Town of Otsego Zoning Board of Appeals

Minutes - April 17, 2007

PUBLIC HEARING

06.10 - Gerry Welch - Area variance, erection of 75-foot observation tower - Wedderspoon Hollow Road (#54.00-2-1.02)

Chairman Greg Crowell called the public hearing to order at 7:34 PM, briefly described the proposed project, and asked if anyone from the public had comments about it.

Bill Cusworth (accompanied by his wife, Diane), a neighbor across the road from Welch, asked why the project didn't require a use variance in addition to the area variance. Crowell said that would be discussed during the application portion of the meeting. Cusworth said he was intimidated by the prospect of such a tall structure, holding various activities, overlooking his property, and therefore was against the project. Cusworth said that Welch was already in violation of various codes (unregistered vehicles, campers, and buses on his property), and wondered how he could be granted a special privilege (variance from the Land Use Law) if he was not even obeying existing laws?

Welch disputed Cusworth's claims, but said that he had no intention of building the observation tower if it upsets his neighbors. He verbally withdrew his application. Crowell closed the public hearing.

REGULAR MEETING

The monthly Town of Otsego Zoning Board of Appeals (ZBA) meeting was held on this date (the meeting scheduled for March was postponed, as the only applicant was exploring other options). Chairman Greg Crowell called the meeting to order at 7:42 PM. Roll call was taken by Secretary Bill Deane. All Board members were present: Crowell, Sam Hoskins, Anita Weber, Tony Scalici, and Bill Michaels. Zoning Enforcement Officer Mike Miller was also present.

The Board reviewed the minutes of December 19, 2006, mailed to the members in January. Hoskins moved to approve them as written. Scalici seconded the motion and it was approved, 5-0.

The Board reviewed the minutes of February 20, 2007, mailed to the members in March. Chairman Crowell noted that, on page 2, paragraphs 2 and 3, there were three instances in which applicant Norm Johannesen was erroneously referred to as "Welch." Crowell moved to approve the minutes as amended. Hoskins seconded the motion and it was approved, 4-0, with Michaels abstaining. Michaels said that he didn't feel qualified to vote, since he wasn't at the February meeting, and that he really shouldn't have voted on the December minutes, either, for the same reason. Deane pointed out that there was only one current member of the Board who was at the December meeting, and by that logic the December minutes could never have been approved. He said that the minutes are mailed to all the members, and the tapes of the meetings are available at the Town building for members to review if they choose.

Chairman Crowell reviewed correspondence received since the last meeting. It consisted only of a flier about a seminar, "Economic Development Incentives in New York," to be held in Syracuse on June 15; and the Winter 2007 issue of the New York Planning Federation's Planning News. The flier was passed around and copies of the magazine were distributed to the members.

The Board moved on to applications.

APPLICATIONS

06.10 - Gerry Welch - Area variance, erection of 75-foot observation tower - Wedderspoon Hollow Road (#54.00-2-1.02)

As previously mentioned, applicant Gerry Welch withdrew his application.

07.02 - Thomas & Kathy Chase - Use variance, addition of third rental unit - 250 Red House Hill Road (#69.52-1-1.00)

Applicant Kathy Chase described her plan to add a third rental unit, with a separate entrance, to a building which is currently used for two other rental units. Zoning Enforcement Officer Miller said that, the way the application was presented to him, it appeared that a use variance was necessary.

Tony Scalici referred to the definition of "dwelling unit" on page 46 of the Land Use Law. He said that Chase was not creating such a unit, since there was no kitchen, and thus that there was no basis to apply for a use variance. Bill Michaels said that she would need only to apply for a special permitted use (bed&breakfast) through the Planning Board. After discussion, no one objected to Scalici's interpretation.

Chase verbally withdrew her ZBA application.

07.03 - Lawrence & Jane Pelofsky (Martin Tillapaugh) - Area variance, relief from side-yard set-back - 396 Huff Road (#84.00-1-1.32)

Attorney Martin Tillapaugh, accompanied by applicant Larry Pelofsky, passed out packets relevant to the application. They included copies of the original building permit and certificate of occupancy for a barn built in 1998. Tillapaugh explained that the barn was built more than 30 feet (the side-yard setback requirement) from what Pelofsky thought was the northern boundary line, but a subsequent survey shows that it is actually only 22 feet from the line. Though the northern neighbor is not complaining, this issue is holding up a pending sale of the property. Tillapaugh submitted a check for $25 (delivered to the Town Clerk) in payment for the ZBA application fee.

The Board and Zoning Enforcement Officer discussed whether this should be treated as an interpretation rather than an area variance, since the building has been standing for nearly a decade, it was built with the blessing of zoning officials at the time, and no complaint had been filed. They could find nothing in the Land Use Law which seemed to fit either option. Tillapaugh said that it was common practice in his experience for a ZBA to grant a variance after the fact, and said he would bring documented examples to the next meeting, and, in his role as Town Attorney, talk to the Town Board about re-wording the Land Use Law accordingly. The Board agreed by consensus to continue this as an area variance application.

Tony Scalici moved to deem the application complete and schedule a public hearing for May 15. Sam Hoskins seconded the motion and it was approved, 5-0.

07.04 - NYSHA (Kurt Ofer) - Area variance, Native American fishing camp access path within 100 feet of Otsego Lake - State Highway 80 (#115.00-1-4.00)

This application was added to the agenda by permission of Chairman Crowell. NYSHA wants to put in an access path to their Native American fishing camp, located within 100 feet of Otsego Lake. Kurt Ofer displayed the site plan on an easel, and described his appearance before the Planning Board on April 10. The Planning Board advised him that he would need an area variance due to construction (raised walkway) within the lakeshore protection area. Zoning Enforcement Officer Miller noted that he had not rejected the site plan application nor directed NYSHA to the ZBA.

The ZBA discussed whether an area variance was really necessary. Members agreed that the path is not a structure, and Sam Hoskins pointed out that it was essentially a replacement-in-kind of the existing grass walkway, offering equal or better groundwater permeation. Zoning Enforcement Officer Miller noted Land Use Law 1.04 on page 4, stating that "If there is any doubt as to whether or not this paragraph applies to a specific project, the Zoning Board of Appeals shall determine applicability." The Board discussed whether a public hearing should be held before they issued a decision, but the consensus was that it was not necessary.

After discussion, Tony Scalici moved that, based on the information before the Board, the work in question does not constitute construction, that the path is not a structure or a raised walkway, and that it meets permeability guidelines, hence there is no need for an area variance. Sam Hoskins seconded the motion and it was approved, 5-0. Chairman Crowell advised Bill Deane that the minutes would be sufficient to document the decision.

OTHER BUSINESS

Chairman Crowell discussed training required for the members each year, and training opportunities available to the members via the Internet. Bill Deane had e-mailed the members with a link to the web-site for these, and Crowell said he could act as moderator for the other members. Tony Scalici asked whether the Town could print out the training tutorials from this web-site. Deane said he would ask the Town Clerk about this.

Bill Michaels asked whether the ZBA's monthly meeting time could be changed from 7:30 to 7:00 PM. The consensus of the Board was that this was a good idea. Bill Deane said he would advertise the schedule change.

The Board discussed appointing a ZBA Vice-Chairman for 2007. Bill Michaels moved to reappoint Tony Scalici, if he was willing to serve, and Scalici said he was. Sam Hoskins seconded the motion and it was approved, 5-0.

Bill Deane asked about the add-on to tonight's agenda, reminding the Board that they had previously instructed him to finalize the monthly agenda two weeks before the meeting. After discussion, it was the consensus of the Board to give the Chairman authority to add applicants to the agenda under rare circumstances.

The Board discussed a discrepancy in the Land Use Law. Section 4.04 on page 19 states that "no structure shall be newly erected within one hundred to five hundred (100-500) feet of the shoreline of Otsego or Canadarago Lakes." The words "without site plan review" were inadvertently dropped from the end of that sentence, as shown in the September 14, 2005 amendment on page 52.

With no further business, at 9:49 Hoskins moved to adjourn the meeting.

Respectfully submitted,

Bill Deane, Secretary