P.O. Box 700
Port Ewen, NY 12466
Zoning Board of Appeals

845-331-8630 Fax 845-331-8634

Minutes of the May 18, 2010 Meeting

Chairman, Don Cole, called the meeting to order at 7:30 p.m.


Present: Vic Barranca, Joe Guido, Rob Hare, Kathy Kiernan, Linda Smythe, Karl Wick, and Chairman, Don Cole

Vic made a motion to approve the minutes of the April 20, 2010 meeting as written. Seconded by Karl. All in favor.

Karl made a motion to approve the voucher for secretarial work. Seconded by Kathy. All in favor.

No new applications

04-20-10-01 Aberdeen on-the-Hudson
1723 Broadway Area Variance

Maria Ferguson was present representing Aberdeen-on-the-Hudson.

Chairman Cole opened the public hearing and asked if there was anyone present who wanted to address the Board. Two neighboring property owners were in attendance: Al Karnath and John Busick. Mr. Karnath asked what the applicant was planning. Chairman Cole replied that applicant was planning to build one house down below the hill to use as her residence. Both neighbors stated that the notification of the public hearing that they received was very vague.
Joe stated that the variance is not for applicant’s house – she can put a house there – the problem is the driveway. Mr. Busick asked where the driveway was going to be and Joe replied right along side the school on the south side. He offered to show the neighbors on a survey. Mr. Karnath asked how far a driveway needs to be from the property line. Kathy replied that she didn’t know, but the variance is for the distance between the school and the lot line. She stated that it is supposed to be 100 feet, and it is only 96 feet.

Mr. Busick stated that his concern is that he is trying to sell property which borders applicant’s property all the way down to the river. He stated that when the original project for the school was approved, there were some issues that were neglected. He had not been able to come to meetings at that time, but he stated that his concerns were noted in the minutes. He brought photos of a drainage issue on his property and explained that if any more ground cover is disturbed, this existing drainage problem will be increased. Chairman Cole asked if Mr. Busick had made a notation of this and Mr. Busick replied that he had and it was put in the minutes in 2008 or 2009. Chairman Cole asked which Board he was referring to, Planning or Zoning Board of Appeals. Karl stated that Mr. Busick might have contacted the Planning Board which would have been the correct venue because the Zoning Board does not consider drainage. Mr. Busick agreed that this probably was the case. Karl stated that he should follow up with the Planning Board.

Chairman Cole mentioned that the Planning Board has sent the ZBA a notice recommending that the variance be approved. Karl stated that they haven’t completed their process. Chairman Cole asked applicant if she was finished with the Planning Board and she stated that she has to show them where the house will be. Rob asked if applicant has had a public hearing on this project with the Planning Board. Applicant did not know and Mr. Karnath stated that it was never announced.

Rob stated that there is presently a road cut which will be used for the new residence. There will not be a new road cut.

Applicant asked to see the photos of Mr. Busick’s drainage issue. Mr. Busick was asked when the photos were taken and he replied, “a month and a half ago.” Applicant asked at what location on his property they were taken and Mr. Busick replied, “the south side of his house.”
Mr. Busick further stated that it is right where another driveway will be coming in which would uproot more ground cover and he has an existing problem with water. He stated that the actual drainage is coming toward his house and this was addressed when the school was being proposed. At this point applicant and Mr. Busick discussed the location and grade of their respective properties, water run-off, catch basin and retention ponds which were part of the approved project for the school. Ms. Ferguson does not think that the school or it’s parking lot are the cause of Mr. Busick’s water problems – she believes the problem was pre-existing.

Mr. Busick noted another concern is the landscaping. The original proposal called for the black top to be taken up and that area seeded. He explained that this would have been helpful with his run-off issue. Another issue of Mr. Busick’s is that car headlights from the school parking lot shine into his home and the trees that were planted are too short to block these lights. Discussion between applicant and Mr. Busick continued on this issue. Mr. Busick further stated that there will be two driveways put in near the area in his photos – one for applicant’s new home and one projected for the new owner of the land Mr. Busick is subdividing from his property. He stated that this water problem could be a deal breaker on the sale of his property.
Chairman Cole asked applicant what kind of a driveway she would be putting in and she replied that she was not planning to put in black top because of the distance down to the proposed house. Chairman Cole stated that stone would allow water to seep through to the ground. Mr. Karnath stated that he has a stone driveway and in a heavy rain, it does not drain well. Karl stated that item 4 is not permeable – crushed stone is. Mr. Busick stated that some of these landscaping projects that were supposed to be completed before approval were not completed and his property, being south of and lower than applicant’s property, has been impacted. Applicant stated that she planted exactly what was called for and approved by the Planning Board.

Mr. Busick stated that when he sells off part of his property, the buyer will need to buy frontage on 9W in order to build. Another driveway will be put in along the property line parallel to applicant’s driveway. Applicant asked if there was any zoning code which addresses the distance between driveways. Chairman Cole replied that he would be discussing this issue with the building inspector.

More discussion about winter thaw, ground covering and drainage followed between applicant and Mr. Busick.

Joe interrupted this discussion and stated that these issues are between the applicant and the neighbors and they should be addressing the Board and not each other. He suggested that they get together and try to work some of these issues out.

Rob asked Mr. Busick for clarification concerning his property for sale. Mr. Busick replied that he is selling off a flag lot from Broadway down to the river. Rob asked if it was being sold to an adjoining neighbor or if Mr. Busick was going to build a house on it. Mr. Busick answered that it will be a subdivision. Rob stated that he will need an access road off Broadway and noted that this would be similar to what Ms. Ferguson is applying for. Mr. Busick agreed, but stated that his property is lower and his will not be creating any run-off. Rob agreed with Karl that this may be more of an issue for the Planning Board – the ZBA deals with little particulars.

Joe stated that the ZBA could put a stipulation in their decision that the Planning Board address this issue and have a public hearing. Karl and Rob agreed. Chairman Cole said that Mr. Busick would have to approach the Planning Board with his concerns.

Linda asked if the run-off came from the parking lot of the school and if the parking lot was higher than the property in the photo. Mr. Busick answered, “some of it.” He said that the parking lot has contributed to the problem; there is no grass there and the property is higher, so the water has no place to go except towards his property. Further, if a driveway goes in and there is no grass or shrubs to absorb water, more of it will come over to his property.

Kathy asked Mr. Busick if this was effecting his house or his property. Mr. Busick answered, “his property, but there shouldn’t be any run-off.” Kathy noted that there is a slope in the area.
Applicant stated that there is a big drainage area at the end of that upper parking lot on the south side that adjoins her property with Mr. Busick’s where the cars all park. It about 3 feet by 4 feet square and this area is a “feeder” to the retention pond. She noted that she has walked down to the end of her flag lot and seen very swampy areas which have nothing to do with the way the cars are parked because its 15 feet in from the grass line. “Its just the curvature and design of the land.” She said to Mr. Busick that it is very wet down there where they are both planning to put in driveways. Mr. Busick agreed that there were a lot of aquifers on his land.

Mr. Busick asked if this was going to be decided tonight. Chairman Cole replied that it would probably be voted on tonight if the Board agreed. Mr. Karnath asked if the approval would be for one house. Chairman Cole answered that approval has already been given for the house; the ZBA is deciding on the variance. Karl stated that the ZBA vote is simple: the proposed subdivision line is four feet too close to the school; its supposed be 100 feet, its approximately 96 feet, so our vote is simply to allow that four foot encroachment or not. That is the only issue the ZBA is allowed to consider, but he noted that they can put stipulations on it that they think there are bigger issues that the Planning Board should know about.

Mr. Busick said that this is certainly something that could effect his property as he is attempting to sell. Chairman Cole agreed and stated that if the Planning Board decided not to let applicant put in her driveway , they may not allow Mr. Busick’s driveway either. Mr. Busick said that his issue with a proposed driveway is advancing any run-off that is existing. A driveway on his property, because it slopes more onto his property, would be his issue and a potential buyer of the flag lot going down to the river. Karl reiterated that if Mr. Busick puts in a driveway, any additional run-off would effect him, but if his neighbor (applicant) puts in a driveway, it effects more than just his neighbor-it effects Mr. Busick and any potential buyer of the property. Mr. Busick added that this could be damaging to the sale of the property. Karl stated that this issue is addressable with land contouring or drainage; it is nothing that the ZBA can consider, but the
Board may wish to bring up to the Planning Board. Chairman Cole stated that this was an issue for an engineer and Karl agreed.

Mr. Busick stated that the parking lot was supposed to have had sufficient drainage so that this (the run-off) did not happen. Vic asked if there was something that was supposed to be done on the last project that was not done. Mr. Busick asked if Vic was speaking about the Planning Board. and Vic said, “yes.” Mr. Busick stated that he brought it to the attention of the Planning Board and the run-off issue was going to be addressed by the catch basins or drains in the elevated parking area. Vic asked if this did not happen and Mr. Busick replied, “the concern would be is it effective, is it working, and obviously it is not.”

Chairman Cole said that it sounds like there may be springs. He asked Mr. Busick how his well water was and Mr. Busick replied that it seemed to be fine.

Joe addressed applicant and stated that when she came before this Board for the school project she didn’t want to put parking in the back of the school because it would block the river view. Now she is wants to build a house in this area. Applicant replied that the house was not going to be on the top of the property, but down at the bottom of the property-the house will not be seen from the school.

Chairman Cole closed the Public Hearing at 8:02 pm and asked if the Board wanted to vote on the variance.

Rob asked if they had received an engineer’s report on the exact dimensions. Linda asked for clarification and Karl stated that the Board had asked the applicant to supply them with an engineer’s report or survey showing the exact distance that the Board was voting on. Chairman Cole asked applicant if she had the report or survey and Ms. Ferguson replied that she had given it to April (Planning Board secretary) and it had been here at the last meeting. Following discussion on whether the required information was available or not, Chairman Cole read into the minutes the memo from the Planning Board, recommending that the ZBA approve the variance. He stated that this was the only thing received from the Planning Board. Board members agreed that the request for the exact distance was in the minutes of the April meeting.
Applicant made a phone call to April, Planning Board secretary. April told Joan, ZBA secretary, that Ms. Ferguson had not yet contacted an engineer. She is waiting for the ZBA to decide on the variance. April suggested that Board members read the notes of the Planning Board consultant, Miles Putnam, to find out the exact distance from the school to the property line that will be created with the subdivision. She stated that the notes from the first meeting with applicant contained the information the Board was looking for.

Kathy stated that she believed the Board should wait and vote on the variance next month.

It was determined that the notes of the April 22, 2010 Planning meeting did state the distance was four feet. Kathy noted that the Notice of Disapproval from the Building Inspector did not state the distance for the variance. Karl agreed that the NOD did not say anything specific.

Linda stated that when she came tonight to the public hearing she thought that it was going to be “cut and dried” and that the Board was going to vote for this variance. However, Mr. Busick has raised true concerns for her. She sees many cars parked in the school parking lot every day and these cars leak oil and other fluids while they are sitting there. These leaks drain into someone else’s yard and she thinks this is a concern for the Board to check out. Chairman Cole stated that the ZBA has nothing to do with that. Linda said that if it was her, she would want someone to check it out. Chairman Cole stated that concerned neighbors can go to the Board of Health, the Environmental Board and others. He said the Board is concerned with four feet and that Mr. Busick can go further if he wants something different done. Chairman Cole stated that he would make inquiries about what is going on.

Mr. Busick asked what the Board’s decision will be based on. Karl explained the criteria of an area variance. Will this create a detriment to the neighborhood as a whole? Does this detriment far outweigh the benefit or does it just outweigh the benefit? Will the decision re-write zoning? Is the hardship self-created? In this case, it comes down to benefit versus detriment to the neighborhood as a whole. The Board’s decision is based upon, “will letting this flag lot be four feet wider be a detriment to the neighborhood?” He further noted that the Planning Board has already said that applicant can subdivide, will this extra four feet make a difference that is egregious? That is what the Board has to make it’s decision on. He repeated that the Planning Board is the one that decides on the subdivision.

Mr. Busick asked if there was any consideration for any other driveway. Karl answered, “I don’t know.” Rob stated that the Planning Board does consider issues like drainage. They can say that one can put in a driveway but must put in drains all the way down one side that catches all run-off. Or they can say that catch basins must be installed so water dissipates underground. Board members explained that the Planning Board determines engineering situations such as lighting and barriers.

Applicant stated that everything is correctable. Chairman Cole said, “Nothing is going to get corrected if we don’t move forward.”

Vic made a motion that the Board vote on the variance. Seconded by Chairman Cole. All in favor.

1723 Broadway Area Variance

Karl made a motion to grant a variance from 123-13O(1) to allow the property line to be 96 feet from a school building when the requirement is 100 feet, with the recommendation that the Planning Board review drainage issues of adjoining southern property expressed by Mr. Busick.

Motion seconded by Chairman Cole.

Linda asked if the Board could also add the barrier issue to the Planning Board recommendation and members decided that Mr. Busick should address this issue directly with the Planning Board.

Vote: Karl – I vote in favor. On balance, the subdivision meets every other criteria. The
applicant certainly has a right to get the road to her property, and the benefit to the
applicant far outweighs any detriment that this four feet will cause to the

Rob - I support this variance. Four feet is a minimal variance for the hundred foot
setback from the building, and with the stipulation that the Planning Board review
drainage issues, I think this covers all concerns.

Vic – I am in favor for both reasons that Rob and Karl mentioned, mainly the stipulation
that drainage is reviewed.

Don – I vote in favor of this motion.

Kathy – I vote in favor for the reasons that were already cited. I don’t think that it is a
substantial variance.

Joe – I am opposed.

Linda – I vote in favor. The four foot setback is really not a problem with me and I am
glad that we are going to have the Planning Board address Mr. Busick’s concern.

Motion passed. Chairman Cole dismissed applicant, Ms. Ferguson.

Chairman Cole stated that Ulster County Planning Board had sent a “no impact” statement regarding the Aberdeen application. He also re-read the TOE Planning Board letter to ZBA recommending that the ZBA approve the variance request.

Chairman Cole asked if all members had received the notices on upcoming seminars.

Next meeting is June 15, 2010.

Chairman Cole made a motion to adjourn the meeting. Vic seconded. All in favor.
Meeting adjourned at 8:21 pm.

Respectfully submitted,

Joan Boris
Secretary, Zoning Board of Appeals