TOWN OF MACEDON

ZONING BOARD OF APPEALS

February 15, 2012

 

 

The Town of Macedon Zoning Board of Appeals meeting was held on Wednesday, February 15, 2012, 7:30 p.m., at the Town Complex, 32 Main Street, Macedon, NY.  Present were Chairman Warren Jeffries, members Aaron Cook, Carl Eligh and Ronald Santovito.  Also present were Town Councilwoman Sandy Pagano, Town Engineer Scott Allen, Code Enforcement Officer Aron Thompson, Town Attorney Michelle Villani and Board Clerk Susan Bush.  Absent was John Gravino.

 

Mr. Jeffries called the meeting to order at 7:30 p.m.  He then explained the purpose for which this Board serves and read the Legal Notice as it appeared in the Times.

 

PUBLIC HEARINGS:

 

Z-02-12 – DeMitry – 2283 Vandy Drive – Area Variance – Section 135 Schedule I – Side & front setbacks for addition – Applicant Christine DeMitry and architect Randall Peacock, were present, and Mr. Peacock addressed the Board regarding this project.  The applicant would like to expand her one-car garage with a 14 ft. second bay on the east side and add a second story over the entire garage for additional living space.  She would also like to add an open porch along the front of her house.  Both of these projects would require setback variances.  The garage addition would reduce the side setback from 26.1 ft. to 12.1 ft., and the porch addition would reduce the front setback from 51 ft. to 45 ft.  The expanded garage will allow the applicant to park her car inside, as well as provide more storage space for personal items.  The living space over the garage would be used as a bedroom/bath, and Mr. Peacock has redesigned the existing septic system to accommodate the expansion.  Access to the second floor will be through a mud room at the back of the garage.  The entire exterior of the house will also be renovated as part of the construction project.  It was noted that the residences at 2283 and 2277 have adjacent driveways and garages. 

 

  • Planning Board – Positive referral
  • Wayne County Planning Board – Referral not required
  • SEQR – Not required at Appeals level
  • Town Board – No comment or recommendations

 

There was no one else present to speak for or against the granting of these variances.

 

Z-01-12 – Hansen (Marvin) – 1005 Victor Road – Interpretation of decision – Applicant Paul Hansen and his attorney, Terry Brown-Steiner, were present to address the Board.  Mr. Brown-Steiner stated he had been hired after the appeal was filed and was present to assist the applicant.  He further stated the focus would be on what has been built:  A stand-alone garage in a front yard.  There have also been issues of noise, fireworks, loud music, etc., and letters would be provided from neighbors registering those complaints.  Original permit application was made in 2003, and the planned building looked like a barn.  The building constructed looks like a luxury garage, not a barn.  The permit was issued in October, 2003.  Within a month an application was made to subdivide the property, and a month after that the property was sold.  Mr. Brown-Steiner felt this was misleading the Planning Board at the time of subdivision, and he further stated Mr. Hansen would show misrepresentations made in drawings submitted to the Town; i.e., houses omitted, easements omitted, barn built differently than laid out, built over a decade, permit expired.  He stated his client was told to wait until a new permit was issued because the building was not completed and that Mr. Marvin would have to get a new permit.  A new permit was issued in 2011, and that is why Mr. Hansen is before the Board at this time.  Mr. Brown-Steiner asked the Board to consider revoking Mr. Marvin’s permit and the Certificate of Occupancy.  He then distributed additional materials to the Board including:  Timeline of events; packet of letters; photo of building as it is now; drawings of barn as it was supposed to be; photo showing door with sign “19th Hole”, indicating a party house; photos of grading changes.

 

Mr. Hansen then addressed the Board and reviewed the materials distributed with a history of the property.  He stated when he bought his house in 1999, Sunrise Estates was originally three (3) lots with a 40 ft. access easement.  In the Marvin 2003 building permit application, the map does not show existing houses on adjoining lots; the easement shown was not the proper length; the garage was shown facing Victor Road with a 69 ft. side setback.  He stated the shared access easement created a private street/road, and this building was “front yard” construction.  He complained to the Building Department in 2003, and was advised there was a valid permit to build the barn.  In November, 2003, an application for subdivision was made to the Planning Board for subdivision, and Mr. Hansen described inaccuracies he felt were made in that application.  Construction of the barn was ongoing and concerns were raised by neighbors regarding activities on the Marvin property and flooding on their properties.  In 2011, a new permit was issued for the barn/garage.  Mr. Hansen felt there is a difference in use between a barn and a garage, with the subject building being a garage.  A new permit was issued in November, 2011, and Mr. Hansen stated he was advised that the time to bring up his issues was when the permit was re-applied for and when or if the Certificate of Occupancy was issued.  He has been on active duty with the Army until December, 2011, and was limited as to what he could do on this matter.  The 2011 application showed the correct orientation of the building (garage) but again showed an incorrect setback from the private road.  He also described another concern with an embankment which he felt was a fence constructed on the property line.  Mr. Hansen then detailed other issues, including grading, drainage, problems with his pond, piping a stream, property lines, silt fence, wagons/trailers left on property, etc.

 

A Board member questioned the common easement, and Mr. Hansen stated Mr. Marvin owned the easement and he has access rights to it.  He also stated a driveway serves only one property and a street serves two or more.  His primary access is through this easement.  Town Councilwoman Pagano asked what Mr. Hansen was seeking by this action.  He responded he would like the permit revoked, Certificate of Occupancy revoked, stop use order issued on the garage, and the building moved/removed.

 

Chairman Jeffries asked if there were any commercial uses being made of the building, and Mr. Hansen responded there were not.

 

The residents at 1015 Victor Road were present to support Mr. Hansen’s appeal.  Their complaint included the noise and traffic generated from the Marvin property.

 

There was no one else to speak in favor of the appeal.  Mr. Jeffries then asked if there was anyone to speak against the appeal.

 

James Bonsignore, attorney for Michael Marvin, was present to address the Board.  Mr. Bonsignore stated the focus of this appeal was not easements and boulders, but to make a determination whether the Code Enforcement Officer made a proper decision in issuing a building permit and Certificate of Occupancy for the barn.  There is a nearly 10-year history of this dispute, and the vast majority of the concerns Mr. Hansen has addressed were issues where he has not availed himself of administrative remedies.  He did not appeal in 2003; he did not file any complaints or claims in 2005.  He has not availed himself at any time of coming before the ZBA or any other judicial board.  Town Code and Town Law provide a 60-day statutory time period in which these appeals could be brought.  The appeal documents filed state he does seek relief from the 2003 decisions and “any other” decisions made including the 2011 decisions.  The initial appeal was filed on January 11, 2012.  That appeal was timely; however, the amended appeal filed on January 18, 2012, was outside the 60-day period.  The amended appeal would be improper and attempts to bring in additional claims that were not in the initial appeal.  Many of the issues stated in the initial appeal do not deal with the granting of the Certificate of Occupancy and the building permit for the barn.  Mr. Hansen’s letters of complaint have been addressed multiple times by Code Officer Scott Allen or others in his office, including Code Officer Mike Nelson.  The correspondence from Mr. Hansen and the responses from the Town show the issues have been addressed by the Planning Board and through Code Enforcement.  Mr. Bonsignore also reviewed the septic system mentioned in Mr. Hansen’s complaint.  He stated there is a septic tank but no septic system.  There is no plumbing connected to the barn; there are no leach lines; there is no water service.

 

Michelle Villani, attorney for the Town of Macedon, then addressed the Board.  She commented that most of the issues in Mr. Hansen’s appeal should have been filed years ago.  Nothing was done secretly, hearings were held at the time, and the ZBA’s focus should be on nothing before the issuance of the November 14, 2011, permit.  She also pointed out the 2011 permit was issued administratively.  The building had been completed years ago, but no Certificate of Occupancy had been issued and the permit had expired.  After the issuance of the new permit, no additional work was done on the building, and that is why there was a four-day window between issuing the permit and the C of O being granted.  The time for appeal has expired on anything before the November, 2011, permit.

 

Mr. Hansen then stated he had been advised by the Building Clerk that he had another week to file an amended appeal prior to the monthly submission deadline, and it had taken him five (5) days to get his FOIL request filled.

 

Chairman Jeffries received permission from Mr. Hansen and Mr. Marvin, who was also present, for the Board members to visit the properties in question.

 

  • Planning Board had no opinion on the matter
  • Town Board had no comment

 

There was no one else present to speak for or against this matter, and the public hearing was closed.

 

Chairman Jeffries then called a brief recess.

 

BOARD DISCUSSION:

 

Z-02-12 – DeMitry – 2283 Vandy Drive – Area Variance – Section 135 Schedule I – Side & front setbacks for addition – A motion was made by Aaron Cook, seconded by Ron Santovito, to grant the variances as submitted.  Board members noted similar variances have been granted in the same neighborhood.

 

The five factors were reviewed:  No undesirable change in the neighborhood; the benefit sought could not be derived from another method; variance is substantial; no adverse environmental impact; difficulty is self created.

 

Roll Vote:  Cook – yes; Eligh – yes; Gravino – absent; Santovito – yes; Jeffries – yes.  Therefore, these variances are granted.

 

Z-01-12 – Hansen (Marvin) – 1005 Victor Road – Interpretation of decision – In order for the Board members to review the materials and visit the site, this matter was deferred to the March, 2012, meeting.

 

MINUTES:

 

A motion to approve the 01-18-12 minutes was made by Carl Eligh, seconded by Aaron Cook.  All in favor (Gravino absent); minutes approved.

 

ADJOURNMENT:

 

A motion to adjourn the meeting was made by Aaron Cook, seconded by Carl Eligh.  All in favor (Gravino absent); meeting adjourned at 8:55 p.m.

 

Respectfully submitted,

 

 

 

Susan Bush

Clerk to the Board