A "mixed-up" agenda and the difference between an "Area" Variance and a "Use" Variance explained

The May 27th Zoning Board of Appeals meeting, held the same night as a Town Board Meeting because of the Memorial Day Holiday, was held in the Senior Center at Town Hall.

The published agenda listed 3 items as "Public Hearings" and two for "Discussion".

None of these were public hearings. This is a really important distinction, because Public Hearings require published legal notices -- and are the ONLY time the public can speak on matters affecting their neighborhoods, neighboring properties with the Zoning Board. This is public record stuff - which at the time may seem like a typo or administrative error -- but can have major ramifications later on, resulting in litigation. Please remember that the ZBA is a judicial board - which by their actions, set precedent and have implications on the look, feel and quality of life in the town. Paying attention to the detailsis really important.

So - the first item for discussion - involved 15 Spook Hill Road - where the applicant has hired a lawyer to represent him in what has been a contentious history of misunderstandings - either inadvertant or deliberate, depending on one's perspective. The applicant's lawyer emphasized a "fresh start" and it was clear that there have been preliminary meetings between the ZBA attorney (new to the board and not part of the original discussions), the Building Department and the applicant's attorney. The applicant had previously received a variance of 19.1 feet to construct an entrance to an existing house. They built a front porch - and where 35 feet are required for a set back, the applicant can provide 11.7 feet (decimal measurement, not inches) - requiring a variance of 23.5 feet. There was discussion about where the measurements in the original variance were made. - from what point in the existing house -- and there was grudging agreement that there may have been some confusion, but also the ZBA members suggesting that the survey of the original condition may not have fully prepared them.

The ZBA members, especially the chair, were decidedly grumpy. A site visit is scheduled for June 7, with the chair requesting that the applicant NOT be present and that the attorney represent them at the visit, with the ZBA attorney. There will be further discussion at the June 10th meeting.

Second on the agenda for discussion -- 127 Chelsea Road -- the agenda initally listed the request to have a 6 foot fence in the front of the property, where 4 feet is allowed, but during the discussion the applicant stated that the reason for the fence was that they are planting fruit trees (the chair wanted to know the kind and said his brother-in-law was also planting fruit trees and he laughingly said "deer food" -- hilarious) -- and that the expert recommendations for fencing to protect trees from deer are 8 foot. He said it would be an "agricultural fence" and while he didn't have pictures at the meeting, he will provide them and implied that the fence would allow visibility. So -- the decision was made that the variance request will be modified to include a variance of 4 feet for the fence in the front yard, and 2 feet for the side yard fencing (where 6 feet are allowed). The paper work for the public notification/legal notice will be updated and the public hearing was scheduled for June 10th.

Third on the agenda - for dicussion - was a homeowner requesting setback variances for 256 Myers Corner Road to install a 10 x20' shed. He explained that the property lines (angled) and topology of the property (rocky/sloped) precluded putting the shed in a spot within the allowable setback variances. A 40' foot rear yard variance and 15' side yard foot variance are requested. June 10 is the Public Hearing.

33 Middlebush Road is presenting an interesting dilemma for all involved. The ZBA attorney explained that most of what the board deals with are "area variances", that is changes to setback requirements. This request is for a "use variance" which involves a higher standard of proof -- and where the criteria for an area variance doesn't require that all elements are met, for a change of use variance -- all elements MUST be met.

The owner got a use variance in the past so that the property could be rented out to 3 (or is it 4.. the ZBA attorney asked for clarification) contractors as storage for materials, equipment, tools, vehicles. The owner has been trying to rent the property (which is still under construction.... and it is amazing the obliviousness of some of the ZBA members to the status of propeties, in this case literally right under their nose). and has also put the property up for sale. The real estate agent who has been promoting the property said there were many inquires for auto repair shops, retail etc. -- none of which are permitted uses. There is now an interested buyer - who would like to use it for personal storage and rent out as contractor storage. This would required a change of use variance (remember the building department initially guided the applicant to the Planning Board, which said "wrong board") -- and what makes this difficult, as explained by the ZBA attorney, is that this is NOT a change of use, because the contractor storage is still being requested, but rather an additional use - so it will be difficult to determine the financials of the project (how much contractor/how much personal). The financials are important because one of the criteria is that the applicant's Return on Investment expectations can't be met and if they aren't granted a change of use, that there is a financial burden.

The engineer representing the applicant and the real estate person argued that using part of the property for personal storage (cars, boats etc) would result in less traffic in the area than the current permitted use. Also, with the municipal buildings, school buildings and other commercial buildings on Middlebush road, that this change would not change the character of the neighborhood or impact the residents.

The Board was skeptical that the property was appropriately marketed to contractors... the chair arguing that contractors would want a finished product before agreeing to rent the space - and since the building isn't finished, the marketing can't have been serious. The real estate person arguing that contractors have viewed the property and had suggested changes that could be made while in the building process that would make it more attractive to them (it does beg the question of what kind of contractor can't see a project in the building stage and not understand what the finished project could be, would you want such a person as your contractor?). The suggestion was made that the current owner would not be able to pass the "is the situation self-inflicted?" test, because it is... but that a future owner could make the request and say "no, the situation is not self-inflicted" -- but then what logical person would buy a building without an approval to the changed permitted use? The other suggestion is that the Town Board could rezone the property. The Director of Strategic Planning & Municipal Codes, while explaining she can't speak for the town board, was fairly emphatic that the Town Board would NOT be interested in a zoning code change ... and it could be viewed as "spot zoning". A board member asked about the potential change to the property assessment, which would impact the amount of taxes the town would be collecting.

So -- a lot more work to be done, the ZBA attorney mentioning that a lot of the facts, figures etc would have to be available for the public hearing. The next meeting was scheduled for June 10, with the engineer mentioning that it may have to be rescheduled to allow the applicant's team time to get their information collected.

Please remember that this project is around the corner from the huge gas station being built that never received this level of scrutiny from any of the town's boards.