Town of Otsego Zoning Board of Appeals

Minutes - March 15, 2005

The monthly Town of Otsego Zoning Board of Appeals (ZBA) meeting was held on this date (no meeting was held in February, 2005, as there were no agenda items). Chairman Anthony Scalici called the public hearings to order at 7:36 PM. He explained that the purpose of such hearings was to get input from the public.

PUBLIC HEARING

Application #05.02 - Bill & Eileen Bowers - Interpretation of 2004 Land Use permit issued to Mark LaValley, 515 Keating Road (#82.00-2-2.07)

Applicants Bill and Eileen Bowers question a Land Use permit which was issued by former Zoning Enforcement Officer Jane Berry to their neighbor, Mark LaValley, on November 30, 2004. LaValley plans to build a large pole building for personal storage on his vacant lot on Keating Road.

Butch Weir of Keating Road spoke about the proposed project. Weir said he grew up in the area, and was surprised that anyone would build so close to Oaks Creek. He is concerned that the barn could be flooded when the creek is high.

Les Sittler, describing himself as a neighbor, also spoke. Sittler pointed out that there may be a timing issue with Bill Bowers's application (since it was filed more than 62 days after the permit was issued), but that if it were rejected on those grounds, Bowers could issue a complaint after the fact and have to go through the ZBA process anyway. He echoed Butch Weir's concerns about flooding, and also questioned whether there is enough land (at least three acres) to build in the Town of Otsego portion of the lot. Sittler also noted that the lot is in the residential/agricultural-2 (RA-2) district, and that the proposed building does not seem to qualify under either permitted use. Finally, he cited violations of Department of Environmental Conservation (DEC) and Army Corps regulations, in that the Land Use permit was issued before those organizations' rules were satisfied. Sittler asked the ZBA to consider the merits of the application even if it is deemed not timely.

Bill Bowers read aloud three letters he said were from neighbors who asked him to speak on their behalves. In the letters, William and Evelyn Keating expressed their concerns about flooding; Dave Huber stated his opposition to the proposed building and his belief that it violates various sections of the Land Use Law; and Max Lewis also stated his strong opposition to the project and his belief that the permit was granted in violation of various cited sections of the Land Use Law, and noted that LaValley had started building before the required permits were issued.

Application #05.03 - K. Wayne Bunn - Area variance, replacement of camp within 500 feet of Otsego Lake, 6739 State Highway 80 (#69.68-1-5.00)

Chairman Scalici asked whether anyone was present to speak about this project, but no one responded. Scalici said that he would leave the hearings open, and proceeded to the regular meeting.

REGULAR MEETING

Chairman Scalici called the regular meeting to order at 7:51 PM. Board members present were Scalici, Jim Ferrari and Joe Potrikus. Absent were Greg Crowell (vice-chairman) and Sam Hoskins. Also present were new Zoning Enforcement Officer Sal Furnari and ZBA Secretary Bill Deane.

Scalici asked for a motion to approve the minutes of January 18 as mailed to the members. After an aborted attempt to do so, both Jim Ferrari and Joe Potrikus pointed out that they hadn't been at the January meeting, thus weren't in position to approve the minutes. Ferrari moved to table the January 18 minutes until the next meeting. Potrikus seconded the motion and it was approved, 3-0.

Sal Furnari introduced Michael Feinman, an applicant not on the agenda. Chairman Scalici explained the application process to Feinman, and said he would be added to the April agenda.

Chairman Scalici reported no correspondence of note.

At 7:56, Jim Ferrari moved to close the public hearings. Joe Potrikus seconded the motion and it was approved, 3-0. The Board then moved on to applications. Chairman Scalici asked Bill Bowers if he had any objection to Wayne Bunn's application being addressed first; Bowers said he did not.

APPLICATIONS

Application #05.03 - K. Wayne Bunn - Area variance, replacement of camp within 500 feet of Otsego Lake, 6739 State Highway 80 (#69.68-1-5.00)

Chairman Scalici questioned whether applicant Wayne Bunn even needed to come before the ZBA. Bunn described his proposed project regarding an existing camp located on State Highway 80. He had received a building permit to add a second floor and new foundation to the camp in 2003 but, due to problems with contractors, he never acted on it and it expired. He now plans to replace the entire 800-square-foot camp within the existing footprint, but relocated about 2½ feet closer to the center of the lot. Bunn displayed detailed architectural drawings and photos, and answered questions. Because the lot is less than three acres, and there is insufficient road frontage (minimum 150 feet) or side-yard setbacks (minimum 30 feet), Jane Berry had advised Bunn to apply to the ZBA for variances. He just wants to do things right.

Jim Ferrari noted that the project seems to qualify as an "in-kind replacement," per section 4.04 on page 19 of the Land Use Law. Chairman Scalici said that, in view of the slight relocation of the building, the ZBA didn't want to set a precedent by not ruling on the application.

Jim Ferrari moved to approve area variances of 25 feet on the north side and five feet on the south side, citing that no undesirable change will be produced in the character of the neighborhood; the benefit sought cannot be achieved by any other feasible method; the variance sought is actually less substantial than that of the original building; it will not have an adverse impact on the physical or environmental conditions in the neighborhood; and the difficulty is not self-created. Joe Potrikus seconded the motion and it was approved, 3-0.

Application #05.02 - Bill & Eileen Bowers - Interpretation of 2004 Land Use permit issued to Mark LaValley, 515 Keating Road (#82.00-2-2.07)

Applicant Bill Bowers first stated that, of the 5.89 acres in Mark LaValley's lot, it appears that half is on the other side of Oaks Creek in the Town of Exeter; thus, he questioned whether there are the three acres in the Town of Otsego necessary to build on this side. LaValley responded that all 5.89 acres are in the Town of Otsego, as far as he knows. Bill Deane checked the Town of Otsego Tax Roll and confirmed that.

Bowers reiterated the flooding issue. Chairman Scalici said that he had consulted the flood plain and wetland maps at the County Office, but found that they are not well synchronized with the tax maps, so the status of LaValley's lot is indeterminate. According to the Planning Office, the only way to resolve it would be to survey the land in the context of flood plain and wetlands issues.

Chairman Scalici noted that the Land Use permit was issued on November 30, 2004, but there is nothing on the permit form about permitted uses. He also expressed confusion about the timetable of events.

LaValley said he completed a wetland delineation application with the DEC on November 29. He was told by Martha Wood that a DEC biologist would inspect the site. LaValley next called the Army Corps of Engineers. The next day he got his Land Use permit from Jane Berry. On December 2, LaValley went to the Otsego County Codes Office and turned in his blueprints. He called afterward, asking if there were any problems and whether he could begin site work; he was told that that should be no problem, as long as he didn't start actual construction. LaValley's excavator began working on December 7, three days before he actually received the building permit. LaValley said there was no malicious intent.

At this point, a neighbor called the DEC, asking whether LaValley had a wetlands permit. The DEC asked LaValley to stop construction until biologist Bill Sherrick marked the wetland. Because he had started excavation before having the permit in place, LaValley was issued an appearance ticket by the DEC, but it was dismissed in Town of Otsego Court. A subsequent letter from the Army Corps of Engineers indicated that they had no issue with the building site. Meanwhile, a stop-work order has been issued by the County Codes Office and the DEC.

Chairman Scalici wondered whether an application for site plan review should have been filed with the Planning Board. Bowers reiterated that the property is in the RA-2 district. Since LaValley won't live there, and will not farm there, the proposed building was neither residential nor agricultural. The Board referred to the definitions of agricultural use on page 44 of the Land Use Law. Bowers believes that Jane Berry was mistaken in issuing the Land Use permit. Scalici also questions the permit, saying that it may not be a legal document.

Sal Furnari asked Bowers hypothetical questions about the issuance of a permit. Chairman Scalici advised him that this was not the forum for such questions.

Jim McNulty of 551 Keating Road, Bowers's father-in-law, asked questions about the variance process. Chairman Scalici explained that it is the ZBA's role to issue variances, which override the Land Use Law, when warranted. He said that public opinion is not the driving force in such decisions, but that sometimes compromise solutions are reached when there is dissension from the public.

LaValley pointed out that he had applied for and was granted a permit in good faith, and he has spent thousands of dollars and hundreds of hours so far. He has never met these neighbors until tonight. He said that he wanted to know what their problem with the proposed building is - did they want a different size, shape, or color, or no building at all? He also noted that it seems his permit is being challenged under Land Use Law, section 9.01. However, section 9.02 specifies that an application for interpretation should be filed within 62 days of the permit's issuance. The application was filed on February 10, 2005, or 72 days after the permit was issued; therefore, LaValley challenges that it should even be before the ZBA.

Les Sittler said that he agrees with LaValley on that point, but that dismissing the application on those grounds wouldn't solve the issue: Bowers could challenge the building by filing a complaint with the Zoning Enforcement Officer after the fact. Sittler also said that he believes the use of the building will be commercial - used for storing LaValley's business assets - in violation of the RA-2 district permitted uses. Bowers agreed with this.

LaValley said that he explained to Jane Berry exactly what he intended to use the building for: storage of vehicles, including a boat, trailer, and car, and of equipment for his sound system business, of which he is sole proprietor. Berry then wrote "For personal storage only" on the application.

LaValley showed pictures of the proposed building. He said that he sought to put up a structure that had the lowest impact on the neighborhood.

Joe Potrikus repeated LaValley's question of what exactly the neighbors' problems are, and said that flooding should be LaValley's concern, not the neighbors'. Les Sittler replied that he thinks the neighbors just want to know more about the project and be included in the process; if LaValley had gone through the Planning Board process, there would be less misunderstanding.

Chairman Scalici laid out the possible results of this application. The ZBA could rule in favor of Bowers, whereupon LaValley could challenge the Town legally because Bowers' application was filed more than 62 days after the permit was issued. The ZBA could rule against Bowers, or dismiss his application, whereupon Bowers could pursue his next step, filing a complaint after the fact. Finally, if LaValley chose to go through the Planning Board process, as long as his building conformed to the regulations of the Land Use Law, the Army Corps, and the DEC, the personal opinions of his neighbors could not override the decision. LaValley volunteered to go through the Planning Board process, as he ultimately wants to be a good neighbor. Les Sittler suggested that, in light of LaValley's agreement to this process, giving the neighbors a chance to get to know him and his project better, perhaps Bowers would agree to withdraw his application for an interpretation.

Chairman Scalici advised Bowers that it was his decision whether to force a decision on his application, or to withdraw it in light of tonight's discussion. Bowers said that he withdraws his application, subject to LaValley going through the Planning Board application process. Scalici said that the application would be considered withdrawn at the time LaValley submits paperwork for a special use permit.

Bowers closed by saying that he didn't think the Zoning Enforcement Officer had considered all the issues in issuing this permit. ZBA members expressed agreement with this.

OTHER BUSINESS

Chairman Scalici and Bill Deane told the members about a special meeting to be held at the Town Building on March 24 at 7 PM. George Casey and other representatives of the Army Corps of Engineers will be doing a fancy presentation for the benefit of the Town Board, Planning Board, and ZBA.

With no further business, at 9:20 PM the meeting was adjourned by acclamation.

Respectfully submitted,

Bill Deane, Secretary