TOWN OF SARATOGA
ZONING BOARD OF APPEALS MINUTES
March 26, 2007
Chairman Stephen Bodnar called the meeting to order at 7:30 p.m. and led the flag salute.
Chairman Stephen Bodnar explained the Rules of the Board.
Zoning Clerk Catherine Cicero called the roll: Chairman Stephen Bodnar – present, Clifford Hanehan – absent, Thomas Carringi – present, Barbara Faraone – present, Joyce Waldinger – present, Bill Moreau – present, James Burke – present, and Alternate Clarence Fosdick – absent.
Also present: Town Zoning Officer Robert Hathaway.
Approval of Minutes: All board members present had read the minutes of the February 26, 2007 meeting. A motion was made by Chairman Stephen Bodnar, and seconded by Thomas Carringi, to accept the minutes of the February 26, 2007 meeting as written. Chairman Stephen Bodnar – aye, Bill Moreau – aye, Thomas Carringi – aye, Joyce Waldinger – aye, James Burke – aye, and Barbara Faraone – aye.
Carried 6 – 0
Order of Business:
Jane & David Sheeran, Applicants #07-04
176 Burke Road
Saratoga Springs, NY 12866
S/B/L 181-1-26 Rural
Returning Applicants intend to divide their 34.39+/- acre lot into four lots; Lot 1 would be 6.53+/- acres, Lot 2, with an existing house, would be 3.43+/- acres, Lot 3 would be 11.33+/- acres, and Lot 4 would be 13.0+/- acres. Applicants are requesting a variance of 100’ for road frontage for Lots 1 and 3. Under Town Zoning Regulations, lots over 5 acres require 300’ of road frontage; however, Applicants are proposing 200’ for Lots 1 and 3.
James Vianna addressed the Board on behalf of the Sheerans. The Sheerans appeared before the Planning Board and the Zoning Board of Appeals last month. At the Zoning Board of Appeals, the matter was tabled. The Planning Board denied a proposed flag lot. The proposed subdivision has been reconfigured to eliminate the flag lot; however, there are now 2 proposed lots over 5 acres, each of which would require a minimum of 300’ of road frontage pursuant to Town Zoning Regulations.
Mr. Vianna explained that the common driveway that would serve Lots 1 and 2 would be relocated to gain a better slope. Currently the driveway does not comply with Town driveway standards because it is too steep. Mr. Vianna said that he would submit plans on the topography to the Planning Board to reduce the driveway grade and bring it into
conformance with Town Zoning Regulations. The new driveway would follow the property lines more closely, and the present driveway would be abandoned. Mr. Vianna said the subdivision plans were drawn up with the topography of the parcel in mind, and the existing trees will be used for screening from the road view shed.
Mr. Vianna further explained that Lots 3 and 4 would use an existing logging trail, which would be improved to meet Town Zoning Regulations. No new entrances would be made onto Burke Road.
In answer to a question from William Moreau, Mr. Vianna explained that the lots were configured based on aesthetics and logic. The lot line on Lot 1 was extended to the back of the property so that Lot 3 would be more symmetrical, the acreage on the lots would be more uniform, and the owner of Lot 1 would not have anything built on the land behind that would look down on that residence. He added that, economically, the property might be more appealing to a buyer if it was over 5 acres.
A discussion followed on why the Town established a 300’ minimum road frontage for parcels 5 acres and over. This was to avoid the creation of “spaghetti” lots in the Town.
Proof of notice having been furnished by newspaper on March 16, 2007, Chairman Stephen Bodnar opened the Public Hearing at 7:44 p.m. for public comment.
Dan Craine – Mr. Craine noted that the Planning Board denied a proposed flag lot because it would set a precedent for other developers within the Town and wondered if the granting of the variance here would set a precedent for the spaghetti lots the Town has been trying to avoid.
Chairman Stephen Bodnar replied that each application before the Zoning Board of Appeals is judged on its own merits. He said a variance could be avoided on Lot 1, and the remaining lots, other than Lot 3, would comply with regulations for road frontage. He went on to explain how it might make sense to ask for the variance on Lot 1.
Mr. Craine said that he understood why the variance would apply to Lot 3, but expressed concern that other properties along Burke Road could ask for similar configurations. Therefore, he was still concerned about setting a precedent for other properties.
Jane Sheeran noted that her property was purchased before the Town adopted its zoning regulations and said that this should be a “grandfathering” situation. Mr. Craine responded that the argument could be applied to many properties along Burke Road.
Marian Craine – Mrs. Craine said that the Sheerans could create 3 lots without the necessity for a variance.
Chairman Stephen Bodnar repeated that the Board was concerned about setting precedent, but that it judges each case on its own merits.
Eugene Frederonco – Mr. Frederonco wondered if the Board was going to base its decision on the fact that the driveways would be shared.
A brief discussion followed, in which Mr. Vianna said that the lots have been set up in a way that would maintain the rural character of the road and provide screening between homes and from the road. In answer to a question from Chairman Stephen Bodnar, Mr. Vianna said that he assumes that power to the new homes would be under ground, probably beneath the shared driveway. He pointed out on the survey where the homes would be sited.
The Public Hearing was closed at 8:09 p.m.
In response to a question from Barbara Faraone, Mr. Vianna explained that Lot 2 would not be reduced in acreage due to the relocation of the driveway.
In response to questioning from Chairman Stephen Bodnar, Mr. Vianna said the plans are for single family homes. While there are no plans to deed restrict the lots, he did not think that further subdivision would be possible because all the septics will be designed for single family homes.
Joyce Waldinger said that she loves the concept to preserve the rural character of the road, but is concerned about Lot 1 being over 5 acres.
William Moreau seconded her concern, stating that a precedent would be set, and that if the Board keeps allowing variances slightly over the limit, soon the Town would have to allow spaghetti lots.
James Burke said the problem the Board was contending with is the idea of setting a precedent for future developers.
Barbara Faraone pointed out that the Board is constrained to grant the least variance necessary and that economic hardship is not grounds for a variance.
William Moreau commented that the concept is a “home run.” However, the number of lots would not be reduced by reconfiguring Lot 1 to less than 5 acres. He said that once the Sheerans are gone, the Board will still be there to battle the next application for this type of variance.
After conferring with his client, Mr. Vianna withdrew the request for a road frontage variance on Lot 1. Lot 1 will be reconfigured to 4.99+/- acres with 200’ of road frontage, while Lot 3 will be increased to 12.87+/- acres. Therefore, one request for a variance was left for the Board’s consideration: a request for a road frontage variance of 100’ on Lot 3.
William Moreau made a motion, seconded by Thomas Carringi, to approve a road frontage variance on Lot 3 of 100’, and noted that Lot 1 would be reconfigured to be less than 5 acres, making a variance unnecessary. Chairman Stephen Bodnar – aye, Bill Moreau – aye, Thomas Carringi – aye, Joyce Waldinger – aye, James Burke – aye, and Barbara Faraone – aye.
Carried 6 – 0 GRANTED
Marilynne S. Summers, Applicant #07-05
1230 NYS Route 9P
Saratoga Springs, NY 12866
S/B/L 193.18-1-24 Lake Residential
Applicant is proposing to construct a 614 square foot addition on her house and a 521 square foot deck with steps. She is applying for an area variance of 2,098 square feet, a combined side setback variance of 33’, and a minimum side setback variance of 17.7’ due to the location of the existing house on the non-conforming lot.
Surveyor Dan Wheeler appeared on behalf of the Applicant and noted to the Board that Galarneau Builders would be the contractor for the project.
Ms. Summers has combined 3 parcels onto one deed. Each currently has a separate tax bill because the property was purchased fairly recently, in August 2006. There is an existing 2-story, 2-family house on the property, which consists of 2 square parcels, bisected by a 20’ strip of land parallel to the road, variously termed a right of way or a road way or a paper street. Mr. Wheeler said that extensive research was done by Timothy Provost of Sneeringer, Monahan, Provost & Redgrave Title Agency, Inc., who could not determine the origins or the purpose of the strip or who has the right to use it. Mr. Wheeler did not believe the right of way was currently in use, or had been used historically.
In response to questioning from Chairman Stephen Bodnar, who has been on site, Mr. Wheeler explained that the addition would be two stories and the deck would sit 8’ off the ground at its highest point where it meets the building.
Most of the Board’s discussion centered on the right of way portion of Ms. Summers’ property. In answer to a question from Chairman Stephen Bodnar, Mr. Wheeler said that Ms. Summers has a warrantee deed, not a quit-claim deed, for her property.
Mr. Wheeler said that Ms. Summers would withdraw her request for a variance regarding the deck, which would have been constructed within the right of way area. He then asked the Board to consider just the variances related to the proposed addition on the house. He said the issue of Ms. Summers building within the right of way would be pursued through legal channels.
Zoning Officer Robert Hathaway commented that Ms. Summers owns the property, whether it’s a right of way or not; she just can’t build on it. He said that he has spoken with Town Attorney William Reynolds regarding this matter.
In response to questioning from William Moreau, Mr. Wheeler said that the strip of land is not the old rail road bed, which is adjacent to the property, nor could Mr. Provost find the original use for the strip, even though he researched the property back to the 1920s. He could find no consistent wording for the use of the property, or who could use it. Mr. Wheeler said that the strip was once much longer, but has been chopped up over the years and the County has sold off pieces of it. Some people have even built on portions of it.
He pointed out on the map where the right of way has disappeared entirely.
Proof of notice having been furnished by newspaper on March 16, 2007, Chairman Stephen Bodnar opened the Public Hearing at 8:31 p.m. for public comment.
Michael Sekerich – Mr. Sekerich said that he owns two parcels next door to Ms. Summers and that the right of way cuts that property in half. He said that he crosses over the right of way to get to his back parcel. Mr. Sekerich showed the Board a 1988 map that showed the previous owners of the right of way and how it was used to access parcels that did not front onto NYS Route 9P.
Mr. Sekerich reminded the Board that he was granted a variance in August 2005 to build a residence on his back lot, but directed Mr. Sekerich to include a setback of 25’ from the right of way property line. The driveway to the back lot crosses from Mr. Sekerich’s front parcel over the right of way to that lot. The two lots are on separate deeds. Mr. Sekerich’s deed refers to the right of way as a “paper street.” He said that, if Ms. Summers is allowed to build within the right of way, his back parcel will become land-locked. He said that he has had a trail to his back property over the right of way since 1973, but has never filed for an easement. Mr. Sekerich said that he has parked on the right of way and used to drive over it to get to 9P from the back lot until the far end was blocked off by a neighbor.
A discussion followed on whether or not an easement must be included in a deed. Mr. Wheeler said that is not always the case.
Chairman Stephen Bodnar read the August 2005 Zoning Board of Appeals minutes reflecting that matter, which provided no additional information. He reviewed the Town Zoning Regulations to see if there was a reference to rights of way; there were none.
Mr. Sekerich pointed out that there are utility poles located within the right of way that serve existing homes.
Zoning Officer Robert Hathaway commented that even if the Board were to grant a variance that included the deck, he would have to speak with Town Attorney William Reynolds before issuing a building permit. He did not think the circumstances here were the same as those for Mr. Sekerich.
William Moreau said that, if the parcel is now on one deed, the right of way is owned by Ms. Summers, and is of no concern when deciding on the variance.
Mr. Sekerich repeated that he does not want the rear property to become landlocked. Mr. Wheeler said that Ms. Summers would be willing to grant an easement to Mr. Sekerich across the right of way for him to access the back lot. Mr. Sekerich does not want an easement because he might sell the back parcel some day.
Joyce Waldinger said that an easement would not affect the Board’s determination in this matter.
The Public Hearing was closed at 9:15.
A discussion followed on how close Ms. Summers could build to the old right of way lot line if she were granted a variance for the addition, which would be constructed 2’ from that lot line.
Barbara Faraone said that her only concern was the legality of Ms. Summers’ ownership of the right of way and whether building 2’ from that lot line would create a problem later.
Joyce Waldinger noted that Ms. Summers still owned that strip of property.
James Burke did not foresee a problem so long as nothing was constructed on the right of way.
A discussion followed on setting a precedent to eliminate the 20’ right of way in various places along the lake.
Chairman Stephen Bodnar made a motion, seconded by Thomas Carringi, to grant the request for a side setback variance for the addition to the house, without the deck. Chairman Stephen Bodnar – aye, Bill Moreau – aye, Thomas Carringi – aye, Joyce Waldinger – aye, James Burke – aye, and Barbara Faraone – abstain. Carried 5 – 0
GRANTED (Side set-back for addition only)
New Business: None
The next regular meeting will be April 23, 2007 at 7:30 p.m.
Chairman Stephen Bodnar made a motion to adjourn at 9:33 p.m. The motion was seconded by James Burke. Chairman Stephen Bodnar – aye, Bill Moreau – aye, Thomas Carringi – aye, Joyce Waldinger – aye, James Burke – aye, and Barbara Faraone – aye. Carried 6 – 0
Catherine E. Cicero
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