October 19, 2009: Regular Meeting

P. O. Box 206

Barneveld, NY 13304

Minutes of Meeting

October 19, 2009

1.                  ROLL CALL  Present:   Charles LaMendola, John Stetson, Anna Giacobbe, Richard Joyal

Absent:  Jeff Dittl                  Also present:  8 public attendees

2.                  PURPOSE:  This was a Public Hearing and a regular meeting of the Zoning Board of Appeals.

3.            PROCEEDINGS:   Chairman LaMendola called the meeting to order at 7:30 P.M. and outlined the order of business for the meeting; Public Hearing (Evans area variance), Simmons Conditional Use Permit Appeal discussion and decision, approval of September minutes, Evans decision and other business.

LaMendola opened the Public Hearing and the following case was heard:  Appeal 9071, Marion A. Evans, Parcel ID #228.000-1-61, 9630 Powell Road, Holland Patent, Zoning R-R.  Applicant seeks an area variance to construct a freestanding carport approximately 59-60 feet from the center of the road which does not meet the minimum front yard setback of 100 feet in the R-R Zone.  Ms. Evans explained that she had recently purchased a small travel trailer and felt she needed a place to shelter it from the inclement weather when not in use. Her driveway off Powell Road is small and the road, itself, is narrow.  A steep embankment at the back of the property limited the placement of a structure on her lot.  She decided the best solution was to erect a metal carport instead of an addition to the house or a garage.  The carport would be color-coordinated to the house; it would have a roof and sides and openings which could be covered when snow begins.  Ms. Evans also said that four of her immediate neighbors had been contracted; they had no objections and had signed a statement to that effect and is part of the appeal application.  There were no comments or objections in writing or from the floor.  LaMendola read the Planning Board October 12^th letter recommending approval of the appeal.   The Public Hearing closed at 7:45 P.M.

The regular meeting opened and the Board took up the Simmons appeal requesting a Conditional Use Permit to operate an outdoor wood-burning boiler.  He noted that material had been received from Mrs. Benson which was reviewed by the Board members.  LaMendola then reviewed the area variance criteria which the Board would apply :

      – will the benefit produce an undesirable change in the character of the neighborhood;

-         can the benefit be achieved by some other method;  is the request substantial; - will the variance have an adverse effect on the physical or environmental condition in the neighborhood and  -was the difficulty self created (which consideration shall be relevant to the decision but not necessarily preclude granting the variance).

LaMendola asked if the Board members had any questions.  Stetson asked Mrs. Benson how she determined where the smoke had come from.  She said that around Easter she had traced the smoke in her home to an open fire on a neighbor’s lawn in close proximity to the Simmons residence.  If the smoke from that fire made it to her home, then the smoke from the Simmons boiler can do the same.  She commented that her property is high and smoke rises; that she had no problems until approximately the time that the Simmons’ installed the boiler; that her lawn was covered with smoke.  She said the smoke had affected the health of her husband and her pets.  Stetson asked was the smoke visible on the lawn.  Mrs. Benson advised that it was the smell of smoke.  She commented that there are temperature inversions in Barneveld. 

LaMendola emphasized that the Board is not involved in the legislative process and much of the material supplied by Mrs. Benson concerned the desire to change the law.  He said the Zoning Board of Appeals is not empowered to change the law but only to apply the provisions of the Outdoor Wood Burning Boiler law enacted by the Town Board in November 2008 in its decision.

Mr. Simmons has submitted additional material regarding side yard setbacks.  Stetson asked for clarification of the measurements provided.  Mr. Simmons explained how the measurements were taken in relation to West Canada Creek.  Stetson said that it appears from Simmons’ figures that the property meets the 200 ft. side yard setback. 

The Board, according to case law, will consider the provisions of the current local law in relation to the information available in the Simmons case.  The views and opinions of property owners were sought by a mailing regarding the Public Hearing extending to one half mile of the Simmons property.  The Planning Board had recommended approval of the appeal and had approved the Site Plan review in the Land Conservation District.

Provision l:  The boiler must be a minimum of 200 feet from any property line and 400 feet from the nearest dwelling.  The boiler meets the property line setbacks.

Provision 2:                  The boiler must be located behind the residence, that is, no closer to the road than the distance between the road and the farthest distance to the back of the residence.  The boiler meets this provision.

Provision 3:                   The boiler may only be used between September 15^th and May 15^th of any year.  Specifically the boiler may not be run at any other time.   Mr. Simmons has stated that the boiler runs from November thru April.

Provision 4:                  Boilers are limited in firewood, corn, coal, fuel oil if used in combination with firewood and untreated lumber as a fuel.  The burning of any other material is prohibited.  Mr. Simmons, in the Public Hearing indicated dry, untreated lumber is used in the boiler.

Stetson then noted that the distance from the boiler to the nearest neighboring dwelling had not been verified.  Upon review of maps available, it was determined that the nearest neighboring home was approximately 225 feet from the boiler and, therefore, does not meet the criteria of Provision l.   Stetson’s position was that if the Board approved the Conditional Use Permit, it would need to also grant an area variance.  Since this was the first case involving the Outdoor Wood Burning Boiler law a variance would set a precedent. 

Chairman LaMendola, called for a vote on granting the Simmons’ a Conditional Use Permit to operate an Outdoor Wood Burning Boiler.  Roll Call:  Stetson, “Nay”; Giacobbe, “Nay”; Joyal, “Aye”; LaMendola, “Nay”.  Motion did not pass.  A Conditional Use Permit was not granted.

The Simmons’ were encouraged to seek a location to which the boiler could be moved to meet the side yard set back and distance to nearest residence and resubmit an application.

The Board then considered the Evans appeal for an area variance to erect a freestanding carport approximately 60 feet from the center of the road.  Upon motion of Stetson, second by Giacobbe, the motion was approved with all members present voting “aye”. In reaching its decision the Board considered the following:

1. No undesirable change will be produced in the character of the neighborhood.
2. The benefit sought by the applicant cannot be achieved by other method given the topography of the parcel.
3. The requested variance is not substantial.
4. The proposed variance will not have an adverse effect or impact on the physical or environmental conditions in the neighborhood or district.
5. The difficulty was self created but does not preclude granting the variance.
6. The Planning Board has recommended approval of this appeal.

Upon motion of Joyal, second by Giaccobe, the minutes of the September 21^st meeting were approved with all members present voting “aye”

The next meeting of the Zoning Board of Appeals was set for November 30^th at 7:30 P.M.  The meeting adjourned at 8:45 P.M.

Respectfully submitted,