ZBA Minutes 4-15-08

MOUNT KISCO ZONING BOARD OF APPEALS

Minutes

Tuesday, April 15, 2008

Mount Kisco Village Hall, 7:45 P.M.

Members Present: Donald Rose

Robert Marino

Michael Zucker

Harold Boxer

Staff Present: Karen Schleimer

Meeting opened at 7:45 P.M.

Approval of Minutes - September 18, 2007:

Motion: Robert Marino

Second: Michael Zucker

Aye: Harold Boxer

Aye: Robert Marino

Aye: Michael Zucker

Aye: Donald Rose

Approval of Minutes - February 19, 2008

Motion: Harold Boxer

Second: Robert Marino

Aye: Michael Zucker

Aye: Harold Boxer

Aye: Robert Marino

Aye: Donald Rose

Final Action:

Resolution: Howard and Sheila Green

212 Forest Drive

Mount Kisco, New York 10549

ZBA Case No. ZBA08-01

Motion to Accept and Approve:

Motion: Harold Boxer

Second: Robert Marino

Aye: Michael Zucker

Aye: Robert Marino

Aye: Harold Boxer

Aye: Donald Rose

New Case:

1-800-Mattress

383 North Bedford Road

ZBA08-02

Present:

Anthony Monteleone, Monteleone & Monteleone, Attorney for 1-800-Mattress

Paul Josephson, General Manager, 1-800-Mattress

John Oliva, Owner, C&M Signs

Chairman Rose: As far as I know all of the materials for the application are there and green cards have been received from the neighbors. This is actually an appeal of an action taken by the Building Inspector, so it's not like some of our other cases, but there was a Notice of Denial for permit to erect a sign on March 17, 2008 issued by the Building Inspector. The basis of the denial as stated in the letter.

Chairman Rose then read a letter dated March 17, 2008 to Anthony Monteleone from Austin Cassidy regarding a Notice of Denial - Sign Permit Application.

Chairman Rose: Clearly that is the action the applicant has taken, and they have met all of the requirements including the time constraints. I would invite the applicant and interested parties that are so designated to come up.

Anthony Monteleone: John is the designer and installer of the one sign that currently exists on the property. I have previously submitted a memorandum together with a series of attachments, photographs and such, and also submitted talking points. The Board has both of those. I'm going to go through the talking points. Consistent with what the Building Inspector stated as the reason for the denial, that being aesthetics, in my submission, the Notice to the Administrative Official of the Appeal of Building Inspector's denial, I stated on Number 5 of that Notice, "Case Law holds that while aesthetic considerations do constitute a valid public purpose where denial of a variance is sought to be justified on aesthetic grounds, the public interest is not necessarily as strong as those cases involving threats to public safety." Care must be taken lest the state trespass through aesthetics, and there is a case, DeLena v. Board of Appeals of Hempstead, wherein the Court of Appeals held that in the absence of specific authorization in the zoning ordinance, the respondent Board was without power to deny an area variance on aesthetic grounds. And that's basically the heart of our appeal here tonight. There is presently existing on the building a sign which is identical to the sign which the Board subsequently denied for the side of the building. This is the sign that is in existence on the front of the building, approved by the ARB. They then denied a second sign for the side of the building, and I'll take you through the code, based on aesthetics. Aesthetics are color, design, appearance, and same identical sign. In my talking points I reference Article 10 of the Village Code which states that the Board of Architectural Review shall consider the appropriateness of a proposed building structure, alteration or addition in relation to the established character of other structures in the immediate area. That's their criteria. In the immediate area of this 1-800 Mattress store is the religious store attached; same building, has two signs. One in the front one on the side of the building. Actually, larger in size in proportion to the size of those walls than the sign we are seeking here. There are photographs within the submission in regard to that. Article 110.49 B is the only section of the code which specifically refers to signs. When I say the code, that part relating to the ARB. It says "signs which are placed on or attached to a building or structure state the section states the criteria, namely striking dissimilarity, visual discord or inappropriateness with respect to other structures located on the same street are the criteria for denial." I kind of paraphrase that. That's the only way it came out, at least to make sense. If you apply that criteria to this 1-800 second sign, there is no striking dissimilarity, there is no visual discord, and there is no inappropriateness to the other structures located on the same street, which is 117, which is the most heavily trafficked, most diverse commercial street in the Village. We submitted photographs of not only the religious store, which has two wall signs; Patio.com, which has three separate walls signs on three separate walls, Exxon has two signs on two separate sides, Sleepy's has a wall sign and a separate free standing sign, and they are our competitors and they are a spit down the road, and really, the reason and the need for this sign is that when you are coming south on 117, toward the Mount Kisco border; and this property is right on the border, there presently is a free standing sign of Diamond Properties advertising the old Grand Union. There are other signs; you don't see that 1-800 sign on the front of the building until you're on top of it or by it. Whereas the sign that we're asking for on the side could be seen from a relatively decent distance to give someone in a car notice that the store is there. And people do seek out this store. Mattress stores aren't impetuous type of buyers. They know they want to buy a mattress, they're looking for 1-800 Mattress, they don't know where it is, they're looking for a sign. Here they're by it, step on the brake, whatever. That could be a safety issue. Going beyond that, we also have Dunkin Donuts having two signs. Then we get to the second point; the criteria under Section 89 of the Code for signs. This is under the sign ordinance where previously I was referencing the ARB authority. And, it states that, "prior approval of the Building Inspector or until approval of the Board of Appeals from an adverse ruling of the Building Inspector." Section 89.5 refers to the size and number of signs. This particular sign conforms in all respects to the size of an appropriate side and the number of signs, one on each separate wall. I've stated a number of subparagraphs there, most of which do not apply. Section 89.8 states "wall signboards shall be parallel to the face of the building an applied to a wall of the building, and no part of the sign may project more than 12 inches." We comply there. Section 89.18 states appeals and variances, where we can appeal. Building Inspector can deny, we appealed in a timely fashion. Basically, as indicated in my talking points, we have pointed out how the ARB has not acted within the criteria under which they must act. We then come to the issue of the Zoning Board of Appeals and what your authority is. I'm not going to lecture you on your authority, but basically in this particular case, you can affirm, reverse or modify. It's the same standard as an area variance and the same criteria. I've set forth in my memorandum those criteria and my explanation as to why we meet those criteria and your Board as a quasi judicial Board has to decide; I respectfully submit in our favor.

Chairman Rose: The real issue, of course, is the ruling by the ARB against the sign. If every ruling of the ARB were to be appealed to this Board, I think we'd have a lot more work and probably would reduce the ARB to meaningless.

Anthony Monteleone: John and I have been before the ARB on numerous occasions in regard to signs, and this is really the first time in my case where it's been so rigid that I had to come to your board, and I did try to get the Building Inspector to reverse.

Chairman Rose: I noticed in your original application to the ARB that you were looking for one additional sign, either on that sidewall or a free-standing sign in front. Was there discussion at the ARB about that?

Anthony Monteleone: The ARB discussed a free standing sign, but they only wanted a free standing sign with all three of the stores on that one single freestanding sign. We spoke to the building owner, and he is not willing to do that. One of those tenants is in the process of leaving; their lease is up, the Brake Shop. The religious store has a couple of years to go, and 1-800-Mattress is the new guy on the block. So while that was discussed, it really never got anywhere.

Chairman Rose: What is difficult for us is to get into a line of questioning that just reopens the merits of the case from the ARB's point of view, which I don't think we want to get into.

Anthony Monteleone: Understood. Their decision was based on aesthetics, and I submit that when their decision is based on aesthetics, there has to be a basis for it. If they approve one sign identical to this sign, how can they deny this sign? That is what jumps out logically.

Chairman Rose: Yes and no. In the minutes of their meeting they did speak about there being a difference between two signs and one sign.

Anthony Monteleone: They did, and they discussed difference of signage, different signs and different size. They never got to the point of agreeing that there could be a second sign before we discussed the size of that second sign. This really shouldn't bear on your board's decision, but 1-800-Mattress actually has that second sign built. Are they going to say to you, "no, we want that one; we won't accept a slightly smaller one?" No, we're not going to do that, but we would like to put the identical sign. Your board, as I said, has the ability to affirm, deny or modify.

Chairman Rose: The one question I have for Mr. Oliva, perhaps tangential, the little gooseneck lamps that are used for illumination are shown but in a very small scale without dimensions. How far out do they project from the wall?

John Oliva: I didn't actually pick out the fixture, but I would say approximately two feet. This was a fixture that I had recommended to the electrician, which was then picked out between the electrician and one of the managers.

Chairman Rose: Is that same type of fixture over the front sign at present?

Anthony Monteleone: The ARB was very much in favor of those gooseneck illuminations rather than back illumination.

John Oliva: This would be a very common detail because the light needs to be in front of the sign a certain amount to project the light.

Chairman Rose: I just raised it because I did notice, if I read the code correctly, that that type of illumination cannot extend more than 12 inches from the wall. That's why I was asking.

Anthony Monteleone: You're right, but that's what the ARB wanted.

Chairman Rose: No, no. They can't overrule the code.

John Oliva: If we have to change the light, we change the light. I don't know how practical that would be, and I'm not even aware of that.

Anthony Monteleone: No, it is in there.

Chairman Rose: You're aware of it. I actually agree with your opinion of that, but the code is what it is. So, technically that would be an issue.

Anthony Monteleone: If you're concerned about that and you want to do a different type of illumination, we don't have a problem with that.

Chairman Rose: Aesthetically if there were to be a second sign, what certainly looks worse is changes of scale, changes of detail; when it's really the same advertisement.

Anthony Monteleone: Yes, you're right.

Chairman Rose: Board Counsel, in your experience, has the ZBA been presented with this type of case; essentially asking to reverse a decision by the ARB?

Karen Schleimer: To my knowledge, this is the first time this is happening. I don't recall this ever having been presented to this Board.

Chairman Rose: I think that it's probably a case where it should be reviewed by them. I'm reluctant to say they didn't do their homework, because that would be essentially accusing them of not doing their work.

Anthony Monteleone: I think the ARB for some months now has been, in good faith, attempting to operate under a proposed sign ordinance that hasn't been passed yet to cure some problems that they see in the existing ordinance. I can appreciate that, but you can't do that. You have to operate under the law as it is today. The applicant came in all good faith complying with all the requirements, and said, here's the sign, we'd like it approved. The ARB, and if you read their minutes you can really see where they're talking about that in both hearings, they are talking this isn't going to be permitted in the future. It may not be, but you can't deny it now because it may not be permitted in six months; and by the way, that proposed ordinance may never pass in the form you think it's currently in. So you can't do that. Really, I did not do this lightly.

Chairman Rose: In a sense, though, I believe in the Town Code if there is an anticipated change in zoning, permits can't really sneak in under the wire.

Anthony Monteleone: They would have to put a moratorium in place, or unless the code specifically says; in rare instances it does, but not in this case.

Chairman Rose: But I'm saying the thinking would be consistent. And, I believe that if we were to allow the permit through the issuing of an area variance, then it might make any new sign ordinance moot.

Anthony Monteleone: You can reverse instead of granting a variance. You can just reverse the ARB, that's part of your authority. I'll defer to counsel, but we appeal to the Zoning Board of Appeals and they have the authority to affirm, deny or modify the underlying decision. That's clear in the code and in the law. So I gave you three options.

Chairman Rose: Just for the record, Paragraph 89.18 does say exactly that. That in fact, is what we're allowed to do, which mean we're not actually granting a variance. We wouldn't be going through these five points at all, because it's not a variance to some numerical test.

Karen Schleimer: I do think, Chairman, that you may want to correspond with the ARB before you make any final decision to get some of their input if what this Board is leaning towards doing is either reverse it or modify the decision of the ARB, I think since they are the arbiter of things aesthetic, you would want their guidance. I think this Board is not generally equipped.

Anthony Monteleone: I have a little bit of a concern about that, because the ARB made their ruling. A couple of the members were rather strong in their opinions on it, and I don't think this Board should be influenced by personal opinions of ARB members.

Karen Schleimer: I beg to differ. What I'm referring to is, should this Board decide to reverse the determination that there should be only one sign, which I think, what really is before us here is. The question of, if this Board approves two signs, or over turns the ARB decision and therefore there should be two signs, the question is what should that sign look like, and I think that is perhaps beyond the purview or the input of the ARB with respect to that would be welcomed.

Anthony Monteleone: We would be willing to discuss a modification as to sign size. In fact, we have the various sign sizes here. Your board in modifying could do that, and that would kind of be like a very Solomon-type approach, because we talked about that, but we never got there.

John Oliva: Just as another point, when a new code is adopted, they won't have two signs anymore either. All of the town will change, including Bedford Road in terms of scale and quantity of signs. Even the example they use for Patio.com, they will no longer have three signs.

Anthony Monteleone: They would have to be phased out in an orderly fashion.

Karen Schleimer: It's an amortization based on several factors including cost.

Anthony Monteleone: And we would be subject to that same law.

Karen Schleimer: Provided that you don't grant a variance.

Harold Boxer: Did the Architectural Review Board get notice of the appeal here?

Anthony Monteleone: They are not required to get notice. I'm pretty sure they know.

Karen Schleimer: It clearly was published; whether they got direct notice, I don't know.

Anthony Monteleone: Yes, I can say they know.

Robert Marino: The issue is the number of signs. Apparently the code allows for the sign on the side of the building, which you propose.

Anthony Monteleone: A sign on each separate wall.

Robert Marino: The ARB's problem is not that we don't like your colors, or necessarily even your size, but we just don't like the number.

Anthony Monteleone: In fact, initially they said you can't have a second sign because it's not a public street. A side street isn't a public street. I dove into the code, and it's nowhere. They didn't like that second sign, and we were going through a whole series of reasons why they didn't, and bottom line was they didn't like the second sign.

Robert Marino: Karen, is one of the proposals in the new sign ordinance that a second sign of this type would not be permitted?

Karen Schleimer: I haven't seen the current revision.

Anthony Monteleone: No one has seen it, and I said, well, show me the new code.

Karen Schleimer: It hasn't been adopted, it hasn't been finalized, and it hasn't been presented. It could be two years till it's finally in place; so I think regardless of what it says, the real issue is whatever it says, depending on how this Board takes action, either you grant a variance, which runs with the land and might permit this second sign to remain forever, regardless of whatever is adopted. If you do a modification or a reversal, it would then be subject to the terms of whatever it is that's adopted and this property and this sign would be subject to any subsequent revision of the sign ordinance.

Anthony Monteleone: That's why I made it clear in my memorandum, you have the right to reverse or modify or grant a variance.

Paul Josephson: I would humbly like to ask a question. What is it, gentlemen that we did wrong?

Donald Rose: I'm not aware that you did anything wrong.

Paul Josephson: Thank you very much. Because we're good citizens, we're a very moral company and I can't tell you how many people walk into the place and say, "we passed by because we had no idea you were here." If it wasn't for the children in the car telling them to look backwards; because of the way it is. That store always had a sign. The box is still on the side. If the sign was up it would be so much more of a safety factor. I sit here and I wonder why. We didn't do anything wrong. We gave everything that we were supposed to do by the letter.

Chairman Rose: I will say, however, that anyone who has ever gone into the Mount Kisco Square and CVS, Blockbuster comes out at the light is looking directly at your store. You couldn't be in a better place.

Paul Josephson: But they have to go in there, sir. We're a destination store. We're not an impulse store. Most home furnishing companies are destination stores. The way that we can do things is by having a sign that meets code and meets approval. As far as we're concerned, we've done everything by the letter of the law.

Robert Marino: You understand our concern. We don't want to step on the toes of the ARB for legal and other reasons. They are our fellow Board members here and they take their job seriously. Having said that it does appear to me, and I don't want to speak for the rest of the Board, but I think this is the kind of thing where you've got a couple of things at play that ameliorate any one possibility of this becoming a typical action of people before the ARB saying, "well, you've overstepped your boundaries, we're going to go see the Zoning Board." This seems to be a fairly clear cut case. It's not that they have a problem with that the sign is lighted improperly, or it's garish, or the color is outrageous or it's out of keeping with what is around it. It's simply the number of signs. That seems to me a matter of zoning code and that's where we come in. If you read the minutes of the ARB meetings, they are rightfully concerned that they are working with a weak code now, and they want some changes made, and I would assume that one of them will be to address the numbers of signs; not on a particular face but simply per business. If we were to simply modify, and with the new code coming in, these folks would have to deal with that just like every other business in town. On a personal basis, I have a tough time when the law says one thing, and while we might like to do another, it's tough for me to not at a minimum appreciate the argument that is being made by the ARB here.

Harold Boxer: I concur. To me the law is the law. The law allows two signs and being that I've never been not outspoken, I have no problem telling the ARB they went way beyond what they have to do, because I've been on that Board before, and we'll leave it at that.

Chairman Rose: I think where I would come in on this is through modification of the ruling, I think that what we are going to say is that the code as it is allows two signs. Then send it back, request the ARB to review the matter again with the understanding that the present law allows two signs and if a new law comes in; well, that's all speculation right now. We don't know what it's going to say.

Karen Schleimer: So basically, it's a modification of the ruling consistent with Section 89.5 E of the laws of the Village of Mount Kisco which is the one that says no more than one sign per wall shall be permitted. Modify the ruling consistent with this subject to the aesthetic directions and determination by the ARB.

Anthony Monteleone: But that puts us back before the ARB, where they may try to reinvent the wheel, and I don't think that's fair to the applicant. I submit that your Board has the authority to modify, and one of the ways you can modify is to permit a second sign and permit a second sign of smaller size.

Chairman Rose: I disagree with that because then we are stepping on the toes of the ARB.

Harold Boxer: Why is that any different than the Supreme Court stepping on the toes of the Zoning Board? In this case the stature has made us a quasi court.

Anthony Monteleone: Interpret the code and act on it.

Chairman Rose: In that case, we would then need some input from the ARB.

Karen Schleimer: Yes. I think that's one of two ways. I don't know that this Board has any expertise in color, design size or lighting.

Harold Boxer: What if we send it back to the ARB saying you have to give them the second sign; just figure out where it's going to be.

Anthony Monteleone: That we can live with.

Chairman Rose: That's essentially what we're saying.

Anthony Monteleone: Yes, but I think we have to say it specifically. You shall approve a second sign on a second wall.

Karen Schleimer: And then would, I think have the right to go back, you'll forgive me, and juggle with the size of both signs.

Anthony Monteleone: Well, that's going to be a battle. They already approved one for size, now they're saying we don't want the second one, we want both changed. That's going to catch my eye.

Karen Schleimer: I don't know what they're going to do.

Anthony Monteleone: I hope they are going to say pick one of the top three.

Paul Josephson: We're not looking for any garish sign or anything any different than exists right now.

Harold Boxer: We understand, but we can't tell you what kind of sign. We can tell you you can have a sign, they have to tell you what kind of sign.

Paul Josephson: I appreciate that.

Anthony Monteleone: So if we make it as clear as possible you shall approve a second sign on a second wall may be consistent with the first sign without saying identical.

Karen Schleimer: I don't think this Board wants to go that far. I think you just want to indicate that it's necessary that there be two signs consistent.

Paul Josephson: Gentleman and Madam Counsel, could we also add that the second sign has to be reasonable in size?

Karen Schleimer: No. That's beyond.

Anthony Monteleone: Reasonable is my job.

Chairman Rose: I think what we should say is that the second sign is allowed under the code and that the ARB should not disallow the application because of the number of signs, because they do fall within the code.

Karen Schleimer: We'll figure out an artful way to make it consistent with that section which permits you to have two signs, and I think this Board is not going to go so far as to deal with the aesthetics.

Chairman Rose: I think considering the sensitivity; obviously we wouldn't want to antagonize another Board, as I understand we would not want them to antagonize us.

Anthony Monteleone: I understand.

Robert Marino: The sense of the Board is that the ARB does a good job, and they have the desire to do even a better job. It is my understanding that they're working hard on this new signage. And they do a fabulous job, but I do think this is one of those strange instances where we're really bound.

Chairman Rose: The codes, for better or worse, are what they are.

Robert Marino: And these folks are entitled to a sign on that wall. The applicant hasn't been here pressing us for a variance that would then lock this in stone forever. That was a nice gesture on your part and made our job easier.

Chairman Rose: I'm not sure if any particular vote is brought forth because we really need to have a resolution that we will then agree to, and make sure that it has the right components.

Robert Marino: We might just want to take an aye that the law, as it is currently written, allows the applicant to have a sign on the two walls as they are requesting.

Resolution: To amplify the thinking and appreciate the action of the ARB trying to make the town better looking and thinking about a future ordinance that they hope to have in place.

Motion: Michael Zucker

Second: Robert Marino

Aye: Harold Boxer

Aye: Robert Marino

Aye: Harold Boxer

Aye: Donald Rose

New Case:

Jeffrey Getman

42 Marion Avenue

ZBA08-03

Present: Timothy Lener, Architect

Jeffrey Getman, Property Owner

Chairman Rose: Here we have in our packets the application to the ZBA for variances and the particular points that were raised by the Building Inspector. The sections that the Building Inspector found to be in violation were Section 110-9C1F3, requiring a minimum side yard setback of ten feet from the side lot line in this district, which is the RS9 Low Density Single Family District. This legal, non-complying building is significantly non-parallel with the side lot line, and an angular portion of the building is located within the northern side yard setback. Regarding that portion of the roof relevant to this instant case, the intrusion ranges from 0 to 2.5 feet plus or minus, over a distance of nearly 28 feet. The roof of this area would be increased in height as part of the proposed action. Section 110-35D requires a variance in order for a building permit to be issued authorizing this increase in the roof height as a portion would occur within a required side yard setback. Now, I believe application for the denial was appealed within the 30 days, and proper public notification has gone out, fees have been paid, green cards have come back.

Tim Lener: I appreciate that Austin wrote his denial in a certain way about the angulations of the house to the property line, and to graphically illustrate it. The highlighted portion on the site plan and on the floor plan shows you exactly the amount of area we're looking for. It's a tiny pie shaped section. We are raising the roof of the house to just a normal eight foot height, so the outside walls would be standard height. Here are some photographs of the house, front and back.

Michael Zucker: No change in the footprint?

Tim Lener: No change in the foot print.

Chairman Rose: How old is the house?

Jeffrey Getman: 1939.

Harold Boxer: What happens with the dormers?

Tim Lener: They're gone. No dormers. The side view is just a straight roof line right across. We are keeping a break between the upper and lower sections with a change in the siding, and keeping that kind of same feel of the house, because the roof pitch is staying exactly what it is.

Harold Boxer: Are you still going to have the roof over the front porch?

Tim Lener: Yes. Not changing.

Chairman Rose: The shingling?

Tim Lener: The shingling is on the first floor.

Chairman Rose: That's clapboard now, so is that being redone?

Tim Lener: The lower section is cedar shingles. The upper section is going to be clapboard. The houses to either side are both higher elevation roof lines. This is the house on the left; the more important one is the one to the right. That has a full height second floor, so we're going to be very similar to that; to the north.

Chairman Rose: It would appear that that house is nearly as close to the lot line as the property is.

Tim Lener: It may be. It's a tight neighborhood.

Harold Boxer: There is no consistent architectural styling in the neighborhood.

Tim Lener: No. The houses across the street all seem to be bigger style houses. The only little one stories are on this parkway side.

Chairman Rose: Have you gotten any reaction from the neighbors?

Jeffrey Getman: Everyone is okay with it.

Chairman Rose: And, for the record let it be known there are no public members here at the hearing, and so clearly there is no opposition either written or voiced.

Robert Marino: What is the current square footage?

Jeffrey Getman: About 2100 square feet or so.

Tim Lener: You have to take into account that the second floor does have living space up there now. It's all under sloped roofs. This overall foot print is 1,075, so I'd say probably up there now is maybe 750 or 800.

Robert Marino: So you have something like 1800 total presently?

Tim Lener: Between the first floor and this floor will be about 2000 probably.

Chairman Rose: Presently on the east side, you do have some tiny windows, I guess.

Tim Lener: They are not that small actually. They're set up high in that room.

Chairman Rose: In effect, the second floor area is already there. It just can't be used because of the low eaves so it's squeezed. The roof would be the same slope as the present roof?

Tim Lener: Yes. Same slope, same overhang.

Chairman Rose: So it would be higher by about eight feet or so?

Tim Lener: Yes.

Michael Zucker: I drove by today and I have no problem with it whatsoever. It is completely consistent with the community.

Tim Lener: Yes. We are trying to maintain the cottage. We even addressed a little gingerbread on top with the brackets.

Harold Boxer: Is this a little window over here?

Tim Lener: Yes, it's a little shed roof off the back, and that's where we snuck the closets for the girls. They can each have a little walk in with a little peek a boo windows out the back. That foot print below also already exists. It's not involved in the variance, but it's already there.

Chairman Rose: Presently, is this really only used as attic space?

Jeffrey Getman: No, we have some tight bedrooms up there.

Tim Lener: And there is a bathroom up there now.

Chairman Rose: Can counsel think of any other questions that the Board should ask?

Karen Schleimer: It's just a question of whether you want to quickly run through the factors.

Tim Lener: The letter; the principal points address all five factors.

Karen Schleimer: You might want to just take judicial notice of the submission.

Chairman Rose: Rather than read the letter can we just request that that portion of the letter that addresses the five points be incorporated into the minutes, and referenced as being taken from the applicant's letter?

Karen Schleimer: That's fine.

Chairman Rose: Does anyone on the Board have any problem with any of the arguments made in those, because the thinking is there. We'd be going through the same words.

Robert Marino: No, I have no problem.

Harold Boxer: We should make that a requirement; make them fill out the five points.

Karen Schleimer: The staff in the Building Department is extremely helpful in guiding applicants, even applicants who aren't represented in terms of making a proper submission. The only thing I would say is the self created item. I would probably beg to differ since the house was purchased, but of course, that's not dispositive one way or the other.

Chairman Rose: I guess by definition it is self created, but under the state law if we find that it was self created that doesn't give us reason.

Motion to approved variance for 42 Marion Avenue, ZBA08-03 based upon the five points of the submission, with the comments on Point Five, that it was self created, that the house was in violation of the zoning at the time that the present applicant bought it.

Motion: Harold Boxer

Second: Robert Marino

Aye: Michael Zucker

Aye: Robert Marino

Aye: Harold Boxer

Aye: Donald Rose