TOWN OF NORTH HARMONY
ZONING BOARD OF APPEALS
WEDNESDAY, 7/27/2022, 7:00 PM
ZONING BOARD MEMBERS PRESENT: JIM LEVESQUE ROGER VAILLANCOURT
WILL ORTMAN GREG MICHALAK
HELEN EMICK DAN THOMAS
Brad Lawson, Zoning C.E.O.
Dale Robbins, Attorney
Others Present: Robert Yates, Louise Ortman, Steve Senske, Dick Sena, Mike Pfeil; Town Council; Dan Spitzer, Hodgson Russ (representing Drexeler LLC); Kevin Walsh, President Drexeler LLC; Jeremiah Johnson & Tim Mitchell, Last Peace Construction; Jeff Link, Jeff Stallman; AnnaMarie Damore-Bialkowski; Sharon Jaske; Keri Belovarac; Cathryn Johnson; Jim Mergenhagen; Sheri Stahl; Greg Huber; Stacey Hackenberg; Doug & Patrick Wells; Dennis Hagg; Robin Miller; Clayton Emick; Deborah Levesque
Mr. Levesque opened the hearing at 7:00 PM. Attorney Robbins swore in all who intend to speak regarding the applications before the board.
Mr. Levesque stated that the second application to be heard from Drexeler, LLC is a re-hear from the 5/25/22 meeting at which there were some inconsistences in how things were reported in the newspaper legal; specifically, lots 10 & 11. He said there were inconsistences in residents who showed up and did not show up for the meeting, and statements were made that there is a possibility that not everyone received their notice of hearing. He said the board came to a decision at the 6/22/22 meeting to re-hear the case in fairness to applicants and residents.
Mrs. Emick motioned to adopt the minutes of the 6/22/22 ZBA Hearing as presented by the Clerk. Mr. Michalak seconded. Yes (6): Levesque, Michalak, Thomas, Ortman, Emick, Vaillancourt. The motion was carried.
- Cathryn Johnson requesting an Area Variance to construct an addition closer to side setbacks than allowed in the R-1 District according to Zoning Code 403 located at 3214 Chautauqua Ave., specifically Section 349.20-1-30.
Keri Belovarac, Architect appeared to represent Mrs. Johnson. She said the Johnsons would like to add a small 10’x20’ addition and covered porch that is in line with the existing home setbacks. She said a previous variance had been granted a few years back on the SE side. She said there is a letter attached to the application from the neighbors Venezie’s stating no issue with the addition. Ms. Belovarac said the addition would be 8.2” from the NW side setback and 9.3” on the SE side setback. She said there will be no further encroachment than already exists and lot coverage is within acceptable regulations at 14%. Mrs. Johnson said she had signed and notarized the application. Mr. Levesque asked if anyone wished to speak regarding the application. Mr. Levesque read into the record Zoning Code Sec. 904 Use and Area Variances C.2. a)-e) and the following responses were recorded: a) No (6); b) No (6); c) No (6); d) No (6); e) Yes (6).
Mr. Levesque motioned to grant an Area Variance to construct an addition closer to side setbacks than allowed in the R-1 District according to Zoning Code 403 and located at 3214 Chautauqua Ave., specifically Sec. 349.20-1-30 as outlined in the application and these minutes. Yes (6): Levesque, Michalak, Thomas, Ortman, Emick, Vaillancourt. No (0). The motion was carried.
Drexeler LLC requesting an Area Variance to build a 1,344 sq. ft. home on a lot that is less than 1 acre; less than 50’ from the 1310 high water mark; and closer to side setbacks than allowed according to Zoning Code 403 located at 5520 Wells Bay Rd., specifically Section 332.11-1-10.
Attorney Daniel Spitzer, Hodgson Russ, appeared to represent Drexeler LLC. He said they believe that any confusion about the lots was cleared up by the board as indicated in the 5/25/22 minutes. He said there were no objections at the meeting and the statute of limitations to file an action is 30 days. He said they don’t believe the hearing is about anything except to rehear the issue. He said Contractors Mr. Johnson and Mr. Mitchell will give the same presentation they gave at their last hearing; answer any questions and that they look to the ZBA for the procedure tonight after their presentation. He said they have provided additional information with the resubmitted application including a significant amount of information over and above what the law requires.
Mr. Levesque said the board appreciates the work that has been done in this research.
Mr. Mitchell said they are here regarding 5520 Wells Bay Rd. Mr. Levesque asked if that is a new address. Mr. Mitchell said yes, it was 5518 Wells Bay Rd. previously for lot 11 and lot 10. He said they needed the new address to get electric hooked up. Mr. Levesque asked when the new address had been filed for. Mr. Mitchell said on 6/7/22. He said they are here requesting the following variances: for the 1310’ setback from the highwater mark at 46’ (50’ is required); east side setback will be 11’ (20’ is required); west side setback will be 11.1 ¾’ (20’ is required). Mr. Levesque asked if Lot #10 has a septic system. Mr. Mitchell said both homes will share a septic system. Mr. Spitzer said the Chautauqua Co. Health Dept. (CCHD) rules allow this and that was not a reason for rejection of the application. Mr. Levesque said what he has is a new application. Mr. Spitzer respectfully disagreed and said he could have the documents approving the shared septic sent to the board. Mr. Levesque said at the June meeting when he spoke regarding a clean, clear or new application, his intent was to have a clean (un-crisscrossed, scribbled out) application. He said somewhere in the process it has become a new application. He said they are not trying to pretend this history does not exist with the application but are trying to clarify the information so that they are able to understand it and vote on it correctly. Mr. Robbins asked which lot the septic is on. Mr. Mitchell said the septic is on lot #10 and will be shared with lot #11. Mr. Spitzer said sharing a septic is not unusual. Mr. Walsh said he would supply the septic permit to the Town Clerk. Mr. Spitzer asked if the board wished to have a presentation by Mr. Mitchell. Mr. Levesque asked what specifically has changed on the application. Mr. Mitchell said just the SBL#.
Mr. Levesque asked if anyone wished to speak regarding the application.
- AnnaMarie Damore-Bialkowski – 5525 Wells Bay Rd.
Mrs. Damore-Bialkowski said she has a statement to read to the board on behalf of she and her husband. She said she also has a letter to read from a neighbor who was unable to attend. She said she had observed as the septic was going in and that it was to accommodate 7 bedrooms according to the application (4 in one home and 3 in the other). She asked how having a joint septic for 2 homes would affect the ability to sell one. Mr. Spitzer said both homes are responsible for the septic to the county and state and must not allow anything to enter the lake. Mr. Spitzer said that would be a part of the deed. He said a condition can be placed on the variance to that effect.
Mrs. Damore-Bialkowski thanked them for the response as the septic was a concern of theirs when they had been told by the builders that the original septic that was there was functioning, but it wasn’t, and waste was going into the lake. She said as a result the builders had brought in a portable john. Mr. Levesque asked if it was true the lake was contaminated. She said she called the Chautauqua County Health Dept. and been told that the septic had failed and there should be concern for what was going into the lake.
Mrs. Damore-Bialkowski read her statement for the board which is appended to these minutes as Appendix A.-ZBA 7/27/22 #1.
Mrs. Damore-Bialkowski read a statement for the board from neighbors Craig and Sandra Harris, 5532 Wells Bay Rd., as they were unable to attend. Appended to these minutes as Appendix A.-ZBA 7/27/22 #2.
Mr. Spitzer said the use of the property is not in front of the board; the size of the house is. He said the house is an allowed use. He said if the board wishes to put a condition on the variance that it shall not be used as an AirBnB, that is no problem. He said it is mostly to be used by families. He said the company has a right to use the home and everything read about the use is not in front of the board, it is an area variance.
He said with due respect, the board does not have the authority to say no to an area variance because of concern that a building inspector might not do his job as a Code Enforcer. He said the property has a driveway which is adequate for the home for parking with the number of bedrooms shown for each house; it is not a party house. Mr. Levesque said he is familiar with the area and the current house is not more than 2 ft. off the street. Mr. Mitchell said there is a driveway, and 2 trucks can fit there. Mr. Levesque questioned that 2 vehicles could fit there. Mr. Mitchell said that our Highway Superintendent had come by and thanked them for keeping vehicles off the road. Mrs. Damore-Bialkowski said she has photos which show parking on both sides of the street. She said the construction has been going on for about 1 ½ years and the other day she was unable to get out of her driveway. Mr. Levesque said parking is not the issue before the board. Mr. Spitzer stated that although there are a number of letters and statements stating neighbors do not want a house there, that is not what is in front of the board.
- Doug Wells – Part owner of Lot #9 Wells Bay Rd.
Mr. Wells said his lot is empty and borders Lot #10. He asked to see the plans showing setbacks. There was discussion of the drainage ditch between Lot 9 & 10. He said he has no issue with the setbacks requested. He said none of the lots are one acre there and they are all in the flood zone.
- Jeff and Nancy Link – 5501 Wells Bay Rd.
Mr. Link said he has listened to everything said here and he and his wife have some serious concerns and are thankful for the opportunity to express them. He said they were under the impression that lot #10 was to be used for overflow parking for lot #11. Mr. Link read into the record portions of a letter that are appended to these minutes as Appendix A.-ZBA 7/27/22 #3. It was discussed that the house on lot #11 is about 2’ from the property line of lot #10 and this was allowed because it was built on the footprint of the original structure. Mr. Link asked how the owners would get access to the lake side of the homes for pumping the septic, boat dock, emergency vehicles, etc. He said every other home there has enough distance between to get to the waterfront from the road. He said most other towns require 60’ setback from a lake and septic systems must be on the opposite or roadside of the house from the lake. Mr. Yates clarified that the ditch on lot #10 is maintained by the town for stormwater runoff from the road and hillside and is not a wetland. Mr. Link said to put a house that large on a space that small next to another large house is not logical for the neighborhood. Mr. Spitzer noted that 5516 Wells Bay Rd. is 1,940 sq. ft. and the proposed house is 1,344 sq. ft. with a 244 sq. ft. porch. The house at 5512 Wells Bay Rd. is 1,712 sq. ft.; 5532 Wells Bay Rd. is 1,596 sq. ft. and all are relatively the same size. He also noted that the variance for the lake side is not taken from the shoreline, but from the 1,310 high water mark and it is actually at least 60 ft. from the lake edge.
Sheri Stahl – 5517 Wells Bay Rd.
Ms. Stahl said her home is across the road from the properties in question. She said previously there was only a small single-story home on the lots. She said when she had spoken to Mr. Lawson about construction possibilities at her home, she had been told the biggest issue would be blocking someone’s view. She said the first house is blocking her view of the lake and the second house will eliminate her view. She said she doesn’t understand how this other home which is very large was built on the footprint of a small 2-bedroom single story. She said parking and septic are also concerns. Mr. Spitzer stated that they are in compliance with Health Department rules. Ms. Stahl stated that there has been confusion as to the lot numbers and now this property has an entirely new address, and the former small single-story house has become two lots with 2 large homes. She said her concern is for the use of the property.
Mr. Levesque asked who owned Drexeler, LLC. Mr. Walsh, President of Drexeler LLC gave him the owners name. Mrs. Emick asked for clarification on who had signed the application.
- Jim Mergenhagen – 5535 Wells Bay Rd.
Mr. Mergenhagen stated that for a year there was no porta-john on the construction site and that is not compliant. He said they only put one in after the last meeting and workers have been defecating and urinating during the job. Mr. Mergenhagen said Mr. Walsh stated he had been there every day during construction and that is not true. He said his view is disappearing quickly. He said there have been a number of untruths about this property and asked why this is being allowed.
Mr. Spitzer said the viewshed will be reduced but there is no view shed easement and the view will be reduced whether you grant the variance or not. It is not a valid purpose to deny a variance for that reason on private property. He said with due respect the view shed is not an issue before the board. Mr. Levesque said the board considers the view shed of every single application that comes before the board in consideration of the residents and community.
- Stacey Hackenberg – 5512 (parents) and 5516 Wells Bay Rd.
Ms. Hackenberg said her family have lived there for 42 years and North Harmony has done a wonderful job of protecting the community in the past through its Comprehensive Plan which states the Town will have a rural, small-town character, a clean, healthy, sustainable environment and a friendly neighborly community. She said it is her understanding that the previous application provided an incorrect parcel number and that is why we are here. She said that the Comprehensive Plan indicates the town will control development to retain its peaceful small town feeling and instead has attempted to push through construction of these two large commercial homes without a thought to how that affects the neighborhood. She said there has been cutting of corners, manipulation of codes and damaging of the watershed until neighbors had spoken up. She said instead of their quiet neighborhood they will now be living next to a bed and breakfast enterprise. She said to cram another house next to the already existing house damages the look and feel of the neighborhood and commercializes it. She said RC 1.b. of North Harmony Code promises that home-based businesses will not adversely affect the surrounding neighborhood character. She said 11’ variances on both sides are significant based on the 50’ lot width. She said the square footage of some of these homes have been increased from the footprint due to allowing second stories being added on. She said the most important thing to remember is that the town allowed these by requiring builds on the exact
footprint with the same setbacks. If a structure hasn’t been there in all these years, the town should not allow one now. If the Zoning Board decides to allow an additional home, it should be within allowed existing setbacks without any further variances. She said if the existing house is 2’ from the property line then an 11’ setback on the new home is a remarkable percentage of the distance between those 2 homes. She said if the new build is allowed there is no space to go around the house. She said the town should look to the future and deny the ability to have 2 separate houses on 2 tiny lots to share a septic system even if it was approved by the county. She said this is not what North Harmony is supposed to feel like. She said the ditch needs to be protected because it is the only stormwater runoff for the entire road and a second home could impede that flow. She said Mr. Walsh had told her that his wife wanted to cover up the ditch because it was unattractive. She said they are concerned that enforcement of protections will be overlooked down the road. She addressed parking and said the existing house took the garage footprint and added it to the house as a play- room and there is no parking and no storage. She said if the second house is allowed there should be a deed restriction they have to be sold together. She said they are asking that North Harmony adhere to its Comprehensive Plan and do right by the taxpayers who have resided here for the past 40-60 years.
Ms. Damore-Bialkowski asked about the septic. She said she had seen someone come and pump out the tank and pack the tank. She said that was done within the past couple of weeks. Mr. Mitchell said yes, it was done 2 weeks ago. She said added that people were using the home during Memorial Day weekend and during that time the septic was not working and there was no porta-john. She said she could provide dates of other stays at the home during July when the septic wasn’t working, and she was treated to the sight of men urinating all winter and spring during construction. She said their statement that they were in compliance with sanitation is absolutely not true. Mr. Levesque said the board is not acting on the issue of sanitation, they are just trying to understand the position of the applicant. Mrs. Damore-Bialkowski said what she intended was to bring up the issue as to whether or not people are speaking truthfully about this. Mr. Mitchell said two weeks ago Farnham had been there to pump and cap off the existing system. He said that was for using the showers and not the toilet (that is why they brought in the porta-johns). He said prior to that they had written permission from the county to use that system until the new system was installed. He said they are telling the truth. Mr. Mitchell said later the county called and indicated that after reviewing records they felt the system was not up to code and that’s why the process is ongoing. Mrs. Damore-Bialkowski said she backs up what Mr. Mitchell said, but when she called Mr. Austin, County Sanitarian who had done the inspection, he told her she should be very concerned about what is going into the lake and recommended she call Paul Snyder. She said the implication of the applicant is that all sanitary conditions have been met and that is not true. Mr. Spitzer said if employees were urinating on the property that is not acceptable, and they apologized to the community. He said they are happy to answer any questions about the actual standard. After further discussion, Mr. Spitzer said they would be fine with a board condition that both deeds must take responsibility for the septic system.
Mr. Ortman said we have heard a lot of information on this project on these two lots (#10 & #11) and both are substandard lots by our zoning as it stands today. He said the fact that both lots are owned by one entity and are contiguous is an important fact. He read Zoning Ordinance Article V. General Provisions Sec. 502 – Contiguous Parcels: When two or more parcels of land, each of which lacks adequate area and dimension to qualify for a permitted use under the requirements of the use district in which they are located, are contiguous and are held in one ownership, they shall be used as one lot for such use. He said the town recognizes that these two small adjacent lots, owned by the same person are considered one lot. Since the owner had already put one home on the property over the last year and a half and under the current Zoning you can only have one residence on one property that should be considered one lot and the second structure should be denied. There was further general discussion and Mr. Spitzer disagreed and said they are saying that the one parcel should be transferred to another owner and then come back to the board for the variances. Mr. Levesque disagreed and repeated that when there are two contiguous substandard lots owned by one person the town considers that to be one lot for the construction of a single home, otherwise you have two extremely substandard lots that are unbuildable.
- Greg Huber – 5508 Wells Bay Rd.
Mr. Huber said he has the same style septic system that Drexeler is installing and even if it is redesigned it only has one septic tank and you can’t sell the parcel of land to anyone. Mr. Ortman said what we don’t have is any documentation from the Health Department.
- Jeff Stallman – 3610 Wells Bay Rd.
Mr. Stallman asked if what Mr. Ortman said previously means they can’t build a new home. Mr. Ortman said he stated what the Zoning Law says. Mr. Levesque said we are going beyond what this board is responsible for but some of the questions can be answered with good faith. The septic that is going in is necessary for the house on lot #11. Mr. Levesque said he understood there is currently a Stop Work Order put in place by Code Enforcement for Lot #10, so there should be no building. He said when the board had almost immediately realized the inconsistencies in what was published in the newspaper and what we had thought was the correct information was incorrect, the builders were informed and been very compliant in immediately stopping the work. He said the board had approved it at one point, but the next day realized something was wrong at which time they began a review of the paperwork. Mr. Stallman asked where these two homes would store their boats, skis, trailers, etc.?
Mr. Levesque asked if anyone wished to speak further regarding the application. Several thanked him for the opportunity to be heard.
Also appended to these minutes as Appendix A.-ZBA 7/27/22 #4 is a letter from George and Gloria Bloom, residing at 5545 Wells Bay Rd. received 7/27/22.
Mr. Levesque motioned to table the application of Drexeler LLC requesting an Area Variance to build a 1,344 sq. ft. home on a lot that is less than 1 acre; less than 50’ from the 1310 high water mark; and closer to side setbacks than allowed according to Zoning Code 403 located at 5520 Wells Bay Rd., specifically Section 332.11-1-10, for further review of additional information. Mr. Vaillancourt seconded. Yes (6): Levesque, Michalak, Thomas, Ortman, Emick, Vaillancourt. No (0). The motion was carried.
Mr. Thomas motioned to adjourn the Public Hearing at 8:45 PM. Mr. Levesque seconded.
Yes (6): Levesque, Michalak, Thomas, Ortman, Emick, Vaillancourt. No (0). The motion was carried.