DRAFT
NOVEMBER 12, 2020
A regular meeting of the Zoning Board of Appeals of the Village of Lakewood, NY, was held November 12, 2020, at 6:00 PM, in the Town of Busti Courtroom/Boardroom, 125 Chautauqua Ave., Lakewood, NY with Chairman Gary M. Segrue, presiding. Board members present were Louis S. Drago, Jr., William F. Chandler, Phyllis Sorensen and Jerry Holmes. Also present were Village Clerk Mary B. Currie and Building Inspector Jeffrey A. Swanson.
APPROVAL OF MINUTES
Motion by Louis S. Drago, Jr., seconded by William F. Chandler, to approve the minutes of the last meeting of the Zoning Board of Appeals on September 10, 2020.
Adopted: 5 ayes, no nays (Segrue, Drago, Chandler, Sorenson, Holmes)
MINIMUM LOT WIDTH VARIANCE
SIDE YARD & REAR YARD SET-BACK VARIANCES
255 EAST TERRACE AVE.
Brian & Leslie Stump, 255 East Terrace Ave., have submitted an application for a minimum lot width variance, side yard set-back and rear yard set-back variances regarding a proposal to construct an approximate 12 ft. two story addition onto the north end of the single family residence at the above address. The existing lot width is 25.2 ft., rather than the minimum required lot width of 75 ft. Also, in accordance with the proposed site plan the easterly side yard set-back is 3.2 ft., the westerly side yard set-back of is 6 ft., rather than the required 8 ft., and rear yard is 42 ft., from the lakeshore, rather than the required 50 ft., as prescribed in Section #25-10 (E) [Single-Family Residential (R-1) District] and #25-36 (A) [Lakeshore regulations], of the Village of Lakewood Zoning Law.
Chairman Gary M. Segrue asked Mr. Stump if he would briefly explain his reason for the variances as requested.
Mr. Stump said he received a variance to put an addition on the south side of his house then found out the sewer would have to be rerouted, which would be very expensive. He has now changed his plans and would like to go out 10 ft. to 12 ft. from both the front and rear of his property.
Chairman Segrue asked Mr. Stump if he currently has a porch on the lakeside of the house.
Mr. Stump said he has a porch which is approximately 8 ft. and would like to use that and an additional 4 ft. for the lakeside addition.
ZBA member Louis Drago asked Building Inspector Swanson if the Lakeshore regulations of a 50 ft. set-back, is a Lakewood zoning code or a DEC regulation.
Mr. Swanson said he wasn’t sure but would look into it and get back to the board.
Chairman Segrue asked if there was anyone in attendance to speak for or against the proposed project.
With no additional comments or questions, Chairman Gary Segrue and members of the Zoning Board of Appeals proceeded to review and answer the questions posed on the area variance findings and decision form.
Motion by Louis S. Drago, Jr., seconded by Jerry Holmes, to rescind the previous variances that were approved for the construction at 255 E. Terrace Ave. and approve variances for minimum side yard set-backs with 8 ft. as required, on the east side, the actual is 3.2 ft., approve a variance of 4.8 ft. The west side, the actual is 6 ft., approve a variance for 2 ft., the rear (lakeside), the required is 50 ft. from the lake, the actual is 42 ft., approve a variance of 8 ft., with Building Inspector Jeff Swanson finding it would be permitted by the DEC. The project is to be completed, per New York State Building Code, within twelve months from date of approval.
Adopted: 5 ayes, no nays (Segrue, Drago, Chandler, Holmes, Sorensen)
MAXIMUM HEIGHT VARIANCE
2 EAST FIRST STREET
Mr. Stephen Reed, 2 E. First St., has submitted an application for a maximum height variance regarding his proposal to construct a one story garage at the above address. In accordance with the proposed site plan, the height of the accessory structure will be 19 ft. at the roof’s peak. In accordance with Section #25-45, (E) [Accessory Structures], of the Village of Lakewood Zoning Law, the maximum height of an accessory structure shall not exceed 12 ft.
Chairman Segrue asked Mr. Reed if he would briefly explain his reasons for the variance as requested.
Mr. Reed, indicated he would like to build a 30 ft. x 40 ft. storage garage with a pitched raised roof of 19 ft. so he will be able to store his camper and pontoon boat. He said he needs the height for the overhead doors and would like the roof pitched for rain runoff.
Building Inspector Jeff Swanson said the board will also need to approve a variance for Maximum Square Footage of an Accessory Structure.
Chairman Gary Segrue read a letter dated 11/10/20, submitted by Donald & Deborah Weilacher. 4 E. 1st. St., who were unable to attend this evenings meeting.
To Whom It May Concern,
We are writing in regards to the proposed building of a garage on the property located at 2 E. 1st in the Village of Lakewood. As we are not able to attend in person due to a death in the family, we would like to voice our concerns. As we own the adjacent property to the east of this proposed structure, we would object to it being built in the back center or eastern part of the property as it would block out the sun, which would then add to the dampness of the property. The ground would not have a chance to dry out hence creating problems with our yard and potentially our own structures on our property including mold.
Thank you for your time and consideration in the matter.
Donald Weilacher
Deborah Weilacher
4 E. 1st. St., Lakewood, NY 14750
Mr. James Alexander, 131 Lakeview Ave., said he lives next door to Mr. Reed and is concerned about the location & height of the proposed garage. He said if the garage is 19 ft. in height it will block any view he has from the south side of his home, as he stands in his kitchen the only thing he or his wife will see is the side of a garage and there will never be any sunlight coming into their house.
ZBA member Jerry Holmes asked Mr. Reed if he has planned any kind of drainage between the proposed garage and neighboring property.
Mr. Reed said right now there is a drainage ditch between the two properties.
Mr. Alexander said the elevation of Mr. Reed’s property is 11.5 ft., if you add a 19 ft. structure to that it will be well over his second story windows.
ZBA member William F. Chandler asked Mr. Alexander if the height were to be higher than 12 ft. but less than 19 ft. could that work for him.
Mr. Alexander said it isn’t only the height it is also the location of the building and that it will block his entire house and they will never get the morning sunlight.
Chairman Segrue asked Mr. Reed if it would be possible to put the garage on his other lot.
Mr. Reed indicated his other lot is where his house is, he is proposing the garage to be built on his vacant lot.
With no additional comments or questions, Chairman Gary Segrue and members of the Zoning Board of Appeals proceeded to review and answer the questions posed on the area variance findings and decision form.
Motion by Louis S. Drago, Jr., seconded by Phyllis Sorensen, to approve the variances as requested for the construction of a 1,200 sq. ft. garage at 2 East First St., grant a variance of 400 sq. ft., where 800 sq. ft. is required by code and maximum height of 18 ft. rather than the 12 ft. as required by code, granting a 6 ft. variance with the addition of rain gutters on the eves and piped into the existing underground drainage system. The project is to be completed per New York State Building Code and within twelve months from date of approval.
Adopted: 4 ayes, 1 nay (Segrue, Drago, Chandler, Sorensen) (Holmes)
ORDER TO REMEDY VIOLATION
NOTICE OF APPEAL
19 OWANA WAY
The members of the Zoning Board of Appeals have been asked to interpret an Order to Remedy Violation filed by Code Enforcement Officer Jeff Swanson and to address the issues raised by the Notice of Appeal which has been received from Attorney Daryl P. Brautigam, Brautigam & Brautigam, LLP, Fredonia, N.Y., legal counsel of Dr. & Mrs. Jonathan Blasius, 19 Owana Way, concerning a fence at the aforementioned address.
ZBA Chairman Gary M. Segrue opened the Public Hearing saying the Notice of Public Hearing was mailed on October 8, 2020 to all residents within 500 ft. of 19 Owana Way as well as posted on the Village of Lakewood web-site, in The Post Journal and posted in various locations within the Village.
Chairman Segrue asked Code Enforcement Officer, Jeff Swanson, to explain the issues with the fence in detail and his reason for issuing the Order of Remedy.
Mr. Swanson said he received a call from the Lakewood-Busti Police on a complaint about the fence. When he followed up on the complaint it was his opinion the fence was considered a new structure and the finished side of the fence was facing the wrong property, in accordance with the Village of Lakewood Zoning Code, so he sent the owners an Order to Remedy Violation.
Chairman Segrue asked Mr. Swanson what year was the code he was referring to.
Mr. Swanson said at the time the fence was erected the Zoning Code was dated March 10, 2015.
ZBA member Louis Drago said in the past we have seen zoning codes as far back as 1966, is there any documentation on that.
Mr. Swanson said in the Zoning Code dated 1966 it states that a fence is considered a structure, in the 1991 zoning code #6 states the finished side of all fences must face the adjacent property owners and be at least 2 ft. from property line.
Chairman Segrue asked Mr. Swanson if he considers this a non-conforming, pre-existing fence.
Mr. Swanson said he did not think it was.
Mr. Ryan McCann, Attea & Attea, Hamburg, NY, attorney for the Village of Lakewood said he became involved in 2019 and said this all arose as a neighborly dispute between two land owners. At that point Mr. Swanson went to the property and discovered various code violations with the fence which had been recently constructed between the properties. His understanding was the fence was closer to the adjacent property line than the required 2 ft., was not set back a minimum of 10 ft. from the highway right-of way, the finished sides were not facing the adjacent property and appeared to be at risk of further collapse. Also, when the owners erected the new fence, the work was done without a permit.
Mr. McCann said Mr. Swanson was asked if that was a pre-existing fence, the answer to that is yes. Mr. Swanson was also asked if it was a non-conforming pre-existing fence, the answer to that is no, the reason is in order for it to be a non-conforming use it may not be established through existing use of land which was commenced or maintained in violation of a zoning ordinance, which means the pre-existing fence was in violation of the code, therefore this is not a non-conforming pre-existing fence.
Mr. McCann said when that fence was replaced or repaired it was subject to the existing code at the time and they were required to abide by the code, that was not done, which is why Mr. Swanson served the Order to Remedy Violation.
Mr. McCann said the members of the ZBA have been asked to find that this is a non-conforming pre-existing fence in this location and ask the property owners to comply with all existing set-backs and other requirements including having the finished side of the fence face the adjacent property.
Attorney Daryl Brautigam, Brautigam and Brautigam, LLP, Fredonia, NY, attorney for Jonathan & Myra Blasius, said he didn’t realize they were there for an interpretation of the Order to Remedy, he thought they were there for a Notice to Appeal.
Mr. Brautigam said there is no Order to Remedy permitted by the Zoning Code and he feels there are technical deficiencies in the Order to Remedy such as there is no date on the order, it fails to say the number of days the property owners have to bring the property into compliance and it was only served to one of the property owners where it should have been served to both of them.
Mr. Brautigam said there are not any facts backing that this fence was never built in compliance, his understanding is the fence was built in 1980 and the first time this village enacted any ordinance that the finished side faces the adjacent property was after this fence had been built.
Mr. Brautigam said before 2017 nobody brought a property violation proceeding against any of the property owners, if the fence is out of compliance then it has been for decades before this Order to Remedy was issued, which violates the six year statute of limitations.
Mr. Brautigam said the March 10, 2015 Zoning Code, Section #25-50 (b) states “fences in existence at the time of enactment of this local law shall only be subject to Section A-1, exempt fencing and Section A (e), Maintenance”, therefore the only thing that could be said to the property owners is that they could have a violation of A-8, all fences shall be maintained structurally and visually. According to the ordinance, you don’t have to rely on the pre-existing use, Section #25-72 because Section #25-50 has a specific provision. He doesn’t see any facts that this fence was non-conforming prior to 2017.
Mr. Brautigam felt there are no grounds for bringing a violation against his clients other than lack of maintenance of the fence, the Order to Remedy goes beyond that with set-back requirements, which side of the fence is finished and which side is facing the neighbors, none of which can be addressed because the language in the ordinance isn’t clear.
ZBA Chairman Segrue asked if this fence was in risk of collapse.
Mr. Brautigam said Mr. Michael Mangione, Active Fence Company, 2529 W. Lake Rd., Ashville, NY looked at the fence and his opinion was the fence and post were solid and intact. The only repair would be four posts that had been snapped by the wind.
Dr. Jonathan Blasius said when they moved into 19 Owana Way, there was a section of the fence which was repaired by a resident at 15 Owana Way with non matching fencing materials, when they repaired the fence they left the posts and the panel that were in good shape and only replaced some other posts and materials that needed replacing. In the spring when the panels came down they didn’t want to put them back up in case they were going to have to take them back down.
Chairman Segrue asked if the set-backs of this fence are the same as the old fence.
Dr. Blasius said the fence is the same height and position the old fence was before it was repaired.
Mr. Segrue asked Dr. Blasius if the finished side of the previous fence was facing his property or the neighbor’s property.
Dr. Blasius said the finished side was facing his property.
Chairman Segrue asked if there was anyone in attendance that would like to be heard.
Attorney Ryan McCann said the burden is not on the village with respect of the non-conforming use. There is case law of the Court of Appeals, Town of Aurora vs. Kranz wherein the land owner has the burden of proof to show that it has established a non-conforming use. The owner of the property must show that this alleged pre-existing use was legal prior to the regulatory change that made it illegal. The Village of Lakewood Zoning Code dated 1966 has the same requirements.
Attorney Daryl Brautigam indicated the Zoning ordinance from 1966 does not have anything in it about fences and how they are to be oriented. It is his understanding the local zoning law first addressed fences in detail when it was amended in 1987.
Dr. Blasius said before they began to erect the fence they went to the village to make sure they wouldn’t need any permits. He found in the Village Zoning Code, dated March 10, 2015, Section #25-72. Continuation of existing use, which read: The Lawful use of any building or land existing at the time of the enactment of this local law may be continued although such use does not conform to the provisions of this local law. However, all legally preexisting uses which do not conform to specific provisions of this local law shall not be required to comply with these provisions unless it is specifically stated within this local law that they must comply within a certain reasonable time period.
The prior section, #25-50 specifically says with pre-existing fences the only things that apply to it are the agricultural exemption and maintenance requirements. The violation didn’t say anything about structurally or visibly until the most recent violation which said it is structurally unsound.
Chairman Segrue asked Dr. Blasius and Jeff Swanson if they have any picture of the fence prior to modifying it. Since neither one had any pictures he asked Jeff Swanson if he had seen the old fence prior to it being modified and if he could tell him if there is any difference between the old and new fence.
Mr. Swanson said he had not seen it. The only section he could view was from 15 Owana Way and is approximately a 5 ft. section which was not replaced but the fence appears to cross over the property line at one point.
Dr. Blasius said there was a part of the fence that was repaired by a fence company for a property owner at 15 Owana Way, the company placed the fence along the property line and the finished side facing the person they were erecting that section for. At that time the code said if the adjoining property owners did not have an issue with the fence along the property line and the finished side facing them, it was allowed, we told her that was fine with us.
Mr. Michael Looker, 15 Owana Way, said he and his wife moved into the townhouse in 2014 and at that time he was under the assumption the fence belonged to the townhouses since the finished side faced 19 Owana Way. In the winter of 2016 two sections blew down in a wind storm, he tried to get them back up himself.
Mr. Looker said in early 2017 he was planning to replace the two section that were in need of repair and at that time he was informed by Mrs. Blasius that the fence belonged to them, not the townhouses.
Mr. Looker noted that in May 2017 a fence company came and removed the entire 5-1/2 ft. height fence, but left some of the posts. The posts that were left were not removed but knocked down and new ones were installed in different places leaving the posts different lengths from each other. He said the company then installed a 6 ft. high fence using 8 ft. panels. As a result the fence has posts in different sections of each panel and believes much of the fence has been patched together which has made it unsightly and structurally unsound.
Mrs. Myra Blasius, 19 Owana Way said several years ago it was suggested to go to mediation to resolve the problem and right before they were to mediate the Code Enforcement Officer served them with a Notice of Violation so they were not able to mediate since it had become a litigation.
ZBA member Louis S. Drago, Jr., asked at what point does maintenance and repairs become a new build. He said residents have come before the board doing a total house tear down on the same foot print to get permission. The village has had codes saying the finished sides of fences are to face the adjoining property owners since the 80’s and 90’s. Mr. Drago said the Dr. Blasius indicated they gave the neighbors permission to put the fence facing them, then they asked the board for a written waver granting them permission for the finish side to face them.
Dr. Blasius said the current code says if 50 percent or more of the materials comprising a fence are replaced then it shall be considered a new fence, but this code didn’t apply at the time.
Code Enforcement Officer Swanson said he has asked the Zoning Board of Appeals for an interpretation of the code on the fence, he said he believed it was a new fence because of the amount of fence that was replaced.
Mr. Brautigam said the code at the time has specific specifications on pre-existing fences and they were within those specifications at the time.
Attorney Ryan McCann asked Mr. Looker if there was anything that would satisfy him in terms of a resolution or anything the land owners are willing to do to resolve this issue.
Dr. Blasius said he isn’t sure if a negotiation would be appropriate at this time but he would like to talk to his attorney and see what his opinion is.
RECESS
Motion by Gary Segrue, seconded by Louis S. Drago, Jr., to recess the public hearing at 7:55 pm, so as to enter into executive session.
Adopted: 5 ayes, no nays (Segrue, Drago, Chandler, Holmes, Sorensen)
EXECUTIVE SESSION
Present in the Executive Session were Chairman Gary M. Segrue, Louis S. Drago, Jr., William F. Chandler, Jerry Holmes, Phyllis Sorensen and Attorney Joseph Calimeri.
Motion by Louis S. Drago, Jr., seconded by William F. Chandler to adjourn the execute session and reopen the Public hearing at 8:15 PM.
ZBA member William Chandler said the way he sees it is there has been much confusion on how the code was and how you apply the code as to repairs. Mr. Chandler feels there needs to be some sharing of the solution between both parties involved and it should have happened a long time ago.
Louis Drago said if this had come before the board back when it was first going to be repaired he probably would have approved that fence but with the finished side facing the adjoining property has been noted in codes for many years.
Attorney Joseph Calimeri, Wright, Wright & Hampton, Jamestown, NY, Attorney for the Zoning Board of Appeals, said he believes the codes since 1987 have read the finished side is to face the adjoining property.
Mr. Calimeri said the question is whether the fence is a lawful or unlawful, non-conforming, pre-existing fence.
ZBA member Jerry Holmes said he didn’t think aesthetically speaking, Mr. & Mrs. Lookers should have to look at a scabbed together piece of fence and agrees the finished side should face the adjacent property.
ZBA member Phyllis Sorenson said she also agrees the fence should have the finished side facing the neighbors.
Chairman Segrue said he sees it as a pre-existing, non-conforming fence to the zoning code when it was replaced, repaired or modified. He doesn’t feel it was placed more towards the neighbors or they used nonstandard fencing materials or the 6 ft. fence instead of the 5-1/2 ft. fence should make a difference at this time.
Attorney Joseph Calimeri said that one interpretation is that the only altercations of a pre-existing fence are articulated in Sub Section 8 which says is visually and sound, this is only applicable to lawful non- conforming fences, an unlawful non-conforming fence is not applicable and there are more requirements. He said that is when it comes to interpretations.
Chairman Segrue said they are here tonight because of the Order to Remedy served on Dr. & Mrs. Blasius, the ZBA can either affirm that order, reverse that order or modify that order.
Motion by William F. Chandler, seconded by Louis S. Drago, Jr., to table the decision until the next regular meeting of the Zoning Board of Appeals scheduled for 6:00 pm, December 10, 2020, at which time a decision will be made on this issue.
Adopted: 5 ayes, no nays (Segrue, Drago, Chandler, Holmes, Sorensen)
Motion by Louis S. Drago, Jr. seconded by William F. Chandler, to close the Public Hearing and adjourn the regular meeting at 8:37 pm.
Adopted: 5 ayes, no nays (Segrue, Drago, Chandler, Holmes, Sorensen)
___________________________
Mary B. Currie
Village Clerk/Secretary
