ZBA Minutes 10-17-06

Mount Kisco Zoning Board of Appeals

Minutes

Tuesday, October 17, 2006

7:50 PM

Mount Kisco Village Hall

Members Present: Donald Rose

Harold Boxer

Michael Zucker

Robert Marino

Staff Present: Karen Schleimer

Austin Cassidy

Donald Rose: Good evening, ladies and gentlemen. I will call to order the October 17, 2006 meeting of the Mount Kisco Zoning Board of Appeals. We have two new cases to hear tonight, and we will get to them very shortly. The first order of business is approval of the minutes of September 19, 2006, which you all received in your package. If there are any corrections, I will hear them; otherwise I would like a motion that the minutes be approved.

Motion: Michael Zucker

Second: Harold Boxer

All: Aye

Donald Rose: For the record, we will note that we have a full board. As presently constituted we are down one member from the complement of five, but with four members present, any votes in favor of an applicant tonight would require three votes, and we will move on with the first new case.

Application No. ZBA2006-10

Matthew & Jordana Tynan

29 Marion Avenue

Members Present: Peter Cole, Architect

Matthew Tynan, Home Owner

Ferdinand Vetare, Neighbor

Donald Rose: Matthew & Jordana Tynan have applied for a construction permit at their residence, and have received a letter of denial from the building department in which the following points are key: the subject party is located in the RS-9 Moderate Density Single-family zoning district and two, in that district, the Village/Town of Mount Kisco requires under section 110-9C1F, 1B; a minimum front yard setback of 25 feet for any such construction. Your application proposes a front porch addition that intrudes into their front yard setback by an average of 3 feet along the length of 22 feet with a further projection of an additional 4 feet along the remaining length of 8 feet. That's leaving a setback provision of only 18 feet at that point. The applicants have chosen to appeal the denial, and I would invite the applicants and their representatives to come forward. For the record, state your names and then let's hear the merits of your application.

Peter Cole: Good evening, my name is Peter Cole. I am the architect for Matt Tynan.

Matthew Tynan: Matthew Tynan, homeowner.

Donald Rose: Welcome.

Austin Cassidy: Just as a protocol, do we have a copy of the return receipts?

Peter Cole: They were all submitted two weeks ago.

Donald Rose: They were submitted to the board secretary?

Peter Cole: Yes.

Donald Rose: Thank you.

Peter Cole: Good evening. I'd like to start out the presentation by asking the question, has the board had an opportunity to come by the property at all prior to the meeting? One of the key features that you've noticed is that it is a double lot on Marion Avenue, with a very, very steep hill to the back. I was able to get a copy of the tax map with the topography on it, and you can see from that, that this house has been pushed further forward on the lot than other houses because of the steep hill in the back, which is why that pre-existing porch is existing within the required 25 foot front yard setback. The other houses may not have that problem.

Donald Rose: What is the age of the house?

Matthew Tynan: 1903.

Donald Rose: I am sure that when it was built there were no setback requirements.

Peter Cole: But that's where they located the house, they had to pull it forward. And what we are proposing to do with the project is to add an addition to the side which will incorporate a family room, a mud room and a bed room up above, and then to give the house the Victorian flavor that it has now and to embellish it, we're planning on putting a wrap around porch around the new addition here, which will connect into the existing porch, which is located here, so that one can circulate up the front stairs right in through the existing porch into the new porch and down toward the side yard. No further encroachment will take place. We are actually just extruding the existing porch over this distance, I guess it's about 8 feet, and then setting it back, because there is no need to have that porch any deeper than what we're showing here. We're trying to keep the depth of the new porch at the minimum because it is intruding into the front yard setback. What I have also enclosed for the board to look at in your packages are copies from a Victorian house design book that shows that most Victorian porches are 10 -11 feet wide. Here, because we don't think we need the space quite that wide, and because we are looking for, really from the zoning board, we're going to have about 7 ½ feet. Anything less than that is not going to be practical for any seating or walking buy. So there is pictures in your packages there of a variety of other porches that are similar in style to what we're planning on doing. The other thing we've done, is I've taken a tour of the neighborhood, both on Manchester and Marion Avenue, and there is nine or so houses there, and I can hand these around to the board, of other houses that have very similar front porches. These are two exact same copies, to show that what we're trying to do is very much in keeping with the neighborhood and the style of the house. We think front porches are very not only attractive spaces for houses, but they also promote interaction between neighbors so that you can sit up front, talk with your neighbors and friends and participate in the life of the street and have a nice time for yourselves as well. We've looked at other ways to put the porch on, but based upon where the existing porch is located and the big hill in the back, there really was no opportunity to create the space that we felt is necessary to bring the house into today's lifestyle. That is essentially what our application is.

Matthew Tynan: My wife and I wrote a letter to six of our adjacent neighbors explaining what we were trying to do, and inviting them to ask questions and provided our phone number, and we spoke in person to the neighbors to the front, back, either side and rear corner, as well as a few folks down the street, and everyone was supportive of the plan.

Donald Rose: Have you received any letters of support?

Matthew Tynan: No, we haven't.

Donald Rose: How far behind the present house can you go before the topography really works against you, or does it slope up immediately?

Peter Cole: I will show you from a photograph it really starts to come up very, very quickly.

Austin Cassidy: You can see on the survey there is a retaining wall right behind the house.

Peter Cole: Here is the back of the house. The hill is starting right there. All the land is off to the side.

Donald Rose: I am familiar with the hill on that street. I know it is quite steep and it's obviously very steep from this topo there.

Peter Cole: Does anyone else want to see some photos of the houses?

Robert Marino: Please.

Donald Rose: It's conceivable that you could move either the addition back slightly or move it back a little more than slightly and build some kind of a retaining wall deeper.

Peter Cole: We still wouldn't be able to connect to the existing porch, which is what's key. That's really what's setting up the variance, is the fact that we want to be able - we think we should be able to walk around a wrap-around porch to keep the style of the house and to make it functional. The only place we can have a little walkway in the back to connect this part of the back of the house to the back door to the rest of the property is to maintain, but you'll probably get maybe six, eight feet before this sloping starts to come up. So there really isn't much opportunity to go back further, and architecturally speaking it kind of unifies the façade to have this thing come across.

Harold Boxer: The addition is not coming up any closer to the front than the existing porch.

Peter Cole: No, we're just pushing it to the side only for enough to be able to make a transition back.

Harold Boxer: So you're just asking pretty much for a continuation of a non-conforming use?

Peter Cole: Correct.

Donald Rose: But an enlargement and expansion of that, because it would be more linear footage and therefore more area.

Harold Boxer: But it doesn't affect anybody but them.

Donald Rose: Well, it certainly still has to be addressed in terms of the zoning regulations. I would note that it seems that we are seeing an increasing number of cases of this type where the house has been purchased that are now too small for the resident's use. I mean, that's perhaps in a sense a good sign that people want to upgrade the properties to the extent that they are. It would appear that you probably nearly doubling the square footage of the house?

Matthew Tynan: We currently have one living room. We bought the house before we were parents, and we realize now that a newborn and hope for another child, that another living room would be ideal.

Donald Rose: Yes, and that's the use of a modern family, which is different than it was 100 years ago.

Matthew Tynan: The former families raised three kids in the house, which just boggles our mind.

Donald Rose: We had such privations when we were young, didn't we? Are there other houses in the immediate neighborhood that have a similar existing intrusion into the setback?

Peter Cole: Yes, this one right here, and this one right here.

Austin Cassidy: For the audio record, please identify this one.

Peter Cole: I'm sorry. I would say its lot number 15, lot number 9 and I believe 16 as well. 15 and 16 are adjoining lots. 9 is across the street, and they don't have the hill. You can see clearly that there's goes back quite a bit further than this one does. This one comes much closer. This one is the closest. If you take a parallel line between Marion and wherever the closest point of the hill is, the subject comes in the closest.

Michael Zucker: I'm not quite sure what relevance that has.

Peter Cole: That's why they brought the house forward; otherwise the house may have been originally setback further into the hill, then we wouldn't have needed the front yard.

Donald Rose: Are you saying really that the hill on the subject property is closer to the street than it is on any of the neighboring properties?

Peter Cole: Correct. So the available space left over to build a house was squeezed in.

Donald Rose: It would be possible to do less of an extension and not increase the variance or not come before the board.

Peter Cole: Again, for the porch, one needs to connect to the existing porch, and that's why we're in front of the board. The house itself doesn't require any variances.

Donald Rose: But it's really the desire to have the porch that causes the request.

Peter Cole: We've noted that the most attractive houses in the neighborhood are all the Victorian houses with the front porches, and that's an important characteristic both of the design and the functional needs the family has addressed in terms of creating something that will make them happy for many many years on the street. That's why I took photographs of other houses that have the porches.

Matthew Tynan: We've met most of our neighbors, really within the first week of moving in just sitting on the porch, and it's a street that people walk through to get into town and we just hope to further maximize our use of it.

Donald Rose: Are there any neighbors of the applicant in the audience who wish to comment on this?

Ferdinand Vetare: I'm Ferdinand Vetare. I want you to know I've lived in the house across the street from this house for 43 years. I'm extremely pleased with the young people, the Tynan's, who have just moved in. They have already indicated by some of the things they've done, they have lavished a lot of care on the home, and I am sure that what they intend to do with regard to upgrading it can only enhance the beauty of that piece of property, which is right up against that hill, as you notice topographically when you look at the map. The idea that they are going to add a room indicates to me that maybe they are going to add more children. And I like that. When you get to my age you like to see little ones again, and so I'm looking forward to that. And I think it's going to be an addition to the neighborhood. It can only enhance the value of our home as well as the home that he's going to improve, and I'm strongly in favor of you going ahead with this project.

Robert Marino: Just so I'm clear, you have the house directly across from theirs?

Ferdinand Vetare: Yes. 28.

Donald Rose: Do you know what lot number yours is?

Ferdinand Vetare: Oh, no, I wouldn't know. Number five?

Donald Rose: Number five, okay.

Ferdinand Vetare: It's just a great idea; I am strongly in favor of it. Thank you.

Donald Rose: Thank you. Are there other neighbors who wish to speak to this application? For the record there are no other members in the audience who wish to address the board. I would say your existing garage of course is again something that we've seen very typically. It's quite close to the property line and could not be built today under the zoning regulations. But I know this board has shown a tendency to support applications where the neighbors are in favor and the upgrading is clearly of a high quality type of thing.

Austin Cassidy: Historically and architecturally correct is the basis you're considering.

Donald Rose: As I think in previous decades, this and many other communities, additions have had very little architectural merit, and if that were the case I think that this board would probably feel differently about such a request for a variance. Other members of this board; do you have some questions for the applicant?

Michael Zucker: I can tell you that I drove by the property today. My only concern was the fact that it is the closest to the street of all the properties, and I was a little worried, but listening to the neighbor, I am feeling much more comfortable.

Donald Rose: The width of the house will actually more than double, will it not?

Peter Cole: The width will double, but really the footprint is rotated. So this goes this way, this piece will go that way, essentially the same.

Donald Rose: And it will become more vertical with the addition of the current style of roof?

Peter Cole: Right.

Donald Rose: Will the present chimney still be the tallest point on the house?

Peter Cole: Probably close to the top of the turf, yes.

Donald Rose: And, of course, we are in a sense looking at something conceptual. These are preliminary plans. What assurance can you give the board that the final plans will be substantially in agreement?

Peter Cole: It is our intention to do that.

Austin Cassidy: Are we talking about elevations, or are we talking about topo?

Donald Rose: Elevations, I mean it all ties together in a sense. There's a certain balance in terms of the height to the width of volume.

Austin Cassidy: Are you ready to come in on the record that the elevation before the board -

Peter Cole: Will be substantially similar -

Austin Cassidy: - dimensional and aesthetically.

Peter Cole: We may adjust dimensions.

Austin Cassidy: Have you met the Architectural Review Board?

Peter Cole: No, we felt we'd come here first. But we may adjust dimensions slightly, but we would like to, I don't know the wording that's appropriate but we plan to make it very similar to what you see in front of you. But if you need some latitude to work out certain details between parameters -

Matthew Tynan: The aesthetic won't change.

Peter Cole: No. The style will be the same, the turret will be there.

Donald Rose: I guess in terms of this board's jurisdiction, all we can really do is make sure that the intrusion into the setback area would not be increased from what is shown. If there are any dimensional changes, they wouldn't involve coming forward to the street.

Peter Cole: Yes, we can certainly commit to that.

Austin Cassidy: Basically, the logical linkage is if the board is weighing this on the basis of historical and architectural correctness, and yet only part of the building is before the board, the porch, and the porch is being introduced to a dimension that is somewhat reflective of the Victorian of the period, then the board is seeking then an assurance that the rest of the building - they are sort of reviewing the tail and they want to know about the rest of the dog - is going to stay.

Peter Cole: Yes, essentially what you see. I think we are prepared to make that commitment.

Donald Rose: We might be able to say in our wording that the house will appear in the Victorian style that the preliminary plans have presented, and similar to the drawings that have been submitted as examples of Victorian architecture 150 years ago.

Peter Cole: Fine, I think that's fair.

Donald Rose: Are there other concerns? If there are no other concerns, then I would suggest that we close the public hearing.

Motion to close public hearing: Michael Zucker

Second: Harold Boxer

All: Aye

Donald Rose: Let us proceed in the discussion of the factors that are required of the Zoning Board, weighing the merits of the application and determining whether the benefit to the applicant warrants the granting of the variance. The first test that we are required to apply is whether an undesirable change will be produced in the character of the neighborhood or a detriment to nearby properties will be created by the granting of the area variance. Anyone?

Robert Marino: No, it doesn't appear that there is any detriment to the neighborhood, and in fact, the neighbor directly across who would be most effected by the increase of the front yard setback deficiency spoke eloquently about why he believes it would be a benefit to the neighborhood, and I'm familiar with that street, and have visited this house when the prior owners had it, and I agree that based on what we have in front of us, this would be certainly an improvement to this property, and without any detriment to the surrounding properties. I would also like to just note for the record that the zoning analysis - the building that is proposed is still, if these numbers are correct, still well below what the maximum building coverage might be; maximum development coverage, minimum rear yard set back, in this case 90 feet from the rear yard property line as opposed to the required 30; again because of that topography, and while it is tighter than required on one side, that's a pre-existing non-conformity that will not be increased, and it is in keeping with the maximum building height allowed. In view of the historical architectural plan that we have in front of us, in keeping with that neighborhood and the fact that expanding the front porch is required to maintain that historical accuracy, I think it's important that we note that in our findings, and again, doesn't in my mind cause any detriment to the surrounding properties.

Donald Rose: The second test is whether the benefit sought by the applicant can be achieved by some other method feasible for the applicant to pursue other than an area variance.

Harold Boxer: I think they stated that they can't go back anymore, and it would also make it for a strange house to have one part substantially behind the other.

Donald Rose: And I would note that in particular reference to the Victorian design that is desired, it really requires that rather tight massing of the original and the new and the contiguous porch that does wrap, and I would doubt that the same area added through a different design would achieve anywhere near the attractiveness of the proposed design. The third test is whether the requested area variance is substantial. This is always a question of numbers. In the opinion of the chair, the request is modest. There is already an existing intrusion into the setback of I believe 8 feet in length of the existing porch. That existing maximum variance of 7 feet would need to be extended laterally for another four feet in order to accomplish the connection and would not come any closer to the street. So the remaining portion of the new porch that would be setback further is requiring a variance along that length of I believe only three feet, if my numbers are correct. Yes. And are there any other comments on that particular test, Number 3? And, Number 4 is whether the proposed variance will have an adverse affect or impact on the physical or environmental conditions in the neighborhood or district. Anyone? Do you want to address that?

Robert Marino: No. The addition is on what is basically a clear lot for the most part. I believe there may be one or two trees there. This is a sewage street, so I don't believe that there is any detriment to the environment as a result of the proposed plan.

Donald Rose: And Number 5, whether the alleged difficulty was self-created, which consideration shall be relevant to the decision of the Board of Appeals but shall not necessarily preclude the granting of the area variance.

Harold Boxer: I think every applicant that comes before us is self-created. This one doesn't seem to have a major impact on the neighborhood, it will make the house nicer looking, and I don't have any problem with it.

Donald Rose: Anyone else have any issues? We agree that this particular difficulty was self-created but the intended final result would appear to be a visual and economic benefit to the neighborhood. If there are no other comments on these tests, I would ask one of you gentlemen to try phrasing? Bob would you like to try phrasing a resolution that we could vote on?

Robert Marino: I move that we grant the variance as requested with the provision that the structure that has been provided for us with the proposed plans that we have before us is constructed in substantial conformity to those plans.

Donald Rose: And I guess in particular the, though there might be some dimensional changes in the final plans compared to the preliminary, the essential quality of the Victorian design will be maintained, and there will be no increase in the length or area of porch that would intrude into the setback area beyond what we are approving in this resolution.

Motion: Robert Marino

Second: Harold Boxer

All: Aye

Peter Cole: Thank you very much.

Matthew Tynan: Thank you very much.

Applicant: New Zion Realty, LLC

96 Lexington Avenue

Case No. ZBA 200610

Present: Scott Davidson, Owner

David Steinmetz, Esq. representing applicant

Peter Gregory, Architect

Donald Rose: I would like to open the public hearing on the case of New Zion Realty, LLC, 96 Lexington Avenue, in which there is a request on the part of the applicant to grant a variance of 13 parking spaces on a property where the intended use would require 19 spaces and only 6 parking spaces would be provided.

Austin Cassidy: If I might, Mr. Chairman, just as a preamble for the board, a little background; this property, specifically this property used to have a building on it in totality. Essentially the lot was probably 85% if not 90% covered by a building. A number of years ago, whatever year that the variance was granted, the property owner came before actually the Planning Board and the Zoning Board relative to removing the building where the parking area is now and changing the use of the remaining building. However, no matter how you sliced it, it was not enough physical area to provide parking. The use that was being proposed at that time known as Dathar, was a very unique and specific use where the occupants were the clients and were incapable themselves of driving, and would be taken by bus most typically to the site, and there would be minimal on-site parking needs as it was represented. There was still clearly staff, and there was also clearly neighborhood concern at the time that this site was not going to be able to support itself even just for staff and that there would be neighborhood intrusion by vehicles. The applicant at the time had assured the Zoning Board that that would not be the case, however, later on post variance granted by the board, a variance of four spaces. That particular use needed ten. They were able to supply six on site, but were shy four, so they then pursued a variance of four spaces. Nevertheless, there has been a history of on and off intrusions into the neighborhood by the staff of the current occupant, which is still essentially the Dathar Operation, albeit the name changes to Ability Beyond Disability. That use is vacating the premises, and they are consolidating their operation over on Kisco Avenue. The property is therefore going to be vacant, and the property owner is seeking a new use, however, facing physical issues once again.

Karen Schleimer: If I also may make a comment. It seems to me when Dathar's variance was approved, there was some -

Austin Cassidy: Voluntary, I think.

Karen Schleimer: Yes, where they acquired spaces from the Village off-site and had parking permits at another location for their staff. I'm not sure, it was a long time ago, but I think that this board may want to just take a look at that resolution as it was offered in the papers. I'm not sure how functionally well that worked.

Donald Rose: For the record, please identify yourselves.

David Steinmetz: David Steinmetz, representing the applicant.

Peter Gregory: Peter Gregory with ------ Koppleman Engineers, we are the site engineers for the project.

Donald Rose: And also, for the record, I assume that all of the notifications have been sent.

David Steinmetz: Mr. Chairman I filed that this evening as I walked up.

Donald Rose: Okay, then let us proceed and let us hear the merits of the application.

David Steinmetz: Mr. Chairman and members of the board, as I said David Steinmetz from the law firm of Zarin and Steinmetz. My colleague, Brad Schwartz, who has been working with New Zion and Scott Davidson, prepared and submitted a letter from our firm to your board, and we've also been working with your Planning Board over a period of time with regard to the application. First of all, Scott's entity, New Zion Realty, is a contract vendee on the property. It is my understanding that Mr. Finkelstein, the property owner is here this evening, also here before your board. Scott's company, which is referred to as S.H. Davidson Interiors, is presently doing business here in the Village and would very much like to relocate into the subject premises. Scott does basically upholstery work, customer upholstery work in his facility. He can describe his operation in greater detail if you'd like to understand it. This is not a retail store; this is not a place where you bring your furniture. This is a situation where Scott basically has a business, has employees, has fabrics and does the service that he performs in the space basically by getting contacted, going out to people's property, picking up a piece of furniture in his vehicle, in his van and bringing it back, and it's worked on site. There are, as we indicated in our submission, a limited number of employees, there are an extremely limited number of customers that would come to the site on any given day, and we are prepared to address that and provide you with some parameters and indications. Austin kind of indicated what I think the essence of this application is. And it's a unique application to me, because it's a very unique piece of property. This property presents itself, basically, mathematically with severe impediments to do anything on the zoning. In 1995 when Austin was called upon to write a memo to the Planning Board, he indicated that there was no use of this property that could be legally operated without some kind of parking variance. Though he corresponded again and provided us with the denial we needed to get before your board, it didn't make that exact same statement. I'm hard pressed to find any economically viable use of this building that could be operated without some form of a parking variance. So, I start from more or less the same position as Austin that it's a severely constrained site. That having been said, the unique application you have before you is a service establishment that has a very, very low parking demand. This is not a retail business with turnover. This is not an office operation with patients or clients coming and going and a large staff. Scott happens to be one of the few things that you actually can put on this property, put it in a box, limit the usage and hopefully make economically productive and effective clean use of the property. Since 1995 when you folks were faced with Dathar, Ability Beyond Disability, I think a few things have happened. One, that use ended up being somewhat problematic for the community, and it's something I think the Finkelstein's are desirous of seeing corrected, and actually now they are desirous of actually selling the property. We believe that unlike Dathar or Ability, we're not going to have the comings and goings, the vans, the patients that they have. We think we actually have a far less impact-ful use of this area. In addition, it is my understanding that it's Gatto Drive, unlike '95, I think Gatto Drive is now regulated in terms of parking on the street and now requires permit parking only. So, we can't even operate a use where we are going to have spill over parking onto the street impacting the neighbors. You can't park there without a local Village permit. So, what we are presenting to the Village is a clean, effective use of this property. The Planning Board; we've been before your Planning Board, we presented this, we answered a number of questions for the Board. We felt we got a favorable response from the Board. Though I don't believe you received anything in writing from the board, at lest that I'm aware of, our impression from the chair and from this board was that they felt that Scott did present them with a unique opportunity one of a very few things that you could actually put on this site. They referred us to your board because they knew absent the parking variance, we would be wasting a lot of time, and money and effort in front of the Planning Board, so that's why were here. I did take a look at your 1995 zoning resolution or variance resolution to see how you analyzed parking for this site with regard to that use. I think there are some things that you said in that resolution that are relevant to this application looking at in essence ways to minimize impact, and as Ms. Schleimer indicated, your board at that time 11 years ago, actually 11 years ago tomorrow, looked at unique ways to analyze parking. My understanding is that Mr. Finkelstein, and he'll correct me if I'm wrong, participated in some arrangement with the Village to make use of parking permits behind the existing, what do we refer to it these days?

Scott Davidson: Right behind the courthouse and over.

David Steinmetz: The shopping area behind Starbucks. Am I correct?

Karen Schleimer: No.

David Steinmetz: Did I identify the wrong area? I apologize. He did, however, secure parking from it. What Scott presents you with is a situation where basically his parking demand is five spaces. It's five spaces because he drives a van and needs to park. He's got two employees who drive and park, and we have two spaces available for customers. As he's indicated in our submission and can answer your questions, he never has more than two people in this facility at any one time. He's got a modest show room area where there are some fabrics, and you can actually - a customer could come in and meet with him, or a worker, and then he's basically got workroom area. We are, however, showing six parking spaces. We have re-striped the lot, Peter's office has re-striped the lot, and we now have six compliant spaces, code compliant spaces including one handicapped space. Currently you have six spaces on this property, none of which are code compliant. So out of the starting gate we think we are giving you an improvement in terms of parking and flow on the site. In terms of deliveries, this is not a facility - Scott you don't get regular deliveries, it's basically UPS trucks and FedEx.

Scott Davidson: Yes, UPS and FedEx.

David Steinmetz: So you don't need loading and a real trucking area. As a result of that, we believe we have a parking demand of five. We are showing six spaces. I want to offer one technical correction for our submission and for the application. We sought a variance of 13 spaces from the - correct me if I'm sighting this wrong - from the 13 spaces to the 19. Our parking analysis showed a code requirement of 19. We have six; we need a variance of 13.

Donald Rose: Under the tabular requirements, what use would this serve?

David Steinmetz: This is a service establishment. But I want to make one ministerial correction to my own disadvantage. We indicated one space for employee and we indicated five employees, there are five employees. What we neglected to do when we looked at those five employees was remember that Scott was also technically for parking purposes an employee. So technically there should be six employees or six spaces, which would get us to 20 total spaces. So I'm actually here tonight correcting my application. We're seeking a variance of 14 spaces, not 13. We are seeking a variance of 70%, not 68%, and I'm going to get the substantiality. I think the Planning Board as I said looked at this as a unique application. I hope you will look at it as a unique application. Quickly looking at your factors, undesirable change in the character of the neighborhood, we believe that this is an extremely desirable improvement to the character of the neighborhood. He's going to fix up the building, Peter can walk you through the exterior modifications that we are hoping to make and that we're hoping the Planning Board will approve, and we absolutely think that the reduction of the comings and goings to Dathar will be an operational as well as an aesthetic improvement. In terms of any other feasible alternative other than the variance, there is no other feasible alternative. There is no way to conduct business on this property in this CN or Neighborhood Commercial Zone for these types of uses without a parking variance. There is no way around it. As far as substantiality, I think that's probably the most unique and important factor that we need to deal with. On its face mathematically, I'm here asking for a 68 to a 70% variance. I don't like going to any Zoning Board and asking for a 70% variance for anything. Having said that, two important issues that I think you need to acknowledge; one, the case law that we put in our letter does say that substantiality is not merely a mathematical analysis; if you're over 50%, if you're over 30%, if you're over 45%. It's too substantial. It actually says there may be some high mathematical variances that have minimal impact. There may be some low mathematical variances that have very high impact. What you did in 1995; eleven years ago; was acknowledge that there with a 40% variance that you were granting to our predecessor, the board has determined that the variance requested is substantial; although this finding is mitigated by the minimal intensity of the proposed use. You did the right thing as a matter of law. You didn't just look at your numbers; you looked at the actual intensity of the use. We would suggest to you that the intensity of this use is in fact minimal. That based upon his restricted use of employees who drive, others have dropped off, and he's had the same employees for -

Scott Davidson: Fifteen years.

David Steinmetz: He is driving his van. That's what he's going to continue to do. There is no large elaborate staff. This is a minimal intrusion. This is not an intense use. As a result, of which we suggest that from a substantiality standpoint, it's not a substantial variance. And even if it is substantial numerically, when you do the balancing test of benefit versus detriment, the benefit clearly outweighs any detriment. Going to the fourth factor in terms of any adverse environmental impact, we're not aware. We haven't seen any, and most importantly, in discussing this with your Planning Board and its professional staff including their professional planner, no one has identified to Scott a significant adverse impact that he's not addressing in some way. As far as self-created hardship, again, somewhat unique because there is no way to do business without a parking variance. Our predecessor has a parking variance. Yes, we are increasing the numerical or mathematical magnitude, but we're - it's a parking variance. It was a parking variance then, it's going to be a parking variance now. If we leave and Mr. Finkelstein tries to put somebody else on the property, they are going to be back in front of you for a parking variance. Whether they are going to have a small, quiet upholstery shop is another story altogether. We think representing something that is actually doable, clean and beneficial. So as a result of that, we would ask that you look favorably upon the application; that you look at the benefit to the community and the benefit to the applicant's use of the property versus the detriment, which we don't find or submit as appreciable or significant, and we would ask that you grant the requisite fourteen parking space variance. Now, as Ms. Schleimer indicated if there is anything that we can do to give you voluntary conditions or restrictions, Scott is in the Village, he wants to stay in the Village; he wants to buy this property from Mr. Finkelstein and use it. We are absolutely willing to make your board as comfortable as you can, and again, I know we're going to be dealing with some conditions of that nature with your Planning Board as well.

Austin Cassidy: If I could just clarify something I just heard you say.

David Steinmetz: Sure.

Austin Cassidy: If this goes well in terms of the process, your client is going to acquire the property.

David Steinmetz: Unless you want to buy it for him.

Austin Cassidy: No, no no. <laugh> So, if your client leaves the property, your client would be the one that would be selling, no longer Mr. Finkelstein.

David Steinmetz: My client would be selling to the next - hypothetical purchaser.

Austin Cassidy: Holding on to it and leasing it out and Mr. Finkelstein would be out of the picture.

David Steinmetz: Correct. New Zion Realty stands before you in a position to encumber this property with restrictions because if we get the variances, I'm not hiding anything, this is probably self-evident to most of you, if we get the variances and we get the site plan approval, we satisfy our conditions; Mr. Finkelstein gets paid, we close, we're ready to open for business as soon as you give us a C.O.

Austin Cassidy: Well, try and define parameters for the board. The board is going to clearly want to seek a comfort zone in the understanding that the consequences of any consideration of a variance here.

David Steinmetz: Good question.

Austin Cassidy: If you should leave, and a service business has been established there with a variance of x amount of spaces -

David Steinmetz: Correct.

Austin Cassidy: What is the next person that could step into the shoes of the service business - what are they buying into and what is the board painted in the corner on, if they are painted in the corner?

David Steinmetz: I think that's an excellent question, and I think that truly is the analysis that you need to do to protect yourselves, and I think you kind of back into that. First of all, Austin and I both know, and I am assuming your board is aware, that if there is a “change of use” of the premises under your Village code, and I don't have the section handy although I can grab it if you need it for your record, there is a requirement of a Change Of Use Permit before your Planning Board. So that triggers the administrative review. That's what we're doing here. Scott spoke to Mr. Finkelstein, was interested in buying the property, we looked at your code, we knew we were changing the use from Dathar to upholstery; we went before Austin and your Planning Board for a Change of Use Permit which starts the process. So first and foremost, if somebody comes in to do anything different from what he's doing, they need a Change of Use Permit. So how do we define -?

Austin Cassidy: Well, not necessarily, that's what I'm saying. If another service business; computer service, let's just make something up - obviously is going to be a lot different traffic pattern as people are running and dropping off computers for servicing in that building, and yet it's still a service business. So, the board needs, and the Planning Board as well, needs to feel comfortable about not just being myopic of this application and this application only, but in terms of the continuation, are they basically escalating uses of the property and the variances being granted are just getting bigger and bigger.

David Steinmetz: Understood. I think there are two ways you can deal with that. One, you can consider granting a variance to an upholstery service business, and that's what you did eleven years ago.

Austin Cassidy: Exactly.

David Steinmetz: You gave a very narrowly drawn variance. That's one way to do it. The second way to do it; you could back away from the upholstery business concept and say, okay I'm just going to look at this as a use category of a service establishment, but it's a service establishment with five employees. You got more than five employees? I don't care, what was your hypothetical?

Austin Cassidy: Yes, I already thought about that. But on that point, you don't want your client come back, he wants to hire somebody for a variance.

David Steinmetz: Well, yes and no. You're right. I'd rather not do that, but Scott understands at the moment he's asking this community, your board and the Planning Board to grant him some difficult approvals on paper. In other words, you're asking for a 70% variance. He's willing, and he's already offered in this application to say to you this is my operation. He believes he can conduct his operation in this fashion. If we are given some flexibility and latitude, which I think is obviously preferable, we'd like to have that, but we want to buy this property and we want to operate this business. And quite frankly, I think you could create that control by limiting the number of employees. Personally, I think it's easier to do it by saying, upholstery business, with no retail use. I think it's easier to compare that with the next use. But that's a decision you have to make. Remember you made a very tight decision in terms of a limited educational use with severely handicapped individuals who would not be driving, etc.

Michael Zucker: My concern is not the number of employees; it's the number of employees who drive. Can we make it that specific?

Donald Rose: Well, I would say that it becomes like trying to thread something through a very small eye of a needle to say that five employees; two of whom never drive, would seem to be a very difficult thing to enforce.

Michael Zucker: Do we have to mention the number of employees at all? So what if they had 50 employees? If they all walk, I don't care. It's strictly the cars.