MINUTES

Board of Adjustment Hearing

August 16, 2016

 

The Clarkson Valley Board of Adjustment, pursuant to notices posted, met at City Hall in the Clarkson Executive Center to consider one agenda item.

 

            Board of Adjustment Members present were:

                        Darryl Brody, Chairman

                        Jack Hauser

                        Paul Mercurio

                        Phyllis Newmark

                        Terry Rosenstrauch

 

The City Attorney, Mr. Patrick Butler, and Building Commissioner, Jack Schenck attended and the City Clerk, Michele McMahon recorded the Minutes.  Board Members Jim Barry, Tom Berkeley and Alternate Member Karen Koshak were unable to attend. 

 

When the meeting commenced 20 minutes behind schedule due to the late arrival of a Board Member, the City Attorney and Chairman explained to the petitioner he is present tonight to ask this Board to grant 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.  

 

The Chairperson then asked the petitioner if he had objections to any of the Members of the Board of Adjustment, to which he responded he 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 and contractors were sworn in.  Darryl Brody read the Notice of Public Hearing for the agenda item and by approval of the Board Members, amended the agenda to a 40' variance; opposed to 35'. 

 

1.  To consider the request of:

            Jack and Linda Massa

            16706 Kehrs Mill Estates Drive

to allow a newly constructed retaining wall that encroaches 35' 40' into the rear yard setback. 

 

Jeremy Dean with Pool Tron gave an explanation for the request for variance to the Board Members.  He stated the original purpose of the retaining wall was three-fold:  1) To alleviate the drastic grade and maintain a maximum of 3:1; 2) To utilize the retention capacity of the wall as a support using virgin soil; and 3) To create a less obtrusive wall to the neighboring properties.

 

On May 19, 2016, when Pool Tron, representing Mr. and Mrs. Massa, came before this Board requesting approval to relocate an existing pool beyond the building lines, the retaining wall was noted on the plans "Retaining Wall by Owner".  Once the pool was constructed, it became evident that the need for the wall was immediate and the Massa's contracted Pool Tron to build it.  As the project was under construction, they discovered that the existing substrate, having dug down to 5' below the proposed base course of the wall, was fill material.  They adjusted the wall 14' farther into virgin soil and are now asking forgiveness of this error in not getting further approval.

 

            Mr. Massa introduced himself and said the pool and wall have been constructed.  It looks great, he said.  He explained that from neighboring properties, it is better that it's lower in height, from the aesthetic standpoint and stated that it would be expensive to move the wall.  He said he's trying to get grass to grow.  He concluded by saying he received affirmative comment sheets from the neighboring properties and would appreciate if the Board Members would grant us the variance.

 

The Chairman, Darryl Brody, asked if the wall was structurally supporting the pool to which Mr. Massa said the retaining wall was there to achieve the 3:1 grade.  Jeremy Dean added that the substrate would require way too much fill had they constructed in that location.  Mr. Brody asked if anyone from Pool Tron approached the Massa's to let them know this would be a different location than the one originally approved?  Mr. Massa shook his head no.  Comments from the Board addressed to Mr. Dean included: "Why did you think you could change the location?  You build a lot of pools in a lot of cities."  "I'm struggling as to why you proceeded."  "It creates a problem for the entire community.  We wrestle with that."

 

It appeared through testimony there was no engineering report or soil samples taken.  Chairman Brody asked how long the house was there from a fill standpoint.  The response was 35 years to which his response was, "You put us in a bad situation."  Board Member Mercurio said there are no consequences to you if we say yes.  This wa totally unprofessional.  Chairman Brody reminded the contractor that at the conclusion of the May 19th Board of Adjustment Hearing, they were advises that "the variance granted by the Board is based upon what took place" at that meeting.  "Any change making the variance greater than what was presented will negate the variance that was granted..."  He asked if it ever occurred for them to call city hall or the building commissioner. 

 

The question from Board Member Rosenstrauch was, would it work to build the wall where it was originally approved - only taller?  Discussion ensued with the conclusion that it wouldn't necessarily be taller - just deeper and with more fill. 

 

The Chairman called for opponents or proponents, to which there was none.  The Building Commissioner had no comment.

 

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.  It was determined the Board Members would be treating this as a brand new request.

 

Darryl Brody read the (amended) Agenda item again to allow a newly constructed retaining wall that encroaches 40' into the rear yard setback which: question (1) five are, (2) two will not, three will, (3) two will, three will not, (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 allow a newly constructed retaining wall that encroaches 40' into the rear yard setback with the following results:  Yeas:  Brody, Hauser, Mercurio and Newmark.  Nays:  Rosenstrauch.

 

The Chairperson declared the Massa's request for variance as having been approved. 

 

The meeting adjourned at 8:30 p.m.

           

 

                                                            Michele McMahon

                                                            City Clerk

                                                            City of Clarkson Valley