said he wants the matter to be understood by everybody. The Board allows people to act in bad faith, as the Pressmans did. 'He said the Board should figure out ways to preserve what is done. Mr. Davis said the Board does not determine good faith or bad faith. The question before the Board is whether the methodology accepted by the Director of Building is correct. Mr. Miralia asked if it made a difference that the strip encroaches presently into the reserve strip. That is the only way to achieve a height line, to come across the property line. Mr. Wexler said it would make a difference and it would have to be shown on the survey. Mr. Wexler said the Board is determining a method of how the height of a wall is determined. It has nothing to do with how the Pressmans treat the Board. The direction that comes from the Board, has to be-the direction of the Building Inspector on how to treat those conditions. It is out of line with the request. Mr. Gunther said that is Mr. Wexler's opinion. Every applicant is permitted to say what they want with regard to the application and anything that relates to the history of the application. Zoning Board September 10, 1998 Page 14 Mr. Miralia said, as the applicant, he would like the Board to reverse the decision of the Building Inspector, and would like a violation issued to the Pressmans. Mr. Gunther asked if there were any other questions of this applicant from the Board. There being none, Mr. Gunther asked if there were any questions or comments from the public. Stephen Gaines, of 1 North Lexington Avenue, White Plains, NY 10601, appeared, representing the Pressmans. Mr. Gaines said he appreciates the fact that the applicant and his attorney has been allowed to express their concerns. The background should note that the initial construction was originally approved by the Building Department. Only after the Board reversed the original ruling of the Building Department, was work stopped. The new construction which took place, taking down the posts and wall to the height that now exists,was all done and approved by the Building Department. It is reprehensible on the part of the applicant and attorneys to have injected their personal feelings about Mr. Pressmans "good faith and bad faith". The Board's initial question of the applicant would tell what they really want. Mr. Gaines thinks the motivation is very relevant. This is nothing more than a personal vendetta by Mr. Miralia against the Pressmans. The reasons why he has decided to embark on this regrettable conduct is not important. What is important is that he has. Mr. Gaines believes that Mr. Gunther and the Board has centered upon the appropriate aspects. Mr. Gaines statements are merely in response to those things which he believes were inappropriate and apparently allowed by the chairman as an open opportunity for the applicant to speak. The bottom line, notwithstanding all that he has said, is that the posts in front clearly- satisfied the Building Inspector and feels it is a fair interpretation of the statute that the posts are presently fine. In connection with the issue of the posts on the side yard, whether there was regrading or whatever, there is soil and a ground level on the Pressmans property on both sides of that wall and post. Whether it leads down to the property line and stops there, is something that was done in an attempt to comply with the statute. Mr. Gaines suggests the Building Department made a proper and correct decision in that regard and asked the Board to look at the history. Mr. Miralia has accused the Pressmans of a number of things, not only before this Board but other Boards as well. The issue is whether these presently existing items are within code. The Building Department's counsel explained what the issues are and asks if the Board will interpret it as it should be. Mr. Gunther asked if there were any questions from Board members of Mr. Gaines. Ms. Martin asked if there is going to be a gate installed between the two posts that are currently on the reserve strip. Mr. Gaines said originally there were gates on the pillars. He believes the posts might have some connecting strips, but he is unsure how far along the gate construction is. The original intention was for a gate. Ms. Martin said there is no evidence as to what'might appear and what might happen. The Board needs to focus on what exists as it is without what might have been, with which Mr. Gaines agreed. Mr.Wexler said the gates are limited in height by the code. It appears from the photographs that the piers are prepared to accept gates. Mr. Wexler asked in reference to the question asked previously, that the granite caps on the piers have a flat plain or polished face edge on it, will that be engraved. Mr. Gaines said there is potential for that, but he is not sure. Mr. Wexler stated on the side there is some engraving on it. Mr. Gaines said he is not sure what is presently contemplated. Mr. Gunther asked if there were any questions from Board members, as there are two separate paths. Mr. Gunther looked at the property today and would like to go back and take another look to have more concentration on the physical presence and take a look at the mounds of dirt. He also has a sense of interpretation of what is requested. At the same time, he would like background and research from Zoning Board September 10, 1998 Page 15 counsel as to definition to better understand how the Town's Law was written and if there is any background on gates, posts, capitals, etc. as io how those terms are generally used in real estate law and what definition has been applied to the use of those as well as a decorative feature on top of posts, pillars, etc. Mr. Davis said he can search for such guidelines, but is not sure what will be found. Mr. Wexler said besides real estate law construction law should be looked at, which he feels is more relevant. Mr. Davis said counsel will look into that. Mr. Gunther does not think it appropriate for a constructor of a pillar or fence to alter the grade specifically for the purpose of lowering the height requirement of that pillar. If, on the other hand, it is a part of an overall scheme for decorative changes in the layout of the property, it will be appropriate. If it is done for the sole purpose of lowering the height of a column, then the overall basis lessens the impact of the column. If there are ant mounds specifically built for the purpose of lessening the measurement that is inappropriate, especially if the landfill lays on property other than the applicant's. Mr. Gaines asked if it would be possible for the court reporter to read back the portion regarding grading from the recorded minutes, which was done. Mr. Gunther said on the argument first presented with regard to question A, a determination on the part of this Board as to what constitutes capitals, pillars, posts, etc., he is looking for a sense of some legal precedent that has been established as to how these features are defined. Whereas, Mr. Carpaneto may attempt to view lighting fixtures as not being counted in,Mr. Gunther does not know if the wisdom of the Town Board was along the same lines, as this particular sentence says "gates, posts, capitals and pillars shall comply with the height requirements of this provision except ornamental or decorative features on top of them". As the applicant pointed out, there certainly could be an interpretation that would allow for any size item to be added on top. The intention was for a pillar to exist and then another 12 in. on top of it for some other item. In this particular case, it is defined as an ornamental decorative feature to be on top of it that would exceed 12 in. Mr. Gunther would like a better definition,with counsel's assistance, for some of the terms. Mr. Davis invited both attorneys to submit relevant precedents, if they know of any,whereby Mr. Wexler, as an architect, gave various examples that could be followed. Mr. Gunther said his view is that interpretation was requested of a particular set of facts to come up with a reasonable interpretation as to how the Board should view this and for other instances that comes before the Board. Not every instance in the Town is going to be on 1.48 acres of property. There are very few parcels of property in the Town that are in this particular situation. If other parcels are looked at on Hommocks Road what's there was not built based upon the Ordinance that is currently in place, but built at another time. Mr. Davis said in response to Mr. Wexler's request asking Mr. Davis to do additional research, what is being asked for may be more in the realm of architecture. He said with respect to the height measurement requirement, Mamaroneck code does not instruct the Town to measure height in this circumstance. Perhaps Mr. Carpaneto could provide guidance in custom or practice in the industry. With respect to the question of how to construe the main structure on the top of the post, the Board might want to think about how much deference to give the interpretation in that respect. With this kind of question, do we want to encourage an appeal to the Board if the question in your mind is whether this is a decorative feature or something else or would the Board like to make clear that this kind of interpretation is the province of the Building Inspector. Mr. Gunther said he understands Mr. Davis' point. Part of his logic goes in two directions, (1) an interpretation of height restrictions on walls and fences, and(2)whether or not a variance should be issued Zoning Board September 10, 1998 Page 16 on this particular property. In the structure of interpretation,how the law should be used to interpret same. Whether or not it is appropriate on this property is another matter. In this particular instance, Mr. Gunther might not have a problem issuing a variance. It is an interpretation of the law, which is what Mr. Gunther is addressing. The other part of it, is personal interaction of the parties as presented. Mr. Wexler read the code definition under, grade finished, "the finished grade at any point along the wall of a building is the elevation of the completed surfaces of lawns, walks and roads adjoining the wall at that point". Mr. Wexler said that is how a measurement is taken and expanded on the definition. Mr. Gaines said that was his point when he asked Chairman Gunther. Mr. Gaines does not believe the purpose for which the grade was done should be relevant to the Board. The important thing is that it is done. Nowhere in the code does it specify the reason why grading is done. The purpose behind the grading is irrelevant. Mr. Wexler said the problem is the lone pier, because it appears that someone took a wheelbarrow and dumped it against the pier. The code is very clear about what is finished grade. Currently it is not finished grade. Mr. Gaines said then Mr. Wexler is saying if this is not finished grade, to bring it in compliance would be to go ahead and do the finished grading. Mr. Kelleher asked the chairman where the Board is going with this case. Will it be addressed this evening or at the next meeting, as counsel mentioned. Mr. Gunther said he suggested he is not ready to take action on the application for two reasons, (1) he neMs additional information from counsel and wants to look at the project again, (2) if anyone else has comments to make, and (3) the matter will be adjourned to the next meeting. Mr. Gunther asked if there were any other questions from Board members or the applicant. Mr. Maker said the purpose behind the grading could be critical and expanded on that issue. Mr. Maker hopes he did not offend anyone by reciting the history. It was not intended to be offensive and apologized. On a motion made by Mr. Gunther, seconded by Kelleher, it was unanimously RESOLVED, that the Public Hearing of case#2324 be, and hereby is,adjourned to the September 23, 1998 meeting. APPROVAL OF MINUTES On a motion made by Ms. Martin, seconded by Mr. Kelleher, the Minutes of July 29, 1998 were unanimously approved, 5-0. NEXT MEETING The next meeting of this Board will be held on September 23, 1998. ADJOURNMENT On a motion of Mr. Gunther, seconded by Mr. Wexler, the meeting was adjourned at 10:05 p.m. Marguerit oma, Recording Secretary