1 TOWN OF VICTOR ZONING BOARD OF APPEALS August 21, A regular meeting of the Town of Victor Zoning Board of Appeals was held on August 21, 2017 at 7:00 P.M. at the Victor Town Hall, 85 East Main Street, Victor, New York, with the following members present: PRESENT: Keith Maier, Chairman; Scott Harter, Vice-Chairman; Michael Reinhardt; Donna Morley; Matthew Nearpass OTHERS: Alan Benedict, Code Enforcement Officer; Patricia Bartholomew; John R. Pecora; Faith Kunes; Debby Trillaud, Secretary The meeting was opened, the Flag was saluted, and the Pledge of Allegiance was recited. CODE ENFORCEMENT QUESTIONS Mr. Harter I noticed that there was a flashing neon sign at the Kwik Fill the other day. I thought I would just report it to you. The new one, the one that was recently re-done that we gave a ton of variances to. Put that on your hot sheet. Mr. Nearpass Is it that it s flashing or is it really neon? Or is it that they are not supposed to flash? Mr. Harter I think it s LED flashing. Maybe it s LED flashing. Are they allowed to do LED flashing? Mr. Benedict No flashing period. APPROVAL OF MINUTES: There were no minutes to approve. PUBLIC HEARINGS 1. BARTHOLOMEW - BARN Area Variance 1438 Malone Road 17-Z-2017 Applicant would like to Construct a pole barn forward of the front line of the existing residence whereas Section G(2) indicates that an accessory structure is not allowed forward of the front line of the principal structure. The pole barn would be 350 feet from the road and the house is 400 feet from the road. The Chairman opened the public hearing and the secretary read the legal notice as it was published in The Daily Messenger on August 13, 2017.
2 TOWN OF VICTOR ZONING BOARD OF APPEALS August 21, Patricia Bartholomew, owner of 1438 Malone Road addressed the Board. Ms. Bartholomew We want to build, because we are into a lot of hobbies and he has a Corvette, a barn for more storage and for my gardening. We want to put it where it is because we have a water problem on the property. When it rains heavily the water runs from the back all along the stream, all the way to the pond on the neighboring property. We are going to build it on a flatter, higher area. We wanted it in front of the house more, I have water pictures, because it would be more accessible to the house. We are going to put another driveway off the driveway down to it. I did check with the neighbor to the south, Diane Sandburg, and she was willing to sell me some property but she wanted to sell it way in the back which would still be inconvenient. That s why we wanted it to the side in the front. The house is far enough back from the road and the lot is wide enough to the side that I don t think it would harm the view of the house. Chairman Maier What I m going to do now is ask the Board members to ask you questions and then we ll go from there. Ms. Morley The property to the north of you, which is Faith Kunes, where is their home located in comparison to yours? Ms. Bartholomew I think I have a map here. Ms. Morley I have this right here but I don t see her house on there anywhere. Mr. Nearpass It s pretty far through the woods. Ms. Bartholomew It s far enough away, it s probably around 400 feet. Mr. Nearpass It s pretty far and through the woods. Ms. Bartholomew Here is the pond and I think her house is back in here. Ms. Morley And that flooding that you show in the pictures is where? Ms. Bartholomew That comes from back here and all along here and runs to this pond. This we ve let go and it s all natural back in here and here. (Behind the house). Then we have a chicken coop about here with a run, with 11 chickens. Ms. Morley So the chicken coop would be to the west of the pole barn you want to build?
3 TOWN OF VICTOR ZONING BOARD OF APPEALS August 21, Ms. Bartholomew Yes. If the chicken coop wasn t there we probably would have put it back farther but I don t want to move the chicken coop and the chickens if possible. Mr. Pecora We might have a water problem and that s why we put it where we did. Mr. Harter I would follow up that question with the intent behind the question, which is, will the pole barn have any impact on your neighbor to the north, Faith Kunes. Ms. Bartholomew I don t think so. Mr. Harter It won t be visible then or interfere with their Ms. Bartholomew No more than our house is, because it s all a wooded area and shrubs between us. Mr. Harter That s what I saw from a photograph that was just passed through. The estimated distance from the right-of-way according to this drawing is 300 feet is that right? Ms. Bartholomew What is a right-of-way? Mr. Harter A highway boundary. Ms. Bartholomew I have that, it s 284 feet. Did you get this drawing? (survey map). Mr. Harter I think I have that one too. Ms. Bartholomew That is 284 feet, well it would be 244 feet from the road, from the front of the barn. Mr. Harter It s 244? Ms. Bartholomew Well, can I come up there? It s 284 feet to the back of the barn. We are going to have the 40 foot length that way and the barn doors on that side. It was determined that one of the plans given, that stated 300 feet, was incorrect and superseded. Mr. Harter I think I understand that you said you are going to connect this barn to your main driveway. A kind of fork in the road so to speak. Ms. Bartholomew Probably gravel.
4 TOWN OF VICTOR ZONING BOARD OF APPEALS August 21, Mr. Nearpass What do you want to do with the barn? You re a car person, so it s car storage? Mr. Pecora In the wintertime, yes. Mr. Nearpass I know you had pictures of the water. How far back from the house is that because I see there are two accessory structures back there now? Ms. Bartholomew That s my house from the road and the water runs all along the west side up to the pond in the shrubbed area. Chairman Maier So the west side is behind your house? Ms. Bartholomew The west side is on the side of the house, no, I m sorry, it s on the north side. It runs from the west back along the north side. Our house is on a hill. Chairman Maier I just wanted to confirm it because I think that the low spot is on the north side. So it runs down the north side to the back. Ms. Bartholomew Right, but we re not putting it there, we re putting it on the level area. We have to have it graded before we build. Mr. Nearpass Even this picture here looks like there is a pretty heavy grading along the whole side of the property so you are going to have to regrade it and build that up? Ms. Bartholomew Yes. Mr. Nearpass So have you considered having it closer to the chicken coop or if it were attached to it? Ms. Bartholomew Well, I have a garden there, then I have the chicken coop and I was hoping not to disturb any of that if possible. I m a gardener. Mr. Reinhardt Ok, I m going to ask you, we re going to revisit this, because you were showing and over here, over there, and the record has a hard time recording it. What I d like you to do is if you would come up for me and I d ask you to draw on this plan and we re going to keep it as an exhibit. You were identifying a few things for us. There was a stream, there is a chicken coop and your garden.
5 TOWN OF VICTOR ZONING BOARD OF APPEALS August 21, Ms. Bartholomew marked on the plan where stream, gardens (Vegetable garden and eight other gardens), and chicken coop were located while explaining to Mr. Reinhardt. The marked plan is in the file on record. Mr. Reinhardt You just about filled up the whole plan, which is fine. So to me it does make some sense why you picked this location. Are you planning on doing any kind of buffers, whether it be shrubs or trees? Ms. Bartholomew Yes. I was planting today, look at my hands. I plant all the time. Mr. Harter Is the photograph that you provided us with here that says 2005, is that superseded? Ms. Bartholomew That s my camera. It was actually taken this spring. Mr. Harter So the date in the upper left corner is correct. Ms. Bartholomew Yes. Chairman Maier I m going to open it up to the public and then read the notes that we ve got and I have a few questions I m going to ask. Is there anyone would like to speak out for or against the application? Ms. Faith Kunes of 1436 Malone Road addressed the Board. Ms. Kunes I m the property to the north. I would like to see that picture of where the water was because I don t have that. I have several concerns with the variance considered for the property. That s a property that I had subdivided off of my property in I don t know if this is helpful but I have the topography map which shows the grading s and the flooded areas and that sort of thing on that piece of theirs. I happen to have an extra copy, do you want that? Mr. Harter We can take a look at it. Chairman Maier You can submit that now. Ms. Kunes I have copies of what I want to say. Do you want a copy of that? Chairman Maier Is it different from what you said on August 9 th? Ms. Kunes What did I say on August 9 th?
6 TOWN OF VICTOR ZONING BOARD OF APPEALS August 21, Chairman Maier You sent an saying that your name is Faith, you live at 1436 Malone Road. Ms. Kunes I think this in more depth of detail. Chairman Maier So you can submit that too. Ms. Kunes Here is the map that shows both properties. The reason I brought it is because it shows the topography and how Pat s land is laid out. I had brush hogged it a couple of times too, you can t tell now because no one has brush hogged it as to where the knolls and that sort of thing are. It shows my property and where my house ended up being. I drew a map because the map that I saw that was provided by the Town did not have all the outbuildings that are actually on the property, even though they are temporary. It s scribbly, excuse my drawing. I ve given you the map and that shows the lowest and wettest land on the north. Can I look at the picture that Patricia had? From a distance it looked like it was my pond. Patricia was talking about where the water is. That s all on my property. It s an old creek bed that runs from the back property on the west and runs to my pond. There is no sitting water on that piece of property but it is all swampy down there and you can see that from the topography. The next knoll is out behind their property. I m concerned that they are proposing to construct a 1,280 square foot pole barn in front of the house which is ¾ of the size of the house. The house is only 1,640 square feet. On the picture I got from the Town, the barn has two large garage doors. There are 350 feet on the parcel that isn t even used to the west. It is higher ground and has never been cleared. They are the third owners and it s always baffled me as to why no one has built out there. Mr. Nearpass I thought we just talked about the west and I m looking at a photo as well. There is the area that you said is swampy. Ms. Kunes That s on the north of their property only. It runs the full length of the 700 feet. Mr. Nearpass Then there is a wooded area with a trail and then there is another home. Ms. Kunes Must be my trails. Can I come up and look at your picture? There really are no woods, it s all brush. Those are my trails. The current existing buildings are on the drawing I gave you. There is already an attached two car garage which is not being used for the vehicles. There is also a tent carport which is also not being used for vehicles. A scattering of four random out buildings one of which is large enough to store the Kubota farm sized tractor. All of that already exists on the property. So far the buildings and tent carport are temporary fixtures and are not in front of the house or as large
7 TOWN OF VICTOR ZONING BOARD OF APPEALS August 21, or larger than the house proportionally. A pole barn would be permanent and would last some 50 or 100 years which would outlast Pat and me. When I spoke with Pat on two occasions I understood her to say that she needed to build the barn because she and her partner needed additional storage for crafts, supplies and vehicles and because of the wetness problem. The wetness is all on that north side of their property. The knolls go down from where their house is and there is another knoll, as you ll see on the topography map on the west of that property. Those are the highest points, in the middle or on the south of their property. I m very concerned about how that will affect my property, especially the value because of the curb appeal of that parcel and the effect on my property with all these temporaries. Chairman Maier I have a questions for you, are you for, against, or concerned about the building on the parcel? Ms. Kunes I m concerned with where they want to place it and I m assuming that the Town will keep watch of where it is as far as that right-of-way between the two properties so I don t have to be concerned about that as far as the boundary between the two properties. Am I correct? Chairman Maier I don t think that s going to be an issue. Mr. Nearpass Is there a right-of-way between the two properties? Ms. Kunes Yes, you ll see that on the topography map. Mr. Harter I don t see a right-of-way, I see a property line. Ms. Kunes A property line and they can t build within 15 feet of that. Mr. Harter I think it s 30 plus feet away from that based on the proposal. Ms. Morley It s 45 feet I think. Mr. Harter They re showing 45 feet from the north property line. Chairman Maier So it s not an issue. Ms. Kunes The right-of-way. I figured the Town would take care of that, I was hoping. As long as you re looking after that interest. Mr. Harter I saw an aerial photograph and it looks like there is a lot of vegetation between your house and the applicant s house, is that correct?
8 TOWN OF VICTOR ZONING BOARD OF APPEALS August 21, Ms. Kunes There is some vegetation between incomprehensible my pond. Mr. Harter It looks like there is maybe 300 or 400 feet of vegetation between the proposed structure and the home site as shown on this plan right here. Ms. Kunes And why are you asking questions about my property? Mr. Harter Because you are an adjoining neighbor and some of the things we consider are the neighborhood and the visual impact of whatever is being proposed. From the information that I ve seen, I think it would be next to impossible for you and your house to see this barn based on this map that you provided me. Ms. Kunes That s not true from where my house is. My house is on a higher elevation on my property. I can see their house clearly and the north side of their property. My house doesn t sit down in that shrubbery. Mr. Harter So even if there is that distance between the two structures, your existing and their proposed, there is still some sort of a visual impact to you? Mr. Nearpass Is there any place on their property that if they put the barn you would not be able to see it? So if they were in compliance with the Code, you would not see the barn? Ms. Kunes If they put it out behind their property I would not see it because my garage is on that side and I have only two windows to the west of my property. Mr. Harter I didn t visit the site, did anyone visit the site? Chairman Maier I did. Mr. Harter Did you see any kind of visual impact to the neighbor? Chairman Maier I couldn t tell from where I looked at it. I really wasn t looking at it in that way. I think you re about 1,500 feet from their house. Is that correct? Ms. Kunes That s correct. It s higher though. Mr. Harter The elevation here, and this is a plan that was done back in I don t know how accurate it is.
9 TOWN OF VICTOR ZONING BOARD OF APPEALS August 21, Ms. Kunes My house is where it is on that map. Mr. Harter OK, that elevation is shown to be 762. Their elevation is shown to be 756. So you are pretty close, you are within six feet of one another. That s for the main residence. This pole barn, according to this, will be placed at an elevation about ten feet lower than the 756, at a 746 elevation so it would not be as pronounced as the house. Just by looking at this drawing, there is a pretty large gap of vegetation between the existing home, your home, and the proposed structure, the pole barn they are proposing. That s my observation of this drawing. Ms. Kunes So you are not concerned that a pole barn that is three quarters the size of their house is being put on that small lot? Chairman Maier I think we look at it as a whole and so these people if they wanted to, they could put a 4,000 foot addition on their house and not come in here. As long as they met the setback requirements and Planning Board approval, they wouldn t need to come here. The way we look at it is in the context of what they have the ability to do and the context of what is in the neighborhood. It s not uncommon to see, in driving around, barns of a variety of different structures. As a matter of fact there are barns in the neighborhood on Malone Road that are probably twice as large. Ms. Kunes But they are not in front; they are not on the road; they are not curb view or curb appeal. Chairman Maier They actually are. We ve actually approved one on the road that s about 25 or 30 feet back from the center line. It s the context as a whole. You understand they are building a 1,200 square foot. Ms. Kunes 1,280, 1,300 is what I thought. Chairman Maier They could build a lot of other options. We try to take a look at it in what they have the ability to do. If they built it alongside their house, in front of the building line of the house, as long as they fit the setback requirement, you may see more of it, if you understand what I m saying. There is room for them to put it alongside their house, not come in here, and nothing can be done about it, the Planning Board approves it. I m assuming if everything is done appropriately. We try to look at it in the context of what they have the ability to do and what has been done in the neighborhood. Also have they done the best job that they can in minimizing the impact. Mr. Nearpass Often when we ve held to this Code the situation is usually that it s been more of a housing development, a newer development, where all the homes are in a similar line and it s
10 TOWN OF VICTOR ZONING BOARD OF APPEALS August 21, generally to keep people from putting sheds in front of their home where you look down the street you see every home 100 feet from each other in a line in more of a development type setting. When you start to get out in the rural areas where the homes are set back. If you look at the home to the south, that s farther east than where they are proposing to put the barn. So it s not necessarily a housing development where everything is down one road. The front of your house is different from the front of their house. Often, in my opinion, it doesn t apply as much when you re in that type of setting. Ms. Kunes That s your opinion. Mr. Nearpass That s my opinion and how I have voted before. Ms. Kunes Because to me on the only 200 foot road frontage that s not wide enough for a pole barn along that side and the topography map shows that it s wet. I don t know why everybody wants to build there. Chairman Maier Thank you. Ms. Kunes Thank you. I can just leave? I ll be notified? Chairman Maier Yes. Come back up please (to Pat Bartholomew). We have a letter from Diane Sandburg that she approves of the construction. That s a letter dated July 13, Mr. Harter That is the neighbor to the south? Chairman Maier 1438 Malone Road. Ms. Bartholomew Faith is on one side, Diane is on the other. Chairman Maier So she would be on the south side of you. Ms. Bartholomew Correct. Chairman Maier As you go up your driveway she is on your left. OK. Ms. Bartholomew She s the one I wanted to buy property from but she wanted.because her kids ride those vehicles all around because she has a little over five acres. She wanted us to buy way in the back. Way in the back what Faith is talking about that s all a hill. I have thimble berries back there if you ever want to come pick. They re terrible.
11 TOWN OF VICTOR ZONING BOARD OF APPEALS August 21, Chairman Maier I understand, there is a septic system back there. Mr. Nearpass Are these structures? Ms. Bartholomew We have barns, I mean garages. Mr. Nearpass Is there a limit to how many accessory structures you can have on a particular lot? Mr. Benedict Not as long as you meet the setbacks. There is a limit as far as the coverage. Ms. Bartholomew They have all been permitted. Mr. Nearpass So they are all permitted, because Faith implied they were temporary structures. They are structures though as far as Al is concerned. Ms. Bartholomew Well they have wooden floors but they are barns. He has his shop, and we have lawn mowers and garden tools in the other. Mr. Benedict The sheds have permits. I wasn t aware of, until now, the tent car port though. Mr. Pecora Incidentally when the barn goes up some of that stuff will disappear. Mr. Harter So there is a consolidation benefit to the barn? (Yes). Chairman Maier Do you plan on having exterior lights? Ms. Bartholomew We haven t thought about that but we have an electrician coming Thursday morning to see if we could run a line from the house. Yes, I would think we would have to put outdoor lights. Mr. Nearpass I thought there was a comment about solar electricity. Ms. Bartholomew Financially I can t afford that. I ve been reading more and more about solar and it s really not Chairman Maier Are you familiar with dark sky lights; dark sky compliant lights? (No). You know those big lights that the farms used to put out that stayed bright all night? Those are not compliant. Dark sky compliant lights shine the light down.
12 TOWN OF VICTOR ZONING BOARD OF APPEALS August 21, Ms. Bartholomew You know Lance behind me? (No) He has two barns back there. A couple of times he s turned this terrible bright light on and you can see it in our bedroom and his house has to be about 300 feet back. It s bright but it has never stayed on. Chairman Maier Would you have an objection if we put a condition on that the lights that you put up would be dark sky compliant? Ms. Bartholomew No, we don t want anything Chairman Maier It can be as simple as putting cans underneath the soffits or picking up the lantern style lights or whatever. Ms. Bartholomew I don t know what you are talking about but I m sure the electrician would. Chairman Maier The landscaping looks very nice by the way. You had talked about doing landscaping around Ms. Bartholomew I d probably put some boxwood or something. Chairman Maier You lived there since? Ms. Bartholomew Chairman Maier - How long have you been talking about the barn? Ms. Bartholomew He just mentioned it about.my son said mother why didn t you do this when you first built the house? I should have but I thought cost wise I couldn t do it. Now we re going to do it. That driveway portable, that ll be gone. Chairman Maier Have you thought about what kind of landscaping you want to do? Ms. Bartholomew Well, when I see the building I m sure I ll have a plan. I m a master gardener, so I garden a lot. Chairman Maier And you re going to see the Planning Board? Ms. Bartholomew Do they do the same?
13 TOWN OF VICTOR ZONING BOARD OF APPEALS August 21, Chairman Maier They are much nicer than we are. It will be advertised to the public. They may ask for some landscaping. I don t know how the Board feels but I m just raising the issue and you mentioned it also. The pole barn is going to be 350 feet from the road, is that correct? Ms. Bartholomew No, I think it s 288 feet. Chairman Maier I want to make sure because we may do a resolution that holds you to it. The public hearing notice says 350 feet. Ms. Bartholomew I d have to move the chicken coop. Ms. Morley It s 244 feet. Chairman Maier I understand but this is the announcement, I just want to be sure. Mr. Nearpass 244, 284 feet to the back. Chairman Maier I need to put it in the resolution. I need to make it official tonight so I need an official number that when Al goes out the stakes show it s that or more. Ms. Bartholomew We staked it out to that last drawing I did shows. That one I just came up with. Mr. Harter It s the one you pointed out to me. 244 plus 40 to the far west corner. Chairman Maier So it s approximately 200 feet in front of the house. There was some discussion. Mr. Harter If 328 is the correct number shown by the surveyor, then her number of 44 feet is correct. It would be approximately 44 feet ahead. Ms. Bartholomew I ve never seen a topography map, how would I get one? Chairman Maier So if we did 240, we give them four feet of wiggle room. Mr. Harter Instead of 244 feet, we give the 240 feet. Ms. Bartholomew Do you think I should draw up a plan of the type of plants?
14 TOWN OF VICTOR ZONING BOARD OF APPEALS August 21, Chairman Maier The thought process behind the setback is that people wanted to look at homes, landscaped areas, as was mentioned tonight, rather than barns and buildings along the side of the road. Occasionally we will request or require something to mitigate the impact of what you are doing, but you are back a considerable way from the road and my sense from the Board is that they are OK with not putting that requirement in. I don t know what the Planning Board is going to request. One of the questions I ve got is for the record, if you happen to know. We have two colors of blue, do we have the names of the blues, is it in the estimate that you got? Ms. Bartholomew I have the pictures, the chart I think. Hawaiian Blue and Gallery Blue. Chairman Maier The roof will be? Ms. Bartholomew Probably the darker. Chairman Maier The roof will be gallery blue and the sides will be Hawaiian blue off the Valspar sheet. Ms. Bartholomew The house is grey, so. Chairman Maier closed the public hearing and read the resolution. RESOLUTION: WHEREAS, an application was received by the Secretary of the Zoning Board of Appeals on July 27, 2017 from Patricia Bartholomew requesting an area variance to construct 40 x 32 pole barn forward of the front line of the existing residence, 240 feet from the highway boundary at 1438 Malone Road, whereas G(2) indicates that an accessory structure is not allowed forward of the front line of the principal structure; and, WHEREAS, said application was referred by Martin Avila, Code Enforcement Officer of the Town of Victor on the basis of the variances requested to the Town of Victor Code; and, WHEREAS, a Public Hearing was duly called for and was published in "The Daily Messenger" on August 13, 2017 and whereby all property owners within 500 feet of the application were notified by U. S. Mail; and, WHEREAS, this application is classified as a Type II action under the State Environmental Quality Review Act per Sections 617.5(c)(10) and therefore does not require further action; and,
15 TOWN OF VICTOR ZONING BOARD OF APPEALS August 21, WHEREAS, a Public Hearing was held on August 21, 2017 at which time one resident spoke concerning the application and had also sent an with concerns and a letter was received from a resident who was in favor of the application; and, WHEREAS, after reviewing the file, the testimony given at the Public Hearing and after due deliberation, the Town of Victor Zoning Board of Appeals made the following findings of fact for the pole barn to be allowed forward of the front line of the primary structure: 1. An undesirable change would not be produced in the character of the neighborhood or a detriment to nearby properties created by the granting of the area variance. Justification: The accessory structure is 240 feet from the highway boundary. It will be buffered to the north and south. There are also other accessory structures in the neighborhood forward of principal residences. 2. The benefit sought by the applicant cannot be achieved by some method, feasible for the applicant to pursue, other than an area variance. Justification: Drainage is an issue in other areas. In the back to the west is the septic system. The location chosen for the barn is the least disruptive of all the areas on the property. 3. The requested area variance is not substantial. Justification: The applicant has a 3.7 acre lot and from an esthetic impact it is not substantial. 4. The proposed variance will not have an adverse effect or impact on the physical or environmental conditions in the neighborhood or district. Justification: The location for the barn is the least disruptive on the property and there will not be a substantial esthetic impact. 5. The alleged difficulty is self-created. This consideration is relevant to the decision of the board, but shall not necessarily preclude the granting of the area variance. On a motion by Keith Maier, seconded by Scott Harter: DECISION: NOW, THEREFORE BE IT RESOLVED that the application of Patricia Bartholomew, 1438 Malone Road, Victor, NY 14564, for an area variance to construct a 40 by 32 foot pole barn 240
16 TOWN OF VICTOR ZONING BOARD OF APPEALS August 21, feet from the highway boundary and forward of the front line of the existing residence BE APPROVED. AND BE IT FURTHER RESOLVED that the following conditions are imposed: 1. Building permits are required for work including, but not limited to, erecting structures, placing signs, pools, fences, mechanical systems, etc. No person shall commence any work for which a building permit is required without first having obtained a building permit from the Planning and Building Department. 2. Any exterior lighting will be dark sky compliant 3. The pole barn will be 45 feet from the north property line as indicated on the drawing that was submitted with the application. 4. The colors of the pole barn will be as submitted with the application. This resolution was put to a vote with the following results: Keith Maier Scott Harter Donna Morley Mathew Nearpass Michael Reinhardt Aye Aye Aye Aye Aye Adopted: 5 Ayes, 0 Nays MISCELLANEOUS 1. AMENDMENT TO RESOLUTION 1155 HUNTERS RUN Area Variance Fence in drainage Easement 15-Z-2017 At the June 19, 2017 Zoning Board of Appeals meeting a resolution was passed approving the request to install a fence in a Town drainage easement whereas F indicates this is a violation of the Code. It has been requested that the Board revisit Condition #4 on the resolution requiring the applicant to move the easement. Chairman Maier We have the letter from Debby from Katie. All I know is what we have in front of us. I believe that the applicant was not happy with the resolution that we made and the condition to move the easement. My understanding is that in order to change and amend a resolution we all have to agree to revisit it.
17 TOWN OF VICTOR ZONING BOARD OF APPEALS August 21, Mr. Nearpass As I read it do we even need to amend it? By July 18, 2018 the applicant shall move the easement to the appropriate location coincident with the photographs submitted with the application showing the drainage is quite different than what is currently in the plan map, AND with the understanding that the Town is in support of that interpretation. So if the Town is not in support of the interpretation Mr. Chairman I think the issue is the cost. I don t have the minutes with me and I haven t had a chance to look at the minutes but I think we gave the applicant the opportunity to come back to us if there was a hardship. To come back to us and present the facts that they have that there was financial hardship and we could revisit it. We have this in front of us. I have not heard anything from the applicant. My guess is that the applicant has gone through a lot and the Town Board is OK with it as long as they get the hold harmless signed. I m just bring up in front of the Board what s been brought up in front of me. My understanding is that in order for us to pursue this we have to agree to pursue it. It needs to be a consensus; we all have to vote in favor and then we can revisit the appeal of the condition we put on it. Mr. Reinhardt I can do the cart first before the horse. Opening a discussion on this, in my eyes is going to go down a road that is going to be unpleasant. I don t agree with it for a number of reasons. I don t agree with a legislative body, the Town Board or the Planning Board or anybody else asking, respectfully or not, asking this Board to change our minds. That s inappropriate, it s crossing the line, and with all due respect to the Planning Board and the Town Board, I m against it. I m absolutely against any type of changing it. If those applicants wanted to come in, they have recourse. They could have filed an Article 78; they could have come back in like you suggested. For this to happen, to me, is crossing the line. Mr. Nearpass This is definitely not something we are used to. I certainly can understand the situation. I m OK with backing out on it. The way it reads, if the Town says, as I quoted earlier, they don t need us to do anything. If the Town says that they are not supporting of the interpretation then they don t have to adhere to condition number 4. To me if we agreed on that, that s the easier path, to recommend back that if the Town is not in support of number 4 then that s the Town s decision. We kind of gave them that out in the clause or I m also OK if we want to go down the other route. I totally understand what Mike said but to me the easier of the two is to say there is an out in the clause that says if the Town is not OK with the interpretation. Mr. Harter I think the out in the clause is to bring it back to us for reinterpretation. That s how I view the word Town in there and that s my interpretation of it. I agree with Mike. I think this sets a bad standard. I think we were actually trying to find some sort of a good solution that something that boiled down to the needs of a dog as I understood it. I thought we offered a solution that not only took care of the dog but also enhanced the value of the property for any other structures that may go in that area. I m not in support of reopening this and I agree with
18 TOWN OF VICTOR ZONING BOARD OF APPEALS August 21, Mike if there was something problematic with what we did the correct way to get us to change our mind, if that is the correct way to describe it, is to appear before us, put your cards on the table, and tell us why what we did in that meeting is harmful to you. I don t see that here. Ms. Morley I m in agreement with Scott and Mike. Mr. Benedict Can I throw in my two cents? Chairman Maier Yes, you may. Mr. Benedict It doesn t necessarily have anything to do with this. I m looking at the Code and I m starting to wonder if, before this one came up, as to whether we re really interpreting our Code correctly. It talks about fences shall not be installed in violation of restrictions on real property which includes right-of-ways and easements. It seems to me if you go to the Town Board and they say they re OK with putting a fence in an easement then is it really now a restriction? Therefore, a variance isn t really needed. Mr. Reinhardt If that s part of the discussion, I have an issue with the hold harmless. I think the last meeting that we had I was adamant about how it was a mistake because of the incident that happened in my own neighborhood. It was a disaster. I know this is a smaller fence, but think it through a little bit. These people are willing to offer up that they will indemnify and hold harmless the County if the County is ever sued for that particular problem. Where is the insurance certificate? Where is it that they have the financial ability, that should the County get sued, that they d have to defend themselves, because their Homeowner s Association isn t going to do it. They have to, out of their own pocket, defend themselves and defend the County in a law suit. That s going to be expensive and ugly. Mr. Harter I think one other thing along those lines is that the hold harmless agreement is only a hold harmless agreement between the Town Board and the current property owner. I think we had a discussion about doing something in perpetuity here such as the variance runs with the land so will the easement run with the land. I ve done a lot of work in a lot of Towns in Monroe County, Ontario County, and Livingston County. I ve never seen one Town that s heads-up on drainage easements that ever wanted any obstruction in a drainage easement. Nothing. Nothing to impose liability on a municipality. I think you know Mike, as well as I do, that the number one job of an engineer or attorney in representing a municipality is to protect your client. This, in my opinion, has foolishness written all over it. I think the hold harmless agreement thing is not a permanent solution. Chairman Maier Al I have a question for you. If the Town Board approves it but doesn t change the Code, it s still not legal according to the Code, would that be correct?
19 TOWN OF VICTOR ZONING BOARD OF APPEALS August 21, Mr. Benedict It just says shall not be installed in violation of restrictions. That again is my point. If the Town says they re OK with it, is it still restricted? Chairman Maier There is still a conservation restriction there, so that has not been lifted. I don t know? I don t have an answer to that. Mr. Benedict You re saying there is a conservation easement? Chairman Maier Drainage Easement, so there is a filed drainage easement that probably runs with all of the properties along through there. Mr. Harter Most likely, the text of that drainage easement, although it wasn t submitted so I don t recall reading it, but most drainage easements speak to no obstructions being placed in there. Even if the Town Board were to say somehow it s OK, I think you should check the language of the easement to see if it is OK. If you have a Town engineer representing you and he says it s OK to put fences in a drainage easement then I guess it s OK but it wouldn t be a practice that I would want to recommend to anybody. Mr. Benedict It almost seems as if you should change the wording of the easement if you are going to allow it. Mr. Harter When I get into these situations I always pull the filed easement at the County Clerk s Office and see what it says. Because every easement is an agreement. The language can vary. Chairman Maier Right, it s a contract. OK. I propose we table it and not vote on it tonight and allow Katie to read the minutes or I can fill her in or Debby you can fill her in or she can listen to the tape. It leaves it open. Ms. Trillaud I mean if you have to unanimously vote to revisit it, you don t even want to revisit it. Chairman Maier What I don t want to do is stop the clock on this. What I m trying to do is leave it open so that we can review it at the next meeting if we need to. If we vote not to review it, I don t know that they can come back in or that we can look at it. Mr. Harter To that end, the question that comes to mind is how long do we want this thing going on?
20 TOWN OF VICTOR ZONING BOARD OF APPEALS August 21, Chairman Maier Not a lot longer. I mean if we have to we ll vote on it and that kind of closes that door. I just want to leave the door open. Mr. Harter If we leave the door open should we send the signal to whomever, Katie perhaps, please send in the owners and we would be happy to listen to whatever their story is. Chairman Maier - I believe it s in the minutes but if there is financial hardship that we allow the option to review it again. Or if there is some other interpretation that we are not aware of that negates what we are concerned about we could take a look at that too. I d rather not vote on it tonight, I d rather leave the door open and allow further dialogue. We ve still got time if that s OK with the Board. Mr. Harter There is a part of me that thinks this thing is like beating a dead horse but there is another part of me that says if there is something out there that we are not considering we should take a look at it. Mr. Nearpass It s a dog fence. Is there a more common sense approach? Chairman Maier Let me get back to what Mike originally started with, and who comes back to see us and how this action is filed. Again, my understanding was it would most likely be the applicant. The applicant would come back. They don t even need to come in. If they wanted they could submit something in writing that we could review and do it that way. I believe the appropriate course of action is if this Board or somebody wants remedy, we can do it. We can say to ourselves, all five of us, that we want to change this, we all have to agree to it and we can go from there or the property owner can come back in and then it doesn t need to be a consensus as long as it s a majority vote we can modify or eliminate that restriction. Mr. Nearpass There isn t anything I disagree with. There are a couple of different opinions. It sounds like even if we have the letter from the homeowner that said we feel there is an undue financial hardship it doesn t negate anything that Mike said. We know that risk is still on the table. Chairman Maier Mike originally said it s how it is presented to us. Is that a good way to put it Mike? Mr. Reinhardt Right. I think maybe a better way, I would have been more receptive to it if the Planning Department or Town Board, or whomever said we re hearing that there is some angst with the homeowners, they have more information, would you be willing to listen to them again? That s far different than the Planning Board or the Town then saying, we, the Town, is
21 TOWN OF VICTOR ZONING BOARD OF APPEALS August 21, respectfully asking you, the Zoning Board, to change your mind. That s where I think the line was crossed. Mr. Nearpass Right now it s Katie Evans asking, it s not the Town Board. Mr. Reinhardt Katie is a representative of the Town. Mr. Harter In addition to what Mike says, I also think in terms of a precedent. To think that people coming before us for a variance can substantiate their request by way of getting a hold harmless agreement from the Town Board. I just think that s bizarre to me. Mr. Reinhardt That s another more detailed issue. What I m suggesting right in the forefront is a procedural issue that I m concerned about that I really don t want to start setting up a pattern that an applicant can go to another Town Official and put some pressure on that Town Official and then that Town Official can turn to us and us and put pressure on us. That worries me. Chairman Maier If something were identified that something wasn t safe or we made a decision that was detrimental to the property owner, we as a Board can bring it up. Mike can bring something up and say look at this, I don t like it, can we revisit it, we put it to a vote and if it s five to zero, we can revisit it. This is a circumstance where we gave the applicant the opportunity to let us know that there is financial hardship. We would take a look at that, we would certainly consider it. I think the information is out there. Mr. Harter I have one more thing. That is, even if tonight we were to say, no we don t want to reopen this, we ve still given that owner until July 2018 to take the corrective action. They would have to wait a year then or more to come back, right? Is that a part of the reopening of the variance? Mr. Benedict It s a year for a denial. Mr. Reinhardt Time accrues for non-compliance with the variance conditions would start, when they didn t comply with the terms and conditions of the variance, would be July 18 th That s when the clock starts ticking. On a motion by Keith Maier, seconded by Scott Harter, it was unanimously agreed and RESOLVED, that the meeting was adjourned at 8:20 PM. Debby Trillaud, Secretary