ZBA Minutes 2-19-08

MOUNT KISCO ZONING BOARD OF APPEALS

Minutes

Tuesday, February 19, 2008

7:30 PM

The Old Post Office

Members Present: Donald Rose

Robert Marino

Harold Boxer

Members Absent: Mickey Zucker

Staff Present: Karen Schleimer

Chairman Rose: Good evening. We will call to order the February 19, 2008 meeting of the Zoning Board of Appeals. We will note for the record that this is a four member board and only three members are present. We will note for the record that there are no members of the public in attendance.

Minutes - September 18, 2007

No quorum to vote on minutes

New Case:

a. Howard & Sheila Green Case #ZBA08-01

212 Forest Drive

Mount Kisco, New York 10549

Howard, Sheila and Deborah Green, applicants and property owners

Chairman Rose: We have no returning cases and one new case. This will be Case #ZBA08-01 Howard & Sheila Green 212 Forest Dr. I understand there was a notice of complaint and a Work Stop Order dated January 10, 2008 and a memo from the Building Department Inspector Jeffrey Econom to Austin Cassidy the Building Inspector dated January 23, 2008 pertaining to various items. Some of which I believe would not be a prevue of this board. We are just concerned with the matters pertaining to zoning requirements and any variances and with respect to those requirements that might be needed. Has the applicant met the requirements of notifying the necessary people and have all the certification of mailing been returned?

Nancy Placona: Everything has been received and publication was made and affidavit of mailing has been received and return receipts were received.

Harold Boxer: May I interrupt for a moment. I need to ask counsel whether the appeal of denial is proper as there was never a notice of denial by the Building Department.

Nancy Placona: Jeff Econom was directed by the Village Board Building Inspector in the absence of Austin Cassidy during his medical leave.

Harold Boxer: He did not deny this.

Nancy Placona: There was a stop work order.

Chairman Rose: Does that constitute a denial?

Karen Schliemer: If you take a look at the folder it refers to a decision of Jeffrey Econom dated 1/23/08 which is not the same as the stop work order dated 1/10/08.

Harold Boxer: You do understand that we have to follow the law.

Howard Green: He told me when I was filing the papers three weeks ago he said that he would write the denial and to go ahead with this procedure.

Karen Schliemer: The problem here is we have to know what you are appealing from and you are appealing from a decision of Jeffrey Econom who said you can't go ahead because and we do not know what the because is. That is the problem that we are having here. Nancy I do not know if there is a 1/23/08 letter.

Harold Boxer: Is Jeff available by phone?

Nancy Placona: If needed, he is on vacation and I can get him on the phone.

Karen Schliemer: The public notice refers to it as a decision 1/23/08.

Nancy Placona: I know we have the memo dated 1/8/08. If needed I can call Jeff.

Chairman Rose: Do we have the plans?

Howard Green: I applied to get a permit to replace the deck and I received the permit.

Karen Schliemer: That is this construction permit.

Howard Green: Correct, because I tore down the deck and then I got the construction permit.

Robert Marino: This lead to the side yard set back issue.

Howard Green: That is exactly right. I had the permit and I thought I was within the footprint of the house, so I thought I was ok. I have all kinds of evidence that I believe I had when I bought the house.

Chairman Rose: That is jumping ahead a little bit.

Howard Green: The letter says here there is a plan in the file. There is no evidence of a variance granted for the side yard setback. I think my area is 10 feet and I am supposed to be 5 feet.

Chairman Rose: Are you reading from the memo January 8, 2008?

Howard Green: Yes and it says please note that the building permit and indicates the problem of the setbacks.

Karen Schliemer: This is the internal memo to Austin Cassidy that you are reading from?

Howard Green: Yes.

Chairman Rose: Did you say that you had gotten a construction permit?

Howard Green: Yes. I followed all the regulations. I was in the Building Department and had asked if I needed a permit and they were able to help me with it. I got the permit to do everything. I had two inspections and you have the pictures. The footings were going into bedrock and I wanted to make sure that everything was right. At my house the side of the hill it goes into bedrock so I am tying it into bedrock. I had two inspections. As far as I knew and until I got this stop work order I never new I did not have the variance. I bought the house 1973. In 1973 I had the lawyer and a professional engineer. In 1978 we had a reassessment and there is a picture of the deck/footprint of the house.

Harold Boxer: Before we continue I think we have to decide whether we are comfortable going forward.

Chairman Rose: Yes, that is a key point, because the regulations call for a specific denial letter that would indicate chapter and verse why there is a denial.

Karen Schliemer: The job of this board is to hear and appeal from denial the building permit. We don't have that. So the question is what is the appeal? I have questions as to what the issues are, because we are talking about a deck and then oops there is a shed. We are dealing with two different pictures of two different decks. Without the guidance of the denial which is generally very specific. We don't know exactly what his issue is.

Harold Boxer: Is there anything in the file? A January 23^rd denial letter?

Nancy Placona: I can get Jeff on the phone and conference him in.

Harold Boxer: Nancy is going to call Jeff and try to get into his computer and get the January 23, 2008 letter.

Chairman Rose: Before we recess there is one other issue certainly we can't do anything else either unless we have a copy of the plans that are referred to.

Howard Green: I have filed the plans.

Nancy Placona: When he applied for the building permit his plans are attached to the application. In your packet you have the deck plans and his survey.

Chairman Rose: We have sketches of the shed and the survey.

Howard Green: The plans are attached to the building application.

Nancy Placona: All the copies were left in front of you this evening.

Karen Schliemer: Those do not show location it just shows the construction of the deck.

Nancy Placona: That submission allowed him to go forward with his building permit. I have photographs that the applicant submitted showing the house and the topography. The site plans are attached.

Karen Schliemer: There are two surveys.

Harold Boxer: One when the house was built.

Howard Green: One from 1969 before I bought the house.

Viewing of the property cards when built and survey from 1969.

Howard Green: This is from 1978 and I am using the same footprint.

Chairman Rose: That is the assessment card.

Howard Green: That is when the assessment was done and I believe and I have no documentation that the people filed everything before I occupied the place.

Karen Schliemer: I don't know which one you have because the updated revised survey in October of 1969 shows a narrow deck and does not show the 16 x 19 piece.

Howard Green: This piece that you are looking at was 1969 and this was when the house was built. I did not buy the house new. I bought the house in 1972. In 1972 when we moved into the house and we have all kinds of evidence the deck was up and the deck looked like this on the assessment that was done in 1978.

Chairman Rose: Did you receive a survey at the closing?

Howard Green: At closing there was a document to clean and varnish the deck.

Robert Marino: The problem that we have is usually when we open this file and one of the first things that we see is the letter of denial from the Building Inspector.

Howard Green: HE said he was going to file it.

Robert Marino: I understand. We are trying to work it out. We understand that you want to get moving with your project. What that denial letter will tell us is exactly what variances are required and what regulation it refers to. So if we give you an approval you will have something that you can go to court with as opposed to just talk it over off the top of our heads.

Howard Green: I thought I went through everything.

Robert Marino: This has nothing to do with you. There is no implication to you.

Chairman Rose: Is it conceivable and I direct this to counsel that we could make a presumption of what the denial is?

Karen Schliemer: Absolutely not. We don't have the dimensional evidence as to what the size of the deck was or what was applied for. That is an assessment card not a survey. It is not dimensionally reliable.

Harold Boxer: The other thing is if you are claiming it was existing you have to go back to the original house plans. All you are entitled to do is redo what was there on the original house. Unless you can find the C of O for the larger deck.

Howard Green: I understand that. When I came here to just get a variance going to five feet instead of ten feet. I thought it was simply and I filled out all the papers and I said two levels I was here. One is I thought everything was done and the first time I knew I was in some kind of violation of the zoning laws is when I got this letter in January. If it wasn't proper and wasn't there which I am just here to get a variance. I did all the paperwork and all I want is to go from ten feet to five feet.

Robert Marino: The problem that we have is that and counsel is absolutely correct that we have very technical rule of what we do and why we do it. Sometimes there are issues that we are hyper technical about and the average person may say for crying out loud. The guy just wants to do this. We have a responsibility under the law to operate in a certain way and that is what we are trying to do is get that clarified.

Harold Boxer: These laws are to protect you in the event of a denial and you want to go any further you have to have our denial and we can't give you a denial until we get the denial from the building inspector. It is in your best interest.

Howard Green: When I was in the office and I heard him say to this lady (pointing to Nancy Placona). They said there was no denial and he said he was going to issue a denial. I took it on faith and everybody in the office heard it and I am here to get a variance. I didn't get the denial letter because I did not know the procedure.

Chairman Rose: There is another factor too. It is conceivable that a neighbor or anyone else can bring an action against a favorable ruling by this board. The ruling can be found deficient because proper procedures were not followed. It is technically important to nail these things down. We would need for both this committee and you may have filed the drawings but we would need copies of the filed drawings as well as the denial of the permit based on those drawings.

Nancy Placona: The drawings were filed with the building permit and were accepted an approved by the inspector and that is what you have in front of you.

Harold Boxer: We have plans.

Nancy Placona: In the property folder it looks like in '83 there were dimensions of the deck.

Harold Boxer: Is that a CO?

Nancy Placona: It is from a builder stating the deck repair was 16 x 19. Then you have from Jack Wade the building inspector at that time putting his signature on it.

Karen Schliemer: Which part of the deck?

Nancy Placona: It states here remove all existing deck planks and replace.

Karen Schliemer: On one of the drawings it looks like the deck is two different parts not connected. In one of the other drawings it shows a wrap around deck.

Sheila Green: It was a wrap around deck.

Karen Schliemer: One of the drawings shows on the side a 16 x 16 piece and the other on shows a narrow.

Howard Green: When the house was built it was a narrow deck around the house. When we bought the house there were three decks. There was one deck that went out 16 x 19 was the exact dimensions and a four foot deck around the house. What I did I took down the deck and I took down wrap around piece and I starting replacing just the 16 x 19 deck that I thought was in correspondence with Jack Wade getting permission again. Everything I did before I repaired the deck, I had him and I had a professional engineer write a letter. Everything I did I thought was to the highest possible level of reporting everything.

Harold Boxer: We still need to have the denial letter, because there is still talk about open building permits and we are not really sure what this denial is really based on.

(Inaudible Too Many People Speaking)

Robert Marino: We may be creating more confusion until we can get the building inspector an opportunity to issue a proper letter of denial.

Chairman Rose: Let's adjourn for a few moments and see if Nancy can get Jeff on the phone.

Adjourned

Chairman Rose: Can we summarize the board's understanding at this point and correct me if I am not speaking correctly. We apparently are missing a letter of denial from the building inspector to the applicant denying the permit. We are also missing the drawing that would indicate in proper form the location of the proposed structures relative to the side lot. In other words if they the shed is going to be placed….

Howard Green: The shed according to the drawing and what I sent to the village is not going to affect this and is within the ten feet.

Chairman Rose: Is there a drawing within the building department that shows that?

Howard Green: Yes.

Chairman Rose: Can we see that?

Howard Green: Yes.

Karen Schliemer: Unfortunately without the denial letter we don't know if we are just dealing with the deck issue or with the shed issue or both. WE have to respond to his concerns and what are you appealing from? You think you are appealing from a stop work order. We don't know if there was a problem with the deck or whether you can just go ahead with the deck. Maybe his only issue was with respect to the shed. Without the denial letter we do not know what the problem is.

Howard Green: I responded to his concerns with the shed. There is so much preponderance of evidence and that I just asking for the variance?

Chairman Rose: Where is the shed being located?

Howard Green: The shed is going to be underneath the deck.

Harold Boxer: The new deck o the side?

Howard Green: The replacement deck. There is nothing in the back. It will be 10 feet from the property line.

Harold Boxer: We understand you, but in order to…

Howard Green: I responded back over two weeks ago to the building department. You have my letter here answering all the questions. I have the drawing here that shows it is ten feet that ties into the new survey.

Chairman Rose: Where is the drawing that shows that location?

Harold Boxer: There is none. We are talking about from an architect or engineer that would show where the deck would be going. This doesn't show the shed under the deck.

Howard Green: I am saying to you that I filed a permit and I don't know why the shed is coming before us here.

Harold Boxer: We don't know what stop order was issued and we don't know what you are appealing. I know what you say you are appealing, but we need an official document from the building department so that we then can rule on the denial of your variance. The first step is to have the building department come by and look at the plans and see that it is into the side yard setback and deny your building permit and then come back to us and we decide whether we should grant you a variance allowing you to go into the set back area.

Karen Schliemer: Or if the shed is ten feet off the property line then you don't need a variance.

Howard Green: I am not asking for the shed. All I am asking for, the shed is not on the variance according to this. You have the letter that I sent to the building department?

Harold Boxer: Yes.

Howard Green: Isn't it the responsibility of the Village and Jeff should be here at this meeting. Everything that was to be done I have done. I just don't think this is fair. This is unmerciful and unbelievable. I am not trying to be rude to you sir.

Harold Boxer: I understand. I am not going to give an answer to that one, because it will go where I am not supposed to go.

Howard Green: This is so unbelievable.

Chairman Rose: Unfortunately our hands are bound by the state and village law as to how and what we can do. You may have been responding to his memo and the only thing that is says and would have any bearing on our committee is that a revised property survey is required to show the location of the shed and deck as it appears that a variance would be required.

Howard Green: When I spoke with him he said that this survey would be fine.

Chairman Rose: That does not meet the requirements of the Zoning Board. A survey is not a plan and a survey is meant to show what has been built.

Howard Green: That is what I built the replacement deck with the survey. The deck is about half way done. The survey person came in and I am responding to what Mr. Econom said to do. I am following his instructions and to get a survey. The reason that you have that plan there with the deck is because the guy who is doing the survey sees the deck there.

Karen Schliemer: If you take a look at the application that was filed it says we are applying for a variance to permit the replacement of deck and erection of shed. We have absolutely no information on the shed at all.

Howard Green: Can I just modify? The shed is within the 10 feet according to the survey.

Harold Boxer: Is the side line correct?

Howard Green: It is clear.

Harold Boxer: Is it staked so that you knew where your side line is?

Howard Green: The survey person said in his drawing he has it. If you take the angel of the distance to the house on the two points you see the number of inches that the property drops back. You have the distance here of 18'9” and this is 23'6”. So if you divide one by the other you know how much the property drops back. The house is straight so you have 16' going out here and this is 7'.62” and in my letter to Mr. Econom I explained that the deck is within the 10 feet. So the shed is within the 10 feet. I am perfectly willing to have the shed within my property and seek a variance for the shed. I would like to just get the variance for the deck. The deck problem is it is 6 feet instead of 10. All I am seeking is permission for that. The shed I will file all the permits. Everything on the shed will be on my property; it has nothing to do with this variance. If I can't get that extra foot so be it. I will waive any right there. All I am seeking those 5 feet of which there are no neighbors and that is not a problem and it is the exact footprint that you saw in 1983. I am just calling on your mercy.

Harold Boxer: You have recited the facts correctly. We as a board have to have a denial to know what we are ruling on. I am sorry there is not one in there and until we get one of those you cannot appeal anything because there is nothing to deny. You are asking us what the building inspector would do is look at the plans and say yes or no you can build it. Then after he decides and should it be no then he writes a letter to you and says you cannot build because of the following. Then you come to us and we look at it.

Howard Green: I think this is different. Let me tell you what I mean is different. You have in the village records a document that they saw my plans and the village engineer and everybody approved the deck. The only possible thing and you have a copy of the approved permit. If you have an approval of the permit then he should have no problems. Then he discovered at some point later on that there was no document in the file that the deck was five feet to far. So the only possible thing that could be if we apply the logic to approve the five foot variance. That is all I am seeking is the five feet. The shed will not be there. The shed will be filed under normal permits. If there is any problem he will tell me in letter. In the letter it is 10'.4”. The shed is not a problem any more. I took that off the table. All I want is the five feet. That is the only possible thing why we would be here. You have a building department accepting this thing and inspections.

Harold Boxer: If they have accepted it then there is nothing for us to rule on.

Howard Green: The only thing they did not accept is the extra five feet.

Harold Boxer: Which we don't have something from them stating that.

Howard Green: Can't we get this guy down here? Who is this guy that is so disrespectful of me a village taxpayer not to appear here?

Nancy Placona: It is not his responsibility to appear at the Zoning board meetings.

Howard Green: He told me that he would be available. He was responsible to get this letter out.

Nancy Placona: He wrote this memo under the assumption that the board would accept it as a denial.

Howard Green: This is so unfair and so unmerciful and unbearable.

Chairman Rose: I think those issues you would need to take up with the village itself, but not his board. We don't have the power to do something that is not based a drawing. There are three building permits mentioned. Were three permits issued?

Howard Green: No. What I did I repair a large room which we were going to use as a recreation room and or a bedroom. I did a new bathroom and I enlarged the closet. Those are the three permits. I had a licensed electrician and a licensed plumber and a contractor. Everything I do has been documented.

Karen Schliemer: WE have this issue that we cannot resolve at the table right now.

Howard Green: There has to be someone in the village that we can contact.

Karen Schliemer: We can't create this piece of paper. We want to help you. We really do. I think the people at this table wish they could do what you ask, but we can't. So we are trying to figure out what the next best thing to try and accomplish your goal. What we are talking about is I don't see how we cannot ask you to come back. I think we have to resolve the issues. I think we have to get that proper letter in order to know how to respond and ask for a drawing. Even a hand written note from you saying that you are withdrawing the shed. I am not building it.

Howard Green: I am doing the shed. I am within the boundaries. I have already filed that document and the building department has that information.

Karen Schliemer: You are withdrawing the issue of the shed from your application.

Howard Green: Right. I can do that now or anytime you want.

Karen Schliemer: That is fine and it is on the record. We need this one document. So the question is when you come back and we will try to see what we can do to leave this open to mesh dates and put you out of your misery as quickly as we can.

Howard Green: Is it not possible for you to designate somebody to get this letter from Mr. Econom?

Karen Schliemer: We are going to ask for it.

Harold Boxer: Is Austin back to work?

Karen Schliemer: Yes.

Nancy Placona: I have Jeff Econom on the phone. Would the board like to speak with him on speaker? He has questions if you would accept a verbal and then when he returns from vacation follow up with a letter for denial?

Karen Schliemer: The problem is that our public notice is incorrect, the application is incorrect. I think that there are too many problems that need to be correct to go out on a limb and do this again.

Harold Boxer: If we leave it open there would be no need for a notice of publication. I have no problem with the notice and all the neighbors got a card and nobody showed up to speak. I think we can get around that one.

Karen Schliemer: I think that it is also a question of the public notice refers to a letter of denial dated 1/23/08.

Harold Boxer: So the question now is can….

Chairman Rose: I have no problem back dating.

Harold Boxer: If we take a verbal someone will have to take it down word for word.

Nancy Placona: I have it on tape.

Howard Green: Is it possible to hear his verbal and get a back dated letter?

Harold Boxer: It is something that we would have to make a decision on.

Chairman Rose: The first permit you were granted was for the deck?

Howard Green: Yes.

Chairman Rose: And the two others were internal work?

Howard Green: It was an electrician and a plumber. I believe it was four permits.

Jeff Econom: Via phone.

Harold Boxer: The problem we have Jeff is that there is no denial in the packet so we do not know what the appeal is being taken from.

Jeff Econom: I apologize for that. It was one of my first since I have been with the village. What the issue is a five yard setback which is the reason for the variance. Do you want to take everything over the phone with me? I am on vacation right now. Monday when I return I will get a letter out. I don't want these people to be delayed on something that was in essence my fault. I will now know for next time. Is there anything that we can do for them to keep the project going for them, I would greatly appreciate it.

Robert Marino: Is there side yard setback issue with the deck and the shed? Or is just the deck or just the shed? Do you recall?

Jeff Econom: It would actually be with both. From when the house was originally built there was no large deck on the house. It was built sometime after a C of O was issued. These people came in to put a shed underneath the deck which would have involved the side yard setback. When I reviewed that file I noticed that the deck never had a permit. In essence both of them would require a variance for side yard. If the deck was there but never legalized, I am just trying to clean it up so when these people go to sell our records are straight.

Karen Schliemer: Jeff, do you know if a variance was ever granted for this deck?

Jeff Econom: All the research that we did, a variance did not come up. Apparently a variance was never granted. According to these people the deck was there so prior to them purchasing the house, and the c Of O someone put this deck on.

Chairman Rose: We would have to see the old code to see if anything had changed.

Karen Schliemer: Austin would know.

Howard Green: I think that it had not changed. I believe it was always ten feet. I agree with Mr. Econom. I believe what he is saying is to send the letter out and the only issue is the additional five feet and that the deck is five or six feet away from the property line rather than ten feet. What we are seeking and the only problem with this was and Mr. Econom said is the five feet and that is all we are seeking. I am wondering if he could back date a letter appealing to you and if that would be sufficient.

Harold Boxer: We could hold the meeting open and receive the letter and require them to get a new building permit.

Chairman Rose: Does that make sense? Jeff we would need you to issue a letter as soon as you return dated January 23, 2008, indicating a variance of six feet required. The deck would only be four feet from the property line.

Karen Schliemer: Basically the denial of the building permit or a rejection of the existing permit because of the question of the setback. Jeff I don't know if you have any real drawings here that show exactly what we are trying to construct.

Jeff Econom: There were drawings submitted for the shed and he had drawings in the file. He had submitted a building permit, and I can get them to you first thing Monday. Then they could proceed for a new permit for the deck and the shed.

Harold Boxer: the shed is no longer in play because they withdrew and it would build within the ten feet.

Chairman Rose: The shed may be part of the building permit but the variance would only be for the deck. We would only need to issue the variance for the deck.

Jeff Econom: If they want to get a letter in and that is what they are going to do then I can just write the letter for the variance for the deck

Chairman Rose: Correct.

Harold Boxer: Just put your current January 23^rd memo in the form of a denial. The really is no back dating you are just converting you inter memo to an official denial.

Jeff Econom: Ok. I will do that as soon as I return on Monday.

Chairman Rose: I think we are done. Go back and enjoy your vacation. Thank you for letting us interrupt your vacation and we are hoping that everything can be resolved quickly.

Jeff Econom: I apologize for the confusion and I have learned from this one and I am sure it will not happen again.

Harold Boxer: Can we all get back here Monday?

Howard Green: We will be in China.

Harold Boxer: Will your daughter be available?

Deborah Green: Yes I will be available.

Howard Green: Can you just sum up? The shed we will file a permit.

Harold Boxer: You will have to get a new permit for the shed. You will have to get a new permit for the variance provided that we vote after we see the letter on granting the variance.

Howard Green: If I just could take a quantum leap so I do everything according to your wishes. When I come back I am going to file a permit to do the deck assuming I have your approval. Then subsequent project I will have to file another permit for the shed?

Harold Green: You can file for a building permit for the shed.

Howard Green: They have a building permit that they have not acted on.

Nancy Placona: That permit is on hold until a decision about the variance has been reached.

Harold Boxer: You should close out the building permit for the shed that encroaches.