TOWN OF NORTH HARMONY
ZONING BOARD OF APPEALS
WEDNESDAY, 2/26/2020 7:00 PM
ZBA MEMBERS PRESENT: JIM LEVESQUE DAN THOMAS
GREG MICHALAK HELEN EMICK
WILL ORTMAN ROGER VAILLANCOURT
Brad Lawson, Zoning C.E.O.
Attorney Dale Robbins & Kelly Johnson
Others Present: Robert Yates Neil Robinson
Jonathan Henck Richard Benedetto
Mr. Levesque opened the hearing at 7:00 PM. Mr. Robbins swore in all who expressed intent to speak regarding the application.
On a motion made by Mr. Levesque, seconded by Mr. Thomas and none being opposed, the minutes of the 12/18/2019 hearing were unanimously adopted.
- John & Wendy Johnson requesting an Area Variance to install a temporary septic holding tank on a non-conforming lot located in the R-1 District at 3486 Mason St., Ashville, NY, Specifically Sec. 332.20-1-40.
Attorney Neil Robinson appeared to represent Mr. and Mrs. Johnson who are presently in Florida. He said Mr. Benedetto accompanied him as their real estate agent representing them in the sale of their home on Mason Street. He said the house is located on a separate lot from the 30’x40’ (lot is approx. 60’ wide and 145’ deep) storage/recreation room building located across the road (ref. ZBA minutes 12/18/19). He said the Johnson’s were denied a use variance at the previous meeting because habitable space (kitchen and bathrooms) were created in the building without a permit. He said what the Johnson’s are currently asking is an area variance as stated above. Mr. Robinson stated that the original building collapsed under a snow load the first year the Johnsons owned the property and they received a demolition permit and a building permit to rebuild the storage building/recreation room in the footprint of the original. He said the original building was a boat repair business and apparently had 2 bathrooms; it was assumed that they were grandfathered and the contractor discovered during construction when the bathrooms were installed there was no septic, so they hooked into the septic at the cottage. He said when the property went up for sale the County DOH came for inspection and indicated that you cannot have 2 buildings going into one septic system. He said the Johnson’s had cooking facilities on the second floor of the building which changes the classification under North Harmony zoning to a dwelling unit. He said he had spoken to Mr. Lawson and his clients would like to get the bathrooms in a position where they are not in violation of the County Code. He said the County advised his client that since work is in progress to extend sewer to the Westside of Chautauqua Lake they have no objection to the installation of a holding tank for that purpose until the project is complete at which time the house and storage building will both be required to hook up. This holding tank requires permitting from the town before the County will permit. Mr. Robinson said his client has stated that they will agree to remove the kitchen facilities and turn the bunk beds located there to seating facilities. He said the variance to install the holding tank is not substantial and should not be a detriment to the neighborhood.
Mr. Levesque asked if the intent is to market the property, with the available bathrooms, as an occupiable building. Mr. Robinson said the realtor would certainly instruct any buyer that it is not a dwelling unit nor should it be used as such. He said he knows of nothing in this or any zoning law that says you can’t sell a building that could be occupied. He said all they are asking for is the holding tank for the sewage and they can make no promises to the board what some future buyer may or may not do with or without a tank. He said the future extension of sewer to that area will require that both structures (house and storage building) be separately hooked in. Mr. Robinson said with the kitchen and sleeping space removed what exists there now is perfectly legal in North Harmony. He indicated that the original building had 2 bathrooms grandfathered. Mr. Ortman said they were not included in the building permit requested by the Johnson’s. Mr. Robinson said they were certainly available for inspection during the building process and it is his understanding that a building requires 4 inspections during construction. Mrs. Emick asked why 2 bathrooms are necessary if it is just a garage. Mr. Robinson said that is because it is what the owners wanted. Mr. Lawson said he does not recall any bathrooms (especially upstairs) during his inspections and they were not present in the drawings.
Mr. Benedetto said during the initial listing of the property the building was advertised as additional living space. He said in future it will be clarified that it is storage/recreation space and cannot be used as living or rental space. Mr. Robinson said the Zoning Law says it becomes a dwelling if there are provisions for cooking. He said his client has agreed to remove the stove, refrigerator and microwave. Mr. Vaillancourt asked if the bathroom has a shower. Mr. Benedetto said only the upstairs bathroom has a shower. It was emphasized that the cottage and storage building are on separate lots. Mr. Levesque asked if anyone had any questions regarding the application.
The Board reviewed SECTION 904 – Use and Area Variances; C. Area Variances – 2. Questions a) thru e) with the following responses by the board: a) no b) yes c) yes d) no e) yes. There was further general discussion regarding the holding tank. Mr. Lawson noted that the Planning Board is currently working on a law regarding Transient Property Rentals in the town which would require any such rentals to be permitted so that should be helpful in policing this type of structure ongoing.
Mr. Levesque motioned to grant an Area Variance to John & Wendy Johnson to install a temporary septic holding tank on a non-conforming lot located in the R-1 District at 3486 Mason St., Ashville, NY, Specifically Sec. 332.20-1-40 as outlined in these minutes and with the following conditions:
- Holding tank is compliant with all Chautauqua County Health Department and South and Center Chautauqua Lake Sewer District regulations.
- Structure will be hooked up to Westside Chautauqua Lake sewer extension as soon as it becomes available.
- Structure will remain as storage/recreation room with no habitable space created.
Mr. Michalak seconded, and the motion was carried unanimously.
On a motion made by Mr. Levesque, seconded by Mr. Thomas and none being opposed, the hearing was adjourned at 7:45 PM.