.TOWN OF PRINCETOWN
ZONING BOARD OF APPEALS
PUBLIC HEARING
Kenneth Shear
August 18, 2008
PRESENT: Victor Benson
Michael Hickok
Tim Bishop
Rich Olsen
Eric Plura - Chairman
ABSENT: Joseph Jurczynski
ALSO PRESENT: Town Attorney - Cheryl E. Sarjeant, Alan Nielsen, Gloria Schaffer, Rita DeCocco and Ken Shear
Minutes were taken by Dawn M. Campochiaro, Secretary
Chairman Plura called the meeting to order at 7:30pm.
Dawn Campochiaro read the following notice posted in the Daily Gazette:
PLEASE TAKE NOTICE that the Zoning Board of Appeals of the Town of Princetown will conduct a hearing on the following proposition on Monday, August 18, 2008 at 7:30pm at the Town Hall located at 165 Princetown Plaza:
Mr. Kenneth Shear is hereby requesting a use variance for residential use in a commercial zone for property located on Kelly Station Road, Schenectady, NY Tax Map# 56.-1-18.2 according to zoning law 6.5A.
Chairman Plura asks the secretary if there is any correspondence from the County Planning Board: No.
Chairman Plura asks the secretary if there is any correspondence from the Town Planning Board: Yes. The Planning Board at its July 31, 2008 meeting discussed the applicant's request for a variance to allow residential use of his commercial property on Kelly Station Road. In reviewing the applicant's written comments in Attachment 1 and the materials he has provided to support his request, the Planning Board has the following comments:
- The applicant has not provided competent financial evidence that he cannot realize a reasonable return on the property for each and every permitted us.
- The applicant has not demonstrated that the alleged hardship relating to the property is unique as there is viable commercial property operating across the road.
- The alleged hardship appears to have been self-created as there was a failure by the applicant to apply due diligence when purchasing the property. Princetown's Zoning Law clearly lists all allowed uses in a commercial zone and residential uses are not included. Therefore, it is the Planning Board's recommendation that the use variance be denied.
Chairman Plura asked who in the audience is requesting this use variance. Ken Shear from 713 S. Kelly Road, said he was and that he would like to build a house on the property. Mr. Shear stated that he inquired about the property from Kevin McCarthy who was the building inspector at the time. He asked Mr. McCarthy if the property had to be 5 acres in order to build a house. Mr. Shear stated that Mr. McCarthy said no that the property was grandfather and he could build a house with less than 5 acres.
Sam Salamone asked if Mr. Shear if he had this in writing and Mr. Shear stated no.
Chairman Plura asked Mr. Shear if he has tried to sell the property as commercial? Mr. Shear stated no.
Chairman Plura asked Mr. Shear if he was building the house for himself or someone else. Mr. Shear stated is was going to be for one of his children.
Chairman Plura stated to Mr. Shear that his application was incomplete and he will need the following: Plot plan, for the house, septic, driveway grade and well. He will also need to show egress and ingress for an emergency vehicle and a large turn-a-around. Also the stream that goes through the property is Class C Stream which means it is protected by DEC and the Army Corp of Engineers.
Chairman Plura would like to have a recommendation on the driveway from the Fire Warden and Town Engineer if it is designed properly.
Victor Benson stated that the first test is the applicant is substantially unable to make a reasonable return from the property as shown by financial evidence; and the courts have required this be shown in dollar and cents. This needs to be shown to the ZBA in order to make a decision
Chairman Plura states now we go to the balancing test.
1. The applicant is substantially unable to make a reasonable return from the property, as shown by competent financial evidence;
Victor Benson stated there has been no financial evidence that the applicant would not be able to make a reasonable return on the property.
•2. The hardship is somewhat unique, or at least not shared by a majority of parcels in the same zoning district;
Not applicable.
•3. The hardship has not been self-created; and
Hardship has been self created.
•4. The relief asked for - i.e., the requested variance will not alter the essential character of the neighborhood.
Victor Benson states it does not alter the character of the neighborhood.
Chairman Plura asks the board members to make a motion using the 4 point balancing test.
Victor Benson motions to deny the use variance, stating that there has been no financial evidence provided in support of the applicant not being able to realize a reasonable return on the investment.
Chairman Plura opens the meeting to the public:
Mr. Jim Retajczyk (former Chairman of ZBA) of Shagbak Court, stated the he didn't agree that the Town Board changing the town line to a commercial district from the railroad tracks to Kelly Station Road. If the Town didn't change the line Mr. Shear would have been able to build his house.
Mr. Retajczky also stated if you change a property, that is considered spot zoning and that is illegal. He thinks the Town should change back to the original line.
Sam Salamone suggested that Mr. Shear might want to go back to the Town Board and see if the line can be rezoned from commercial to residential.
Victor Benson makes motion to deny the variance.
Tim Bishop seconds the motion.
Chairman Plura asks the secretary to call for a vote:
Roll call:
Victor Benson - in favor of denial of variance
Sam Salamone - in favor of denial of variance
Tim Bishop - in favor of denial of variance
Rich Olsen - in favor of denial of variance
Chairman Plura - in favor of denial of variance
Motion carries 5-0 in favor of the denial.
Chairman Plura states to Mr. Shear that he has 30 days under state law to challenge the Zoning Boards determination. The 30-day period typically begins when the first filing is made by the Zoning Board. In this case, it will likely be draft minutes or minutes. There may be a resolution adopted subsequent to that. The 30-day period is not negotiable; it is set by state law. Mr. Shear should consult with his attorney regarding that and the challenge will take the form of an Article 78 lawsuit.
Meeting was adjourned at 8:20pm.
Respectfully submitted,
Dawn M. Campochiaro
Zoning Board Secretary
