Town of Esopus Zoning Board Meeting Minutes

Town of Esopus Zoning Board of Appeals
April 17, 2007

The meeting was called to order at 7:30 p.m. by Chairman Don Cole. The Pledge to the Flag followed.

ROLL CALL

Present: Vic Barranca, Catherine Charuk, Don Cole, Joe Guido, and Rob Hare.
Absent: Richard Wenzel and Karl Wick.
Also present: Peter Graham, Esq., Attorney for the Town of Esopus Planning Board; Diane McCord, Town Clerk; John Coutant, Town Supervisor; Town Board members Deborah Silvestro, Wayne Freer, Gloria VanVliet, and Mike Lange; Roxanne Pecora, Chair of the Town Planning Board.

APPROVAL OF MINUTES

VIC BARRANCA MADE A MOTION TO APPROVE THE MINUTES AS SUBMITTED. ROB HARE SECONDED. ALL PRESENT VOTED IN FAVOR.

APPROVAL OF VOUCHERS

Vouchers for public hearing notices in the Freeman for $33.96 and 23.5 hours of secretarial work were submitted. JOE GUIDO MADE A MOTION TO APPROVE THE VOUCHERS. VIC BARRANCA SECONDED. ALL PRESENT VOTED IN FAVOR.

DECISIONAL MEETING

BIRCHEZ ASSOCIATES Case # 12-19-06-01

The following resolution was offered by Vic Barranca and seconded by Don Cole.

RESOLUTION REGARDING INTERPRETATION OF MULTI-FAMILY
DWELLINGS (SECTION 123-13.B.2.b.) OF THE TOWN OF ESOPUS ZONING CODE FOR BIRCHEZ ASSOCIATES DEVELOPMENT PROJECT

WHEREAS, the Town of Esopus Zoning Board of Appeals is in receipt of a request for interpretation of Section 123-13.B.2.b. as adopted by the Town Board on January 11, 1995, Local Law Number One from Birchez Associates and,

WHEREAS, Birchez Associates has requested clarification of as of right density for 81 units proposed for the senior housing apartment development, consisting entirely of multiple dwellings and,

WHEREAS, the Town Planning Board provided copies of communications with their Planning Board Attorney, Mr. Peter C. Graham in a letter dated December 27,2006 regarding this issue and,

WHEREAS, the Town Planning Board's Attorney, Mr. Peter C. Graham in his correspondence dated November 28, 2006 states that the multi-family dwelling section of the Town Zoning Code, Section 123-13.B.2.b. considers fractional calculations and,

WHEREAS, fractional calculations do not apply to multi-family dwellings and that Town of Esopus Zoning Code, Section 123-13.V. provides for senior citizen housing as adopted by the Town of Esopus Town Board on November 17, 2005 by Local Law Number One of 2005,

THEREFORE, BE IT RESOLVED by the Town Zoning Board of Appeals that Section 123-13.V. of the Zoning Code of the Town of Esopus for Senior Citizen Housing supersedes the Zoning Code regarding Multi-Family Dwellings, Section 123-13.B.2.b.

The vote was as follows:
            Vic Barranca - in favor
            Catherine Charuk - in favor
            Don Cole - in favor
            Joseph Guido - I'm in favor of this resolution because I do believe that the specific                     overrules the general.
            Rob Hare - I'm in favor because I believe that in this situation this law does                                overrule the ordinance.

MOTION CARRIED 5-0.

The following resolution was offered by Vic Barranca and seconded by Don Cole.

RESOLUTION REGARDING GRANTING OF AREA VARIANCE FOR BIRCHEZ ASSOCIATES DEVELOPMENT PROJECT

WHEREAS, the Town of Esopus Zoning Board of Appeals is in receipt of a request to grant an area variance to Section 123-13.V.3.e. of the Senior Citizen Housing section of the Zoning Code of the Town of Esopus and,

WHEREAS, Birchez Associates has requested a five (5) unit area variance to allow the 81 unit Affordable Senior Housing Project to be constructed and,

WHEREAS, the Zoning Code of the Town of Esopus permits eight (8) dwelling units per acre for a total of 76 which are permitted by right and,

WHEREAS, the Town Planning Board's Attorney, Mr. Peter C. Graham in his correspondence dated December 19, 2006 states that an area variance needs to be granted,

WHEREAS, Section 123-44.2.a.-e. provides the criteria for such an area variance and that the Town of Esopus Zoning Board has given this criteria due consideration,

THEREFORE, BE IT RESOLVED by the Town Zoning Board of Appeals that an area variance be granted to Section 123-13.V.3.e. of the Zoning Code of the Town of Esopus for Senior Citizen Housing for five (5) additional units.

Joe Guido asked that it be added to the resolution that they do have enough acreage to have the 76 units before he grants a variance. Ms. Charuk said that she is not prepared to vote on this because she is still confused on that issue. She stated that she does not have a copy of the map and asked if there was one in the file. There was no updated map in the file. Ms. Charuk asked for a copy of the map that she had seen previously. Mr. Graham stated that he would be glad to answer any question that she might have. He stated that there is acreage down there that includes lots that are going to be designated for single family homes. They are not included in this density calculation. There was a proposal that showed just where the facility for the senior housing would be. The original acreage backed out other property that they own which is intended to be used someday for public roads that are going to be brought up to Town standards and not just the 22 feet width of the Town road but a 50' wide right of way. Ms. Charuk said that she understood that they were included in the acreage. Mr. Graham said that that is correct and it is part of his ruling that they should be included in the acreage. The reason is that the Town Board has established public policy in the Town of Esopus when it enacted the senior citizen housing law. It wants to encourage senior citizen housing in the Town. It said that it gave them eight units per acre as permitted. The resolution that was just previously adopted was his (Mr. Graham's) resolution against the wishes of the developer that didn't want to even have to do that. Ms. Charuk said that she understands that. Mr. Graham went on to say that as Ms. Charuk knows, the senior citizen housing law says that you can't use as the gross area anything that they don't own completely and over which they only have an easement. So that original 6.6 acres backed out what they do own in fee but which is intended to be put in as a public road. His ruling was that the acreage that they do own in fee as Terry Carle has stated, the title company...until he got that report he wasn't prepared, as Ms. Charuk, to make a determination about it... so that gets up to the 9.6 acreage in his letter times eight came to 72...76 so they need that. The reason being is that the clear reading of the public policy law of the Town of Esopus says that you have to back out from the density calculation what they don't own and over which they only have an easement.

Ms. Charuk said okay, but what she thought she saw on a map that was on the wall the last time and what she wants to satisfy herself about, is that the senior citizen housing plot, the plot on which that construction will sit, is that 9.86 or whatever it is acres. That is what she would like to see because she thinks that she saw something different on the last map that she looked at. Mr. Guido said that she saw 6.2 and that's because the roadway was taken out. He is saying that they can't take that roadway out because of the way the law reads. Ms. Charuk said that that she understands but she is visual and would like to see a map. She asked where the map is and Mr. Guido said it is in the Planning Board file. Ms. Charuk asked if there was anyone from the Planning Board who could get it out. Mr. Graham said he sees the Chairperson.

Mr. Hare said that one of the biggest issues for him was the area which the Board focused on at the last meeting. There was a disagreement as to who owned what and the title company said that their reading on how to handle it is that the land that is claimed to be Birchez's land is in fact Birchez's land. Mr. Graham said that they own the fee, not just an easement over that land, to the exclusion of everybody else. Mr. Hare went on to say that he agrees with Joe Guido saying that the acreage should be stated in the variance so that if there is a question in the future the Board will know where it started.

Ms. Pecora gave the map to Ms. Charuk. Ms. Charuk asked how much of the road is included in the lot, is it the whole road or just what abuts the project. Mr. Graham said that it would be everything but what goes to lots 3 and 4. He also said that there is so much acreage being in because it is not just the road, it is the 50' right of way. Ms. Charuk said she understands that but she just wants to know if they are talking about the road all the way up to River Road. Mr. Graham said that to his knowledge they are not talking about up to River Road. Mr. Graham said the surveyor did the map and he did not actually plot it out himself. Mr. Hare said that their property line is actually the southern line of that road. Mr. Graham asked to look at the map. After doing so he said that he believes that it includes the length of what they intend to build on which would be all the way down to River Road. Ms. Charuk said that then that is different. She has been thinking that it includes the part of the road that is contiguous to the actual parcel of the senior citizen construction. Mr. Graham said that he thinks it is part of the entire site excluding lots 1, 2, 3, and 4 including the road. Ms. Charuk said including the road over which there may be a dispute of ownership. Mr. Graham then asked if there was any further question from the floor since there was a motion made and seconded. Mr. Cole said that the Board would vote. Mr. Guido asked for a copy of the motion. Mr. Hare asked how many acres are being discussed on a 50x100x1000' strip or 50,000 square feet. Mr. Graham said that it is about a half an acre. Mr. Hare asked how much acreage the applicant needs to come up with the 76 by right. Mr. Graham and Mr. Guido answered that it is 9.5 or 9.6. Mr. Hare said that there is 6.621 on the separated lot and we just added a little over an acre so we're only at 7, 7 1/2. Mr. Graham said he can't explain it. He is not a surveyor. He didn't do the math. This is what was presented to him as what was in their site plan for the senior citizen housing totaled 9.5 or 6, whichever is in his letter.

Mr. Cole asked if there was any further question. Mr. Hare and Mr. Guido both said that it goes back to the conclusion of acreage. It should be based on 9.5 acres including the road. Mr. Guido asked if that could be worded into the resolution. Ms. Charuk said that she knows how they got the figure. They took the whole 14 acres and just backed out lots 1, 2, 3, 4, and 5 which is a total of 4 1/2. That leaves 9.5. Mr. Graham said he would work that into the resolution and everyone can just accept his amendment. He said that he is going to add it to the second Whereas clause and it would say this:

WHEREAS, Birchez Associates has requested a five (5) unit area variance to allow the 81 unit Affordable Senior Housing Project to be constructed on a 9.5 acre lot and,

Mr. Graham asked Mr. Guido is that was acceptable to him. Mr. Guido said that that is including the road because Mr. Graham's interpretation is that the Board can't take out for the road. Mr. Graham said that's right. He is just going to add in the resolution on a 9.5 acre parcel. He then asked if the person who introduced the resolution would accept that amendment. Mr. Barranca said yes. He then asked Mr. Cole if he would second it with that amendment and Mr. Cole said yes. Mr. Graham said that now it is up for vote.

The vote was as follows:
            Vic Barranca - in favor.
            Catherine Charuk - I see that we have the other issue about the Planning Board                                     completing it's SEQRA review so the Board now has the power to act. I'm                                     referring to the letter of March 30th. In going through the items I look                                    back. The Town Planning Board's recommendation, the County Planning                                    Board's view that this was a diminimous five extra units for the site, I’m                          aware of the Town’s interest in encouraging senior citizen housing. I heard                     the people who came here in support of senior citizen housing. I certainly                            obviously heard the concerns of the neighbors. I don’t think those are laid                            to rest yet. But I do think that...And I also think, based upon what I’ve                          heard, and obviously I am taking the representation that I’ve heard as                            accurate, that the project would not be doable economically for less than                          81 units. I realize that it’s only five units one way or the other but that does                 seem to be a consideration. I mean I’m accepting, based upon materials                                    provided by Nadine Shadlock and the consultants, that it really has to be                                   81 units in order to I guess put together the economic and whatever else                                they need to do this kind of thing. I mean you know whatever the other                                concerns are, it could be 76 units as opposed to 81, and the difference in                                   size is not a large difference here. So that being the case I’m going to vote                                  in favor of this as amended.
            Don Cole - in favor.
            Joe Guido - All the things Catherine said besides the fact that it does say in the                           interpretation that the road can’t be divided out legally, I have to vote in                            favor of this.
            Rob Hare - I’ve had similar concerns to Catherine. My biggest concern was when                                 the initial application was made to the State for funding. As best as I can                          ascertain, that came quite a while back with the expectation that it was                                 going to be used on a different piece of property. Once you get these                             processes locked in it is extraordinarily difficult to convince the State to                          change their numbers. I believe that Birchez was correct in their concern                               about funding. The Town and Birchez have searched for alternative sites                              and this seems to be the only one that is really available. So for those                             reasons I’m voting in favor.
MOTION CARRIED.

The original resolution and amendment are in the file.

BLUE STONE REALTY Case # 10-12-06-02

No one was present for this case.

BROCKLAND, DONALD Case # 01-16-07-01

Mr. Guido stated that this is for two variances, the size of the lot and the use variance. The lot is one third the size that it should be. The other one is the floor area of the accessory apartment.

(At this time Joseph Mehm of 18 Lakeshore Drive spoke up and asked if this is a public hearing on a variance for Guevara on 22 Lakeshore Drive. He was advised that the applicant had withdrawn her request for a variance. He said that he just wanted to state that a lot of rules and regulations on the book are good suggestions and the 20’ setback all the properties are nearer to that. It looks good out there and the rules and regulations are in place and he recommends that the Board follow them.)

Mr. Guido then said that on the second variance the applicant is allowed 600 square feet and he wants to put in 936. He asked how the Board felt about voting separately since if one fails the other one is moot anyway. Mr. Cole asked how the Board wanted to do it and Ms. Charuk said that they should vote on the one first since it would kill everything if it is not approved. If it passes then the Board can go on to the second. Mr. Guido said that he agreed and thought that the Board should vote on the acreage first.

CATHERINE CHARUK MADE A MOTION TO GRANT A VARIANCE TO ALLOW AN ACCESSORY APARTMENT ON A LOT WHOSE SIZE IS .294 ACRES WHICH IS APPROXIMATELY 2/3 LESS THAN THE ONE ACRE MIMIMUM REQUIRED BY ZONING CODE. DON COLE SECONDED. The vote was as follows:

VIC BARRANCA - I’m in favor. Knowing St. Remy as I do, the size of the properties there, it’s kind of hard to do anything without a variance there. They are small parcels. Looking over the map that he submitted at the last meeting, I don’t think he’s going to do anything to damage the area or the nice looking area that it is. I don’t think he’s going to be damaging it picture-wise or neighbor-wise or any-wise. That’s pretty much...I’ve been there and I’ve done that.

CATHERINE CHARUK - I vote against it. I think it’s just too small. I realize there’s a building there already but our other concerns are density, the number of people you have here. I understand that he’s going to have a parking problem. I’m really sorry, sir, it’s nothing personal but it’s just too small. To put another residence on a lot that’s only a little larger than a quarter of an acre...I’m sorry.

DON COLE - I’m going to vote in favor of it because this situation is a disadvantage to this person the way things are going right now. I feel that our Board is here to help people, not to destroy them or put them down, without destroying the acreage or the area so I’m going to have to vote in favor of it because I can’t see it being a major catastrophe to St. Remy by approving it.

JOE GUIDO - I’m against this. It’s only one third of what it should be. If it was close I could see bending it a little bit but this is too extreme. I agree with everything Catherine said also.

ROB HARE - I’m sorry but I’m going to have to vote against it. I look at it as a major variance and it sets a major precedent. As much as I can see the need of the applicant, I think we’re looking down the road at a lot more of these and I think it’s just too much.

MOTION DENIED.

BLUE STONE REALTY Case # 10-12-06-02

JOE GUIDO MADE A MOTION TO TABLE BLUE STONE UNTIL THE END OF THE MEETING. ROB HARE SECONDED. ALL PRESENT VOTED IN FAVOR.

PUBLIC HEARING

MURPHY, STEPHEN Case # 03-20-07-01

SEFF, LESLIE Case # 03-20-07-02

Joe Pisani introduced himself as representing both Mr. Murphy and Mr. Seff. He presented maps showing the lots and the road in question and explained that this is an appeal to the Zoning Board with respect to a condition of the subdivision approved back in 1984 by the Planning Board. The road was supposed to be developed by the person who sold all these lots and dedicated to the Town. Nothing has happened since that time and people have not been able to get building permits because the Town road was not constructed. What he and his clients are proposing is that the Zoning Board allow this road to remain as a private road instead of being built as a Town road requiring the neighbors to maintain it. It will remain forever as a private road without being dedicated to the Town. One lot has been built on and the lot on the corner which has access onto Burroughs Drive has been built on. The lot that the log house is on got a building permit and that owner has been maintaining and plowing the road. Mr. Cole asked how they got the building permit. Mr. Pisani said that he can’t answer that question but no further permits have been granted and applications have been refused and that is why they are here. Mr. Pisani stated that he circulated a letter to all the property owners asking if they would like to maintain that as a private road and if they would sign a road maintenance agreement. Everyone with the exception of the people who own the log house said they would sign a road maintenance agreement and would like it to remain a private road. He presented copies of the letters to be included in the file.

Ms. Charuk asked why that one party had refused and Mr. Pisani answered that she wants to keep the property undeveloped and she has a right to her opinion but they have 90+% in agreement. He also said that a question was raised as to the bed of the road which is owned by Highland Vineyards, the original conveyor of all the lots. He has obtained a contract from the grantor who owns lots 20 and 21. There are two tax lots that form the basis of Timberline Trail and he has agreed to sell to the homeowners association which Mr. Pisani has incorporated and he presented a copy of the contract as evidence to the fact that he is selling it for $1.00. All of the lots were originally conveyed with an easement for ingress and egress. The closing will take place in a week or so and Mr. Pisani will be getting all the road maintenance agreements signed. Scenic Hudson which owns a lot has also agreed to sign the road maintenance agreement and they will never be building on their lot. They use it as an entrance lot to the 300 acres that they own.

Ms. Charuk asked Mr. Pisani to point out where the pond is. He said that it is owned 50/50 by the Sofers who own the A-frame. They partly traverse Timberline Trail to get to their driveway and Mr. Pisani spoke to their attorney to see if they can work out something with them even though they do not own property in this development.

Mr. Hare said that it sounds to him like Highland Vineyards was the developer and he asked if that is correct. Mr. Pisani said that it is. Mr. Hare said that they are getting away with not putting a road in there for $1.00. Mr. Pisani said that unfortunately 20 years has expired since the conveyance of lots and they have all run out of the statute of limitations to sue. Mr. Guido said that a road could not be put in there now because of the grade. Mr. Pisani said it is an 11% grade. Mr. Guido said he talked to the Highway Department and that road could not conform to Town standards now because of the grade. Mr. Pisani said that these people are stuck because they are paying taxes on absolutely gorgeous property. On 80% of these properties, once they are built on, a portion of the property will have a beautiful easterly view of the Hudson River and beyond. He said that anyone who builds there, in his opinion, is going to have to build a house for close to a million dollars in order to justify the expenses and so it will be a tremendous addition to the tax rolls in this community and it will be a private road that the community will not have to maintain.

Mr. Guido asked Mr. Murphy how he bought that property knowing that there was not a road to it. Mr. Murphy said he consulted his lawyer who said there may be a chance. Mr. Pisani said that Mr. Seff bought the property a couple of years ago and he just bought it because it’s a beautiful piece of property and he was hoping that somewhere down the line something would happen. Mr. Pisani said that this is the only practical solution as far as he is concerned to develop this. Mr. Cole said that the Building Inspector agrees with Mr. Pisani.

Mr. Guido asked if there was anyone from the public present. Deborah Sofer said that she is not in any of the lots. She has a house to the right. Mr. Pisani explained where her house is located and stated that she does access it over Timberline Trail. Ms. Sofer asked if anyone owns more than one lot. Mr. Pisani said that Mr. Murphy does. Ms. Charuk stated that it looks like the Coppolas also own more than one lot and Mr. Pisani pointed out several lots that the Coppola family own.

Mr. Hare asked Ms. Sofer if she agrees with the road maintenance agreement. She said that she has concerns about it. She has been maintaining that first section of the road for all these years and she is afraid that she might be included in the agreement somehow where she might be giving more than she is actually using or something like that. Mr. Pisani told her that she could get a separate agreement. Mr. Pisani said that he told her that since she’s not part of the development and owns property to the rear that he would negotiate with her lawyer and his clients to make an agreement that is amenable to all parties since they have been maintaining part of the road for all these years along with the Fonfa house.

Mr. Cole asked who allowed this to go on with all these people paying taxes on property they cannot use. Mr. Guido said that what happened was that they never filed bonds when this originally went through. Mr. Pisani said that the developer never followed through and the landowners never got together until now. He said that it would not happen now because the Planning Board insists on bonds.

There were no further questions. Mr. Pisani asked if a decision will be made at the next meeting and Mr. Cole advised that hopefully it will.

BLUE STONE REALTY Case # 10-12-06-02

Mr. Guido asked if a vote was going to be taken. Mr. Cole asked how the Board could vote if the applicant wasn’t here to present the information that was asked for at the last meeting. Mr. Guido said that he would rather have the applicant present and Mr. Hare agreed. JOE GUIDO MADE A MOTION TO VOTE NEXT MONTH SINCE THE APPLICANT WAS NOT PRESENT. VIC BARRANCA SECONDED. ALL PRESENT VOTED IN FAVOR.

INFORMATIONAL MEETING

No cases.

OTHER BUSINESS

Mr. Cole announced that Richard Wenzel resigned from the Board.

Vic Barranca said that he has a concern. He tried to enroll in the four hour class that is required for Board members but the class was full. He said that he would like to stay on the Board but he would like to learn a little more about what he should be doing and he would like the opportunity to attend the class. He asked if Mr. Cole knew if another class was being offered. Mr. Guido said that he got closed out of the class also. Mr. Cole said that he believes there is another one in June and he will make sure that everyone gets in on it. He will make sure Diane (McCord) takes care of it.

JOE GUIDO MADE A MOTION TO ADJOURN. ROB HARE SECONDED. ALL PRESENT VOTED IN FAVOR. Meeting adjourned 8:40 p.m.

Respectfully submitted,

Kathleen Kiernan
Secretary