Board of Adjustment Hearing
June 8, 2015
The Clarkson Valley Board of Adjustment, pursuant to notices posted, met at City Hall in the Clarkson Executive Center to consider three agenda items.
Board of Adjustment Members present were:
Jim Barry, Chairperson
Phyllis Newmark, Alternate
Karen Koshak, Alternate
The City Attorney, Mr. Patrick Butler attended and the City Clerk, Michele McMahon recorded the Minutes. Board Members Darryl Brody and Paul Mercurio, and Alternate Member, Terry Rosenstrauch, were unable to attend.
The City Attorney and Chairman explained to the petitioners they are present tonight to ask this Board to permit a variance from the Clarkson Valley Code 405.060.E.3. establishing that no building (or structure) shall intrude upon the area required for front, side and rear yards by proving practical difficulties or unnecessary hardships in carrying out of the provisions of the code due to topographic or other conditions.
A Board for these adjustment requests consists of five members and a concurring vote of four (4) members of the Board shall be necessary to effect a variation in the Zoning Ordinance. The Chairperson then asked the petitioners if they had objections to any of the Members of the Board of Adjustment, to which they responded they did not. He then asked the Board Members if they had an opportunity to view the properties to which all stated they had. After the meeting was called to order and protocol established, the petitioners, friends and neighbors and a landscape designer were sworn in. Jim Barry read the Notice of Public Hearing for all three agenda items.
1. To consider the request of:
Tim & Sheri Ferry
6 Fairlake Drive
to allow a brick fireplace to encroach 20.5’ into the 50’ rear yard setback. A pergola will encroach by 14’ into the rear yard.
2. To consider the request of:
Bernie and Carla Squitieri
2156 Kehrs Mill Road
to construct a fence to encroach 25’ into the west side yard, 15’ into the east side yard and 50’ into the rear yard.
3. To consider the request of:
1465 Blue Roan Ct.
to replace an existing wooden tie wall with stone to encroach 20’ beyond the front building line and 20’ beyond the side yard setback.
Mr. Todd Mass introduced himself as the attorney representing Mr. and Mrs. Tim Ferry. He also introduced Jason Huckster who is the Ferry’s contractor that originally constructed the fireplace. Mr. Massa handed out packets and directed the Board’s attention to pictures of the existing fireplace. He reminded the Board of the previous Hearing whereby the request was denied. He stated they are present tonight to request a variance to the back property line and additionally seeking a variance to construct a pergola for the Ferry family’s entertaining purposes. He said the area where this is situated is located is directly behind the house and the Ferry’s have effectively attached the area to the home by virtue of the patio.
He stated his understanding that after the first Hearing, the Board invited the Ferry’s back with an alternative plan. Another option would be to remove the fireplace which would cost approximately $22,000; or to move it, which would cost even more.
Mr. Massa then discussed the Ferry’s hardship by directing the Board’s attention to the survey. He said they have a trapezoidal-shaped lot and the depth of the lot is the hardship. Board Member Hauser asked if the Ferry’s received a variance before they constructed the fireplace? Attorney Massa stated they did not and said the Ferry’s acknowledge making that mistake. The contractor has also acknowledged not going through the process and failed to obtain a permit before constructing the fireplace. Mr. Ferry then stood and gave apologies stating he and his wife believed the contractor had taken care of all permits. A question was asked about the structures themselves and Jason Huckster, the Ferry’s contractor, informed the Board the fireplace is strictly wood burning and the pergola being proposed is aluminum with a white powder coat finish. It would have electricity running to it to open and close the louvers.
Mr. Massa then asked the Ferry family members, and friends and neighbors in the audience who will ultimately be sharing this entertainment area with the Ferry’s and who came tonight in support of their request to please stand. There were over thirty proponents in the audience that stood.
The Chairman asked if any of the proponents cared to speak at which time five members of the audience spoke in support of the proposal: Joe and Debbie Mayberger, Jim Duncan, Julie Whiting and Francis Babb.
The Chairman called for opponents, to which there were none. There was no one from the City to speak on the proposal.
Board Member Koshak asked if any important inspections were missed while being constructed? Attorney Massa responded by saying he spoke with the fire marshal about it and was told as long as the fireplace was 10’ from the house, it would be alright with their entity. Contractor Jason Huckster reported there is an 8” deep, poured concrete foundation under the fireplace with 10 piers that go 3-1/2’ deep. Board Member Berkeley asked if the Clarkson Valley Building Commissioner was okay with the fireplace construction. Mayor Douglass stated the Building Commissioner was at the Ferry’s house for a final inspection on the newly constructed house – and only then found the fireplace already constructed, beyond the rear building line. There was no building permit for the fireplace – hence no inspections. Board Member Newmark asked if the Ferry’s were granted a variance for the proposals, could we make it contingent on exposing the foundation and some of the footings and having the inspector give final approval of the structure. Mr. Massa said, most definitely.
Discussion ensued as to whether an inspection is to be done or not. Board Member Koshak said she was comfortable that no inspections were accomplished as long as there is no electricity or gas running to the project, further stating if it were to fall down that would be their problem and not ours. A vote was taken whether to make the Board’s decision tonight contingent on an inspection, with the following result: Ayes: Hauser and Newmark. Nays: Barry, Berkeley and Koshak. It was determined the decision tonight would not have any conditions attached.
The City Attorney, Patrick Butler explained to the Board Members the intent of the zoning code and read the merits and conclusion portion contained therein.
Chairman Jim Barry read the Agenda item again and then asked the Members for their factual determination of the proposal to allow a brick fireplace to encroach 20.5’ into the 50’ rear yard setback. A pergola will encroach by 14’ into the rear yard to which: question (1) three are, two are not, (2) four will, one will not, (3) three will, two will not, (4) five will not, (5) five will not, (6) five will.
The Chairman then called for a vote of approval/disapproval to grant the desired variance to allow a brick fireplace to encroach 20.5’ into the 50’ rear yard setback. A pergola will encroach by 14’ into the rear yard with the following results: Yeas: Berkeley, Hauser, Newmark and Koshak. Nays: Barry.
The Chairman declared the Ferry’s request for variance as having been approved. Jim Barry then advised Mr. and Mrs. Ferry the variance granted by the Board is based upon what took place tonight. Any change making the variance greater than what was presented will negate the variance that was granted at this meeting.
Jim Barry read the second agenda item to construct a fence to encroach 25’ into the west side yard, 15’ into the east side yard and 50’ into the rear yard and gave the floor to the petitioner, Bernie Squitieri. Mr. Squitieri introduced himself and his landscape contractor, Bill Weishaar of Baxter Gardens. Mr. Weishaar handed out a landscape plan to the Board Members and directed the Board’s attention the existing landscape shown on the drawing. He said there is a 20-year-old mature tree within the existing landscaping and a fence has to be constructed 4’ from this tree. If Mr. Squitieri were to construct the fence in that location, there would be a jump hazard, further stating someone can climb the tree, jump over the fence, and then drown themselves somehow in the pool. He proposed that the fence be constructed outside of the existing trees tucked between the existing hedges at the edge of the driveway. Otherwise, he stated, the mature trees would need to be removed at a cost of $15,000 to $20,000.
Chairman Barry had a question regarding the existing trees and asked if they were all on the left side of Mr. Squitieri’s home as you look at it, to which he responded affirmatively. The landscaper reiterated the potential climb hazard if the fence were to be legally located, stating once again, if the fence is outside of the trees, no one could climb a tree, jump over the fence, and get into the pool area.
Mrs. Honora Schiller identified herself and asked Mr. Squitieri why he is requesting the back fence to be placed on the property line? Mr. Squitieri gave his interpretation of an outdated code that has subsequently been changed, saying that he has to “enclose the property or the pool” He said he can’t enclose the pool by itself because of the way the pool was built. Mrs. Schiller corrected him and said everyone fences in their pool. No one fences the entire property. To which Mr. Squitieri stated he understands that, but he has the permission of all the adjacent neighbors. Chairman Barry asked Mr. Squitieri if his answer was that he thought he had to enclose the property opposed to the pool? Mr. Squitieri said if he enclosed just the pool, it wouldn’t leave much yard back there. Mr. Weishaar mentioned if they were to install the back fence on the building line, the yard would be cut into two pieces. Aesthetically, it would look better if you placed the fence behind the woods on the sides and into the landscape area.
Chairman Barry made a motion to request the applicant to amend the application by moving the rear fence from the property line up to the building line. Mr. Squitieri was unsure about agreeing to the amendment but eventually acquiesced. A voice vote was taken with the following results: Ayes: Barry, Hauser and Newmark. Nays: Berkeley and Koshak. Mr. Barry reminded Mr. Squitieri’s landscaper this Board does not grant variances for aesthetics but rather to review the necessity of eliminating a hardship in complying with building lines. The City Attorney, Patrick Butler asked Mr. Squitieri if he agreed to amend his application to bring the rear fence to the rear building line setback to which Mr. Squitieri responded affirmatively. Mention was made of building within the utility easement to which Mr. Butler responded for legality purposes, he builds at his own risk.
The Chairman called for proponents and Mrs. Babb spoke along with Mrs. Amy Setnicka.
The Chairman called for opponents, to which there were none. There was no one from the City to speak on the proposal.
Mrs. Koshak stated her thoughts that Mr. Squitieri should bring the fence just beyond the pool in the back yard. He countered that by saying it is his right to go to the building line to which she responded that he could, but then he would have to go to the 25’ side yard lines, too.
The City Attorney, Patrick Butler ensured from Mr. Squitieri the hardship for the record is due to the shape of his lot and that technically, it would be feasible to fence the back of the pool within the building lines. Mr. Barry asked the Board Members, since they heard earlier from the City Attorney with regard to their duties under the law, would they care for him to restate those or are they familiar enough with them to move on to the factual determination to which they responded they are ready.
Jim Barry read the Agenda item again and then asked the Members for their factual determination of the proposal to construct a fence to encroach 25’ into the west side yard, 15’ into the east side yard and 50’ into the rear yard to which: question (1) five are, (2) three will, two will not, (3) five will, (4) two will, three will not, (5) five will not, (6) three will, two will not.
The Chairperson then called for a vote of approval/disapproval to grant the desired variance to construct a fence to encroach 25’ into the west side yard, 15’ into the east side yard and 50’ into the rear yard with the following results: Yeas: Barry, Hauser and Newmark. Nays: Berkeley and Koshak.
The Chairperson declared the Squitieri’s request for variance as not approved.
Chairman Barry read the last agenda item to replace an existing wooden tie wall with stone to encroach 20’ beyond the front building line and 20’ beyond the side yard setback and gave the floor to the petitioner, David Grieshaber. Mr. Grieshaber introduced his wife, Jamie and stated they moved into Clarkson Valley a few months ago. One of the first things they are taking care of is a deteriorating wooden tie wall currently located just inches within the building lines which holds up the driveway. Their proposal is to backfill the area with dirt, widen the driveway and replace the wooden wall with stone. He said his hardship is the house, built 38 years ago, is situated at the far corner of the lot which gives them no room on the side of that driveway plus the driveway is so narrow, people have driven off the sides.
The Chairman called for proponents or opponents, to which there were none. There was no one from the City to speak on the proposal.
Jim Barry read the Agenda item again and then asked the Members for their factual determination of the proposal to replace an existing wooden tie wall with stone to encroach 20’ beyond the front building line and 20’ beyond the side yard setback to which: question (1) five are, (2) five will not, (3) five will, (4) five will not, (5) five will not, (6) five will.
The Chairperson then called for a vote of approval/disapproval to grant the desired variance to replace an existing wooden tie wall with stone to encroach 20’ beyond the front building line and 20’ beyond the side yard setback with the following results: Yeas: Barry, Berkeley, Hauser, Koshak and Newmark.
The Chairperson declared the Grieshaber’s request for variance as having been approved. Jim Barry then advised Mr. and Mrs. Grieshaber the variance granted by the Board is based upon what took place tonight. Any change making the variance greater than what was presented will negate the variance that was granted at this meeting.
The meeting adjourned at 8:50 p.m.
City of Clarkson Valley