The following are the minutes of the Town of Ballston Zoning Board of Appeals hearing held on Wednesday, February 7, 2007.

Ms. Bell called the meeting at 7:30pm and Ms. Kane led the Pledge of Allegiance.

Ms. Bell reviewed the agenda for this evening.

Ms. Bell said that the Board is made up of seven members, two members are not in attendance this evening and in order to receive approval, a full majority vote will be needed from the Board; four affirmative votes for an approval.

Ms. Bell asked for the corrections to the January 3, 2007 minutes.

There were no corrections to the January 3, 2007 minutes.

MOTION: Ms. Kane made a motion to accept the January 3, 2007 minutes as submitted.

Mr. Rogner seconded the motion and all present voted in favor. CARRIED.

Anthony Rigali, 23 Sherwood Lane for an area variance pursuant to section 138-8.1. Ms. Bell said that the applicant is proposing to remove an existing 14’ x 22’ garage and replace with a 34’ x 28’ garage. Ms. Bell said that the applicant is requesting an area variance of 2,993 sq. ft. and front yard setback of 6’.

Mr. Brown said that the map shows 55’ from the property line to the building, is that to the foundation. Mr. Regali replied yes. Mr. Brown asked the intended use of the building. Mr. Rigali replied a garage. Mr. Brown asked if the proposed garage will be used as a residence. Mr. Rigali replied no. Mr. Brown asked if business will be conducted out of the garage. Mr. Rigali replied no. Mr. Brown asked if the garage will have utilities. Mr. Rigali replied electric and has future plans for heat; (gas hot air).

Mr. Brown asked the reason for not placing the garage back the full 60’. Mr. Rigali said that he wants to place the new garage even with the house. Mr. Brown asked if there is existing septic, trees, that would prevent moving it back any further. Mr. Rigali said no. Mr. Brown asked the applicant "why does the garage need to be so big." Mr. Rigali said that he owns three vehicles.

Ms. Bell opened the public hearing 7:38pm.

Ms. Bell closed the public hearing 7:39pm.

No one wished to speak on this application.

MOTION: Mr. Brown motioned to name The Town of Ballston Zoning Board of Appeals the Lead Agency in the SEQR process. Ms. Kane seconded the motion and all present voted in favor. CARRIED.

MOTION: Mr. Brown moved to issue a Negative Declaration, with the basis that there is not a potentially significant environmental impact. Ms. Kane seconded the motion. CARRIED.

MOTION: Mr. Brown made a motion grant area variances of 2,993 sq. ft. and a 6ft. front yard setback at 23 Sherwood Lane pursuant to section 138-8.1 for the construction of a 28’ x 34’ garage with the following stipulations. The garage not contain any residences and not to conduct any business.

Mr. Brown went through the five criteria of an area variance:

1) Whether the properties will be created by the granting of the area variance. Mr. Rigali replied no.

2) Whether the benefit sought by the applicant can be achieved by some method, feasible for the applicant to pursue, other than an area variance. Mr. Rigali replied no.

3) Whether the requested area variance is substantial. Mr. Rigali replied no.

4) Whether the proposed variance will have an adverse effect or impact on the physical or environmental conditions in the neighborhood of district. Mr. Rigali replied no.

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. Mr. Rigali replied no.

Ms. Kane seconded the motion and all present voted in favor. CARRIED.

Gary Lyons, 4 Ramble Lane for an area variance pursuant to section 138-8.1. Ms. Bell said that the request is for a temporary grey 24’ x 12’ plastic parking garage which will be used for parking for his son’s car. The applicant’s presently own four vehicles and currently have a two stall garage. Ms. Bell said that the structure is temporary and will be taken down in the spring.

Ms. Bell indicated that a corner lot requires two front yard setbacks. The applicant is requesting a lot area of 8,656 sq. ft. and a two lot widths of 52.39ft. and 53ft.

Mr. Brown asked if the temporary structure is over a portion of the driveway. Mr. Lyons replied no, "it butts up to the edge."

Mr. Brown asked if the temporary structure permanently affixed to the ground so it won’t blow away. Mr. Lyons said that it is anchored. Mr. Brown asked if it would be a hardship to remove the anchors; could the anchors be removed now. Mr. Lyons said it could be done if the anchors were not frozen in the ground. Mr. Brown asked since the structure is temporary; why it could not be moved to meet the setbacks; accept the square footage. Mr. Lyons said there is no other area on the property to place the structure and it would have to be moved to the middle of the backyard and driving over the lawn would create a problem in the snow and kill the grass. A further discussion was held on placement of the temporary structure. Mr. Brown asked the applicant if there are plans to put the temporary structure back up next year. Mr. Lyons said that the intention would be to put up a garage next year whether to expand the existing or build another structure. Mr. Brown asked the applicant to consider a stipulation that if granted this year, that next year in order to put the temporary structure up; it has to be in compliance with side yard setbacks. Mr. Lyons asked if it is impairing vision to the road. A further discussion was held on front yard setbacks; how to determine. Mr. Brown asked if a stipulation would be acceptable. Mr. Lyons replied yes.

Ms. Kane asked the size of the structure. Mr. Lyons replied 12’ x 24’. Ms. Kane replied that "it’s not pretty and would not want to look at it if it were in my site of view."

Mr. Brown asked since the structure is temporary and attends to take it down, what was the time frame to take the structure down. Mr. Lyons replied the end of March early part of April.

Ms. Bell opened the public hearing 7:51pm.

Ms. Lyons asked if it would be esthetically acceptable in the middle of the yard rather then where it is presently.

Ms. Bell closed the public hearing 7:55pm.

Mr. Rogner went through the five criteria of an area variance:

1) Whether the properties will be created by the granting of the area variance. Mr. Lyons replied no.

2) Whether the benefit sought by the applicant can be achieved by some method, feasible for the applicant to pursue, other than an area variance. Mr. Lyons replied no.

3) Whether the requested area variance is substantial. Mr. Lyons replied yes.

4) Whether the proposed variance will have an adverse effect or impact on the physical or environmental conditions in the neighborhood of district. Mr. Lyons replied no.

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. Mr. Lyons replied no.

MOTION: Mr. Brown motioned to name The Town of Ballston Zoning Board of Appeals the Lead Agency in the SEQR process. Mr. Groves seconded the motion and all present voted in favor. CARRIED.

MOTION: Mr. Brown moved to issue a Negative Declaration, with the basis that there is not a potentially significant environmental impact. Ms. Kane seconded the motion. CARRIED.

MOTION: Mr. Brown made a motion to grant the existing temporary garage structure at 4 Ramble Lane be permitted with the following area variances; 8,656 sq. ft., lot width 52.4ft.and a front yard setback of 53ft. with the following stipulations that the structure be removed by April 15, 2007 and should the appellant want to put the structure back up in the future, it will be placed such that it satisfies the lot setback requirements. Ms. Kane seconded the motion and all present voted in favor. CARRIED.

Thomas Ecobelli, 1465 Route 50 for a use variance pursuant to section 138-8. Chaya Tal of Brenner Realty was present to present the case to the Board. Ms. Bell said that the said property is being considered for as a use variance for a three unit dwelling. Ms. Bell said that the property has been for sale for the past two years after numerous showings and the feedback is that the numbers do not work

as a two family dwelling. Mr. Bell said that two family dwellings are all that are authorized by the Town in that zone and the applicant is before the Board for a use variance to convert the existing two dwelling property into a three unit property. Ms. Tal said that the existing property has been used as a three unit since 1986. Ms. Bell said that it has never been approved. Ms. Tal said that the zoning went in effect in 1987 and the third unit has been occupied by the original tenant since 1986. Ms. Tal said that she has a copy of the original rent security deposit receipt, dated November 1986 and also has documentation from National Grid that the service meter was opened on October 1986. Ms. Tal said that there is no concrete evidence that the apartment was occupied by the original tenant in the center apartment. Ms. Tal has a statement from the original tenant stating that he has lived there continuously and has a floor plan showing the original duplex showing where the third unit was added.

Ms. Tal asked if the application could move forward to show this is a preexisting nonconforming use or continue as a use variance.

Mr. Reilly suggested the preexisting nonconforming use and referenced the rent receipt dated back to 1986, but ideally were looking for three rent receipts. Mr. Reilly indicated if the tenant offered to give a sworn statement in affidavit form that the tenant has been in that unit since 1986, that the other two units were occupied when the tenant moved in and were continuously occupied. Mr. Reilly said that there has been no gap of more than a year from that use as a three family, then a preexisting nonconforming use would have been established and the Zoning Board of Appeals would not need to hear the case.

Ms. Tal said that documentation that may be available from National Grid:

Unit #1 occupied by Ralph Ecobelli, owner until 2003

Unit #3 occupied by various tenants; there are no records

Mr. Reilly recommended Mr. Ecobelli supply the Board with an affidavit describing the use of the property when his father owned it and the occupant’s affidavit.

Ms. Tal asked who would determine if there was sufficient evidence.

Mr. Reilly would consult with Mr. Johnson and if there was not adequate evidence then that decision could be appealed to the Zoning Board of Appeals either an interpretation or a use variance. Mr. Reilly said if Mr. Johnson agrees there is adequate evidence, the neighbors could appeal the decision to the Zoning Board of Appeals that this is not a preexisting nonconforming use.

Mr. Reilly recommends tabling the application until the affidavit is received from the tenant and then move forward.

Ms. Tal said that the issue is time constraint because the property is under contract for sale and Mr. Ecobelli needs the sale to go through because of financial detriment. Ms. Tal asked if a use variance could be granted.

Mr. Johnson said that it would be to the applicant’s advantage to try to prove that it was a legal use prior, as well as a use variance it will need to be heard by the Planning Board and fire code issues for fire separations between the dwelling units which now have to be in effect today which would not have to be proved if they were preexisting.

Ms. Tal asked if an affidavit is received from the tenant and from the owner, how long before a decision is made. Mr. Reilly said to forward the documentation to Mr. Johnson and a decision should be made based on the evidence submitted.

Ms. Tal asked if the information was not sufficient. Mr. Reilly said that the applicant would return to the Zoning Board of Appeals.

Ms. Bell motioned a five minute recess.

Ms. Tal made a phone call to the owner, Mr. Ecobelli.

Ms. Bell re-adjourned the meeting.

Ms. Tal spoke to Mr. Ecobelli and agreed to follow through with the preexisting nonconforming use.

Mr. Reilly said that he would speak to the applicant’s attorney.

Mr. Reilly said this information should be in an affidavit form referencing it as a three family.

Mr. Brown asked if National Grid could establish that there were three electrical services at the property prior to zoning.

Mr. Johnson said that he has in his possession the original building permit dated back to 1969 which showed a duplex; two family. Mr. Johnson asked when this property was converted. Ms. Tal said that there was a unit on each end.

Mr. Brown said that if an affidavit could be received from the contractor when the modifications were made.

Ms. Tal refers to the center part of the building as the "U" which remains to date the same. Ms. Tal said that it was enclosed and incorporated as part of the owner’s apartment, prior to the tenant leaving in 1986; it was divided off into separate units.

Mr. Johnson said the state building code changed in 1984, under present code a one hour separation is required between dwelling units in a multiple dwelling. Mr. Johnson said that he would have to see what the state code was back in 1986. Mr. Johnson asked if there was documentation showing that the building was built in 1984. Ms. Tal referred to the drawing which states one unit has two bedrooms, living room, bath family room and a kitchen. Ms. Tal said that the other unit has three bedrooms, living room, bath, family room and a kitchen. Ms. Tal said the only way to have that configuration that way it was used before, the tenant was in the middle unit where owner had an extra two rooms.

Mr. Johnson said a three unit apartment now has a total of five bedrooms. Mr. Johnson said that when the building permit was issued, it was a five unit two bedroom apartment. Ms. Tal said that one part of that unit was converted to the third unit. Ms. Tal said that there was no way it could have had this room configuration without using that middle section; there are two extra rooms.

Ms. Bell asked the applicant is she wishes to table the application. If the applicant returns, and the Board votes in the affirmative for a use variance, the applicant will be required to apply to the Planning Board for Site Plan Review.

Mr. Brown said that use variances are very hard to grant and the statement only having two rentals instead of three, just does not work. Mr. Brown said that documentation needs to be shown; substantial competent financial evidence.

Ms. Bell said that the reasonable rate of return is on the structure, not the individual/owner’s financial situation. Ms. Bell said that the hardship has to be on the building that it could not be possibly used as a duplex.

Application tabled.

MOTION: Ms. Kane made a motion to adjourn. Mr. Brown seconded the motion. CARRIED.

Meeting was adjourned at 8:25pm.

Respectfully submitted,

Michelle L. Dingman