TOWN OF NORTH HARMONY
ZONING BOARD OF APPEALS HEARING
WED., 12/18/2019 7:00 PM
ZBA MEMBERS PRESENT: JIM LEVESQUE ROGER VAILLANCOURT
GREG MICHALAK HELEN EMICK
DAN THOMAS WILL ORTMAN
Brad Lawson, Zoning C.E.O.
Dave Stapleton, Attorney
Others Present: John Johnson Richard Benedetto Jeff Hess
James Kanouff Jonathan Henck
Mr. Levesque opened the hearing at 7:15 PM. Mr. Stapleton swore in all who expressed intent to speak at the hearing.
Mr. Levesque motioned to adopt the minutes of the 10/2019 ZBA Hearing as submitted by the clerk. Mr. Thomas seconded, and the motion was carried unanimously.
John & Wendy Johnson requesting a Use Variance for the creation of habitable space on a non-conforming lot located in the R-1 District at 3486 Mason St., Ashville, NY, Specifically Sec. 332.20-1-40.
Mr. Johnson said they had purchased the property in question 9 ½ years ago and the following year the 30’x40’ building across the road had collapsed under a snow load. He said they had hired a contractor to construct a new building in the same footprint. He said the existing building had 2 bathrooms; 2 sinks; well; electric; and a furnace. He said he knew the contractor had obtained a permit for the building from the town. He said during the construction it was discovered that there was no septic system for the building, so they had connected the building facilities to their existing cottage septic across the road. He said there had been no issues with this system in the years they have used it. He said at this time they would like to sell their property but when the county inspected their septic system, they had been advised that you cannot have the two dwellings hooked into the same septic system. He said he would like to request permission to place a holding tank with an alarm system at the building until the west side sewer project is completed and they can hook up to it. It was noted that the property is on 2 parcels but on one deed.
Mr. Levesque asked if the building is currently occupied. Mr. Johnson said no, and it is never rented. Mr. Thomas noted that although the applicant completed the Special Use Permit form, the actual request is for a Use Variance. Mr. Lawson said it should have been the Use Variance and gave the following information: 1) the lot is non-conforming 2) a non-conforming structure was created (habitable space) 3) there is septic from the house to structure. Mr. Michalak said at the time the application was filed to rebuild the garage the request was for storage barn and recreation room with no mention of habitable space. Mr. Johnson said his contractor had filed the permit and he had been unaware that he needed an occupancy permit to replace the bathrooms. Mr. Johnson said he believes the building was previously a boat repair shop.
Mr. Levesque read into the record a letter from the Chautauqua Co. Health Department dated 11/21/19 regarding the Johnson request for a temporary septic holding tank which gave a list of 5 conditions that Mr. Johnson must meet prior to the DOH considering that request. Mr. Levesque asked if anyone wished to speak regarding the application.
James Kanouff of Lakeside Campground noted that the current building seems to be taller than the previous building. Mr. Johnson said the building is 18’ tall. Jonathan Henck a resident of Ross St. asked for clarification on zoning law regarding the sale of the property and asked if the use going forward would be the same as it is currently. Mr. Benedetto said it would be the same.
Mr. Lawson gave background on the issue. He said in 2011 he had given Mr. Johnson a demolition permit for the garage that collapsed and in 2011 he also gave a permit to build a structure on the same footprint (although a little taller) for a garage; storage; recreation room. He said he was unaware that previously there were toilets, etc. in the building. He said as he looks at it now, it is habitable space (bathroom; kitchenette; living room; sleeping quarters upstairs). He said the DOH got involved when they inspected the septic during the sale process and subsequently contacted him to see if this was something that had been approved by the C.E.O. Mr. Lawson reiterated that the habitable space on a non-conforming lot is a non-conforming use and thus the request for the Use Variance. Mr. Benedetto said the buyer would like to have the continued use of the building for guest overflow. Jeff Hess a resident of Ross St. said his concern is that the property might be rented out and create more congestion.
Mr. Levesque read into the record Article XI, Zoning Board of Appeals; Section 904 Use and Area Variances; D. Use Variances; items 1.,2., 3. a.- d.
D. Use Variances –
- The Zoning Board of Appeals, on appeal from the decision or determination of the administrative officials charged with the enforcement of this law, shall have the power to grant use variances, as defined herein.
- The Zoning Board of Appeals, in the granting of use variances, shall grant the minimum variance that it shall deem necessary and adequate to address the unnecessary hardship proven by the applicant, and at the same time preserve and protect the character of the neighborhood and the health, safety and welfare of the community.
- No use variance shall be granted without a showing by the applicant that applicable zoning regulations and restrictions have caused unnecessary hardship to the applicant. In order to prove unnecessary hardship, the applicant shall demonstrate that for each and every permitted use under this Local Law for the district in which the applicant’s property is located:
a. The applicant cannot realize a reasonable return, provided that lack of return is substantial as demonstrated by competent financial evidence;
b. The alleged hardship relating to the property in question is unique, and does not apply to a substantial portion of the district or neighborhood;
c. The requested use variance, if granted, will not alter the essential character of the neighborhood; and
d. The alleged hardship has not been self-created.
Failure to demonstrate any one of the requirements in Subsections 1(a) through 1(d) above is sufficient to justify the denial of a use variance.
Mr. Stapleton clarified item 3.a. by asking the applicant what has been presented in any written form that is a financial market analysis that complies with the Zoning Law Sec. 904 3.a.? Mr. Levesque said “on paper” this construction was used for a garage and now the applicant is asking for it to be used as habitable space. He asked if the applicant is prepared to show that there is no other use for the property besides the habitable space. Mr. Benedetto said there is really no other use for it and if it reverts back to a storage unit, the seller will take a huge loss. It was also noted that the building also has space to store the owner’s boat.
Mr. Benedetto said there are other homes with the same type of set up in the area. Mr. Stapleton said regarding 3.a. that interpretation of the zoning law by the applicant should be performed by his attorney. Mr. Ortman reviewed allowed uses in the R-1 District. Mrs. Emick said the question is whether the property was sold as 2 houses to Mr. Johnson and was that second habitable space approved by the C.E.O. when the construction occurred. Mr. Levesque continued the review with the following responses being made: D.3.a. No; b. No; c. Yes; d. No.
Mr. Levesque asked if anyone else wished to speak regarding the application.
Mr. Levesque motioned to grant a Use Variance to John & Wendy Johnson for the creation of habitable space on a non-conforming lot located in the R-1 District at 3486 Mason St., Ashville, NY, Specifically Sec. 332.20-1-40. Mr. Michalak seconded. No (6): Levesque, Thomas, Vaillancourt, Emick, Michalak, Ortman. Yes (0). The motion was denied.
On a motion made by Mr. Levesque, seconded by Mr. Vaillancourt, and none being opposed the hearing was adjourned at 8:10 PM.