Zoning Board of Appeals —- Proceedings by Authority
State of New York,
City of Jamestown, ss:
The regular meeting of the Zoning Board of Appeals of the City of Jamestown, New York, was held on Wednesday, September 05, 2018 at 3:30 p.m.
Members Present: Ellen Ditonto, Jim Olson, Peter Larson, Sally Martinez
Members Absent: Judith Sandson, Patricia Calanni, Richard Hanson
Others Present: Larry Scalise
Mrs. Ditonto called the meeting to order.
Mrs. Ditonto: We have a number of petitions that we will be dealing with today and just a couple of housekeeping items; once your petition is read, if you’re representing the petitioner or are the petitioner, you need to come to the microphone here in front of me. You need to state your name and home address before you speak to the group because we do have to have everything transcribed from an electronic, digital recorder. So, we have to have your name and address. Also, there’s always an opportunity for people in the public realm to speak to the board. When that time is going to be held I will let you know and you need to go to one of the microphones on either side of the auditorium. Again, state your name and home address, limit your remarks to five minutes or less and it must be about the petition that’s currently being discussed.
NICHOLAS AND LIZA BABCOCK, 11 SPRUCE ST., 370.15-6-42
The petition of Nicholas and Liza Babcock, 11 Spruce Street, Jamestown, NY, for an area variance to replace an existing 6’ fence with an 8’ fence at 11 Spruce Street, parcel 370.15-6-42. (Section 300-0206 Fences in residential districts: The maximum allowable height for a fence in the rear yard is 6’. Proposed is 8’.)
Mrs. Ditonto: This petition was tabled in August because there was no one here representing the petitioner. Is there someone here that wants to speak on this? Okay, at this point I would need a motion to remove this from the petition.
Ms. Martinez moved to remove the petition from the table. Seconded by Mr. Olson.
Carried: 4 – 0
Mrs. Ditonto: Thank you. Okay, go ahead, state your name and home address and tell us a little bit about this request.
Mr. Jacobson: I’m Todd Jacobson at 210 Van Buren Street in Jamestown. Liza is my daughter and lives with my son in law, Doug at 11 Spruce Street. They have an existing 6’ fence along the back of the yard property. The neighbor behind them has two dogs, one of them quite large, who is constantly up against the fence, trying to get over the fence. Actually, gets on the trampoline that’s within 2’ of the fence and jumps on the fence and tries to climb over it. They would like a variance to get it up to an 8’ fence, which should eliminate that problem. I have a 7-month-old granddaughter and I’m quite concerned.
Mrs. Ditonto: Can you tell us a little bit about the fencing? What’s shown here is a stockade fence. Is that the type of fence that they would be putting in?
Mr. Jacobson: That’s what’s currently there. It will be one from Home Depot, it’s just a 6’ panel.
Mrs. Ditonto: Okay. A panel – it’s of that composite, not wood? It’s the composite material?
Mr. Jacobson: It’s wood, the same on both sides.
Mrs. Ditonto: Okay. Other questions from members of the board? Seeing no other questions from members of the board, this is a time when anyone in the public has an opportunity to speak about this petition request. Again, to replace an existing 6’ fence with an 8’ fence in the backyard at the property at 11 Spruce. Is there anyone who wishes to speak? Seeing no one approaching the microphone, at this point we would move to find someone to make a motion on the area variance request for 11 Spruce Street.
Mr. Larson made a motion to approve the petition. Seconded by Ms. Martinez.
Carried: 4 – 0
KATHLEEN LUMIA, 514 MARGARET ST., 371.09-4-15
The petition of Kathleen Lumia, 514 Margaret Street, Jamestown, NY, for an area variance to retain an 8’ tall mesh fence enclosing the rear yard, at 514 Margaret Street, parcel 371.09-4-15. (Section 300-0206 Fences in residential districts: The maximum allowable height for a fence in the rear yard is 6’. Installed fence height is 8’.)
Mrs. Ditonto: Thank you. Please, name and address and talk a little bit about the petition request.
Ms. Lumia: Kathleen Lumia, 514 Margaret Street.
Mrs. Ditonto: And you have some deer that enter your property.
Ms. Lumia: Yes, deer are abundant and they love my plants. They eat them all. That’s why the fence went up in the first place.
Mrs. Ditonto: And is that mesh fence, have you talked about putting any kind of more permanent fence in, other than the mesh?
Ms. Lumia: I haven’t; it was what I could afford at the time. And still is.
Mrs. Ditonto: Okay. Questions from members of the board?
Ms. Martinez: Has it been effective?
Ms. Lumia: Yes, it is very effective.
Mrs. Ditonto: Do they still get into your property or not?
Ms. Lumia: No.
Mrs. Ditonto: They’re not able to get over it.
Ms. Lumia: They don’t jump over 8’, no.
Ms. Martinez: Your neighbors haven’t complained about it?
Ms. Lumia: The complaint…
Ms. Martinez: No, the neighbors. Because it’s not a beautiful fence and it has a lot of cave-ins and everything.
Ms. Lumia: It’s been there for almost 8 years.
Ms. Martinez: That’s a good reason.
Ms. Lumia: There’s never been a complaint; up until I took my one neighbor to small claims court and then her boyfriend told me that he was going to sue me because my fence was illegal and I would lose and he would win. And that’s why we’re here.
Mrs. Ditonto: Other questions?
Mr. Olson: Larry, if she took that down, she would still have to get a permit for a regular fence, correct?
Mr. Scalise: Yes.
Ms. Lumia: I went the next day once he said that to me and asked if I needed a permit.
Mr. Olson: I just asked if you decided to take that down and put in a different one at the same height, you would still have to get a permit and come back to still have that be an 8’ fence.
Ms. Martinez: Does she have to get a permit, retroactively, for the one that is there?
Mr. Scalise: Yes, she will, but I explained to her that we had to come here first before I could write a permit.
Mrs. Ditonto: Mrs. Lumia, is there a way that you could have that fence stretched and tightened so that it’s not so collapsed? Because I think that’s part of the problem. Fences, as you know, are very difficult to maintain in some cases and that does detract from the neighborhood if you have a fence that looks like that.
Ms. Lumia: Yes, I can do that.
Mrs. Ditonto: Other questions?
Ms. Martinez: How soon would it take you to do that? Is that something you can do this fall?
Ms. Lumia: I would hope so. I’ve enlisted the help of my nephews.
Ms. Martinez: Great. As long as you’ve got some help to do it; that helps. Because we would want to know that you’d definitely gotten it done.
Ms. Lumia: Right.
Ms. Martinez: We can add that, Larry?
Mr. Scalise: What was that?
Mrs. Ditonto: That the fence is tightened so that it’s…
Mr. Scalise: I believe you can put that condition on it. I don’t know why you couldn’t.
Mrs. Ditonto: Any other questions from the board? Seeing none, at this point it’s time for anyone from the public who wishes to speak either in favor of or in opposition to this petition, 514 Margaret Street, to go to the microphone. State your name and address.
Mr. Ognibene: My name is Vincent Ognibene. I live at 516, immediately to the east of Mrs. Lumia. I haven’t been able to understand any of the conversation. I have a severe hearing loss and I wonder if any of these microphones are working. That’s why I tapped this one quite a bit. I think Mrs. Lumia has done a great job. It is not a fence as people think of a fence. It is a deterrent. Anyone who’s chased deer around as I have, knows that a 6’ fence is not a problem for an adult deer. Sooner or later, it may come to City Council to have to address this problem citywide, but in the meantime, I think an 8’ fence is a step in the right direction.
Mrs. Ditonto: Thank you. Is there anyone else who would like to speak? Please state your name and home address.
Ms. Hoch: My name is Sandra Hoch and I live at 506 Margaret Street. And from my backyard, all you see of her fence is hanging mesh, rolled up chicken coop and rotten wood. And I don’t think that my husband and I should have to look at that. And that is it.
Mrs. Ditonto: Thank you. Thank you very much. Would you like to respond to that in terms of, can you clean up the rest of the pieces of chicken coop and rotten wood that apparently are on your property?
Ms. Lumia: I don’t know of any rotten wood. There’s chicken wire down at the bottom of the fence, to keep the little critters out. So, that could be removed.
Mr. Olson: Larry, there haven’t been any other complaints upstairs on the property?
Mr. Scalise: No, just the one and I spoke with Ms. Lumia and she filed the application and we’re here today.
Mrs. Ditonto: Larry, just so that there’s clarification, if this is approved, it’s for the current mesh fence. If she got a different fence, she would have to come back and get another variance?
Mr. Scalise: Yes, if she replaced the fence she has now, she would have to come back if it was above 6’.
Mrs. Ditonto: So, we couldn’t indicate that the variance would be for a permanent 8’ fence that might be different than this.
Mr. Scalise: I believe you could if you wanted to give her the option of putting one up, but I would worry that condition-wise, it being wood, it being vinyl may come into play; a condition that the board may want to take up with, now you what you’re getting, but tomorrow something may be a little more different that the board may want to consider before allowing it to continue.
Mrs. Ditonto: Thank you for that clarification. Anyone else in the audience who wishes to speak? Seeing none, at this point, we are ready to have some kind of a motion on the petition of Kathleen Lumia, 514 Margaret Street for an 8’ tall mesh fence enclosing the rear yard on that parcel.
Ms. Martinez: I would make the motion, but it has to be that it’s definitely going to be fixed up before winter.
Mr. Olson: Fixed up meaning stretched…
Ms. Martinez: Meaning straightened out, stretched.
Mr. Olson: As well as getting rid of the chicken wire…
Ms. Martinez: Getting rid of anything that’s lying around that doesn’t really belong there; the chicken wire or the… It’s a chicken coop, you think?
Mr. Olson: She says chicken coop. She said chicken wire to keep things out.
Ms. Martinez: That the yard is really straightened up. That’s all.
Ms. Lumia: There’s nothing lying around.
Ms. Martinez: Right. Any lumber that might be lying around. Just make the yard look nice, that’s all. And that’s all part of something your nephew could help you with, I’m sure. Just to get it all in order and I’d like Larry to take a look at it and make sure it’s done.
Mrs. Ditonto: There’s a motion on the floor for the 8’ mesh fence to be retained on the property as long as it’s stretched and that any chicken wire is removed and any excess lumber that would be on the property, that is viewable, from adjoining properties.
Ms. Martinez made the motion to approve the request based on the conditions stated. Seconded by Mr. Larson.
Carried: 4 – 0
Mrs. Ditonto: I’m going to vote aye, but I really do have concerns. I want that fencing stretched. It is not a very nice site as it currently is. We don’t like to have those temporary fences and I understand that you have a financial concern about putting a permanent fence in, but we really do want that property so that it looks nice in that neighborhood. So, I will vote aye. So, you’ve been approved for that variance request.
BRETT SIKORA, 619 WEST 7TH ST., 387.31-2-2
The petition of Brett Sikora, 333 River Street #1141, Hoboken, NJ, for a use variance to continue use of 619 West 7th Street, parcel 387.31-2-2, as a three-family dwelling. (Section 300-0306 Two Family Residential District: 3 family apartment buildings are not a permitted use in the R-2 district. The first permitted district is the R-C district.)
Mrs. Ditonto: Todd, I’m wondering if we could take the fourth petition with that. If you would read that as well.
Mr. Thomas: Certainly.
Mr. Scalise: I was going to suggest that. It’s the same thing, just two separate properties.
BRETT SIKORA, 619 WEST 7TH ST., 387.31-2-19
The petition of Brett Sikora, 333 River Street #1141, Hoboken, NJ, for a use variance to continue use of 401 West 7th Street, parcel 387.31-2-19, as a three-family dwelling. (Section 300-0306 Two Family Residential District: 3 family apartment buildings are not a permitted use in the R-2 district. The first permitted district is the R-C district.)
Mrs. Ditonto: Please identify yourself and your home address.
Mr. Magee: James Magee, 515 Kiantone Road, Jamestown, New York.
Mrs. Ditonto: Mr. Magee I take it that you’re the maintenance person or property…
Mr. Magee: I am the owner right now.
Mr. Scalise: He’s the seller, Mr. Sikora is the purchaser.
Mrs. Ditonto: For both of these properties.
Mr. Magee: Correct, yes.
Mrs. Ditonto: Why don’t you explain to us, I guess, how these both went from two to three-family, the timeframe and all of that.
Mr. Magee: Well they’ve been three-families as long a time as I’ve owned them, probably thirty years. There are several three-family dwellings on that street right now and there’s multiples also; four families. I haven’t had any problems in the thirty years I’ve owned them.
Mrs. Ditonto: Have you owned both of those properties, 401 and 619 for thirty years?
Mr. Magee: A long time, yes.
Mr. Scalise: The petitions came about because Mr. Sikora asked for a zoning letter, which is common for the financing and he wanted those listed at three-family units and according to all the city records we have, they’re only two-families, so I couldn’t produce the letter for him and that was causing a problem with the financing, I believe. I told him to come before the board to seek a variance was about the only option he really had, other than changing the purchase offer.
Mrs. Ditonto: Larry, it’s very hard for us to know what other units in that neighborhood – I drove the neighborhood yesterday…
Mr. Scalise: There are quite a few multiples; three, four or more units in the area. When the zoning was put together, it was before I came onboard with the city about a year or so. I don’t know reasoning why they laid the zoning out like they did. I know it was to curtail two-families being made into four units and so forth. Because there was an expansion that was occurring previously. Is this the first case of this happening that’s come across my desk? No. Will it be the last? No. There’s a lot that have slipped through and the BPU has two meters on it and doesn’t realize a third unit went in. Unfortunately, it’s more common than you would think.
Mrs. Ditonto: I guess that’s a good question for you, Mr. Magee. Are these all individually metered for services from the BPU?
Mr. Magee: They are individually metered.
Mrs. Ditonto: So, there’s three meters on each?
Mr. Magee: There are three meters on 619. There are two meters on 401.
Mrs. Ditonto: So, how is that divided up?
Mr. Magee: I’ve just been paying the utilities. I’ve always paid utilities there, it’s much easier than having the liens and whatever.
Mrs. Ditonto: Since you’ve owned these properties for a long period of time, I have to say that they look decent. I’ve gone past them. Given some of the issues in that neighborhood, I wanted to make sure that they were in pretty good shape. But, it looks like you’ve done some work, some exterior doors and things and I wondered, did you do any remodeling that led to having a third unit in either of those?
Mr. Magee: I didn’t do the remodeling. It was done. I’ve done updates as far as doors and windows and siding, roofs and whatever. I’ve at least tried to maintain my properties.
Mrs. Ditonto: But, you didn’t specifically make a third apartment in either of those locations.
Mr. Magee: No.
Mr. Larson: That was going to be my question as well. Were they up to three units at the time that you bought them as well.
Mrs. Ditonto: Other questions from members of the board.
Mr. Olson: Larry, do they comply from a three-family standpoint? Fire escapes, according to the building code?
Mr. Scalise: I have not been through either of the properties. I don’t know for sure. We could go through and check, but I’ve known Mr. Magee the whole time I’ve been here. His properties are well-maintained. He keeps them up to code, not saying that these ones are, but just based on track record and personal experience, I wouldn’t anticipate that they would be non-compliant.
Ms. Martinez: That they would be compliant or non-complaint?
Mr. Scalise: Would not be non-compliant.
Mrs. Ditonto: But, in order to process this for the sale, as a three-unit, in either of these cases, would you not have to make sure that they were up to code for that?
Mr. Scalise: Yes, and I’m sure Jim would go through it with me and make sure hardwired smoke detectors and all of that, which you usually have in your properties. I wouldn’t anticipate an issue. But, yes before I issue the letter I could go through and they would have to pass an inspection if that would be of interest to the board.
Mrs. Ditonto: I think that would be a requirement.
Ms. Martinez: And I didn’t see any fire escapes on either building.
Mr. Scalise: There’s a misconception when and when they aren’t allowed and without looking at them, to be honest, if it’s just a two-story building, you don’t necessarily have to have a fire escape. That’s when you get into third stories and so forth.
Ms. Martinez: The one definitely has an attic, but it says unused attic.
Mrs. Ditonto: You don’t use the attic as part of the residential space.
Mr. Magee: Both of the attics in both of those buildings are shut off. They are both completely inaccessible.
Mr. Olson: Larry, are there any parking concerns?
Mr. Scalise: I did not look into it, but I’m unaware of any parking issues there. To be honest, the other properties that have three, four, five units have just as much off-street parking as these properties, so I wouldn’t see that being an issue.
Mrs. Ditonto: And just for our own clarification, when these properties changed ownership thirty years ago, the current zoning wasn’t in place, so there would have been no record of how many units were in this multi-dwelling?
Mr. Scalise: I believe the packets you were sent had access to everything I had from the assessor’s office and everything indicated two. Sometimes, I’ve gone through there where one set of cards will say one thing and another set will say another. At that point in time, at least there’s some gray to work with, but both of these came back as two-families. I told Jim I would look, but sometimes we get lucky and sometimes we don’t.
Mrs. Ditonto: I guess my question to you, Mr. Magee, is when you went to finance these two properties, you weren’t asked to prove whether they were two or three-family units?
Mr. Magee: I bought both of them on owner financing.
Mrs. Ditonto: Okay. You didn’t have to go the bank to get any kind of…
Mr. Olson: Ellen, if you look at the property card, you can see Dick Holtz’s writing stating that it was a two-family, for the note there. There was no note on the Crasilla property, where 619 showing a sale in ’75. It didn’t show any notes regarding whether it was a one or two-family. It said two dwellings, I guess he noted it there, two dwellings on the first one and the note for two-families. So, the property cards did show two-families.
Mrs. Ditonto: Other questions?
Ms. Martinez: Does this make them grandfathered in or not?
Mr. Scalise: I prefer pre-existing, non-conforming, but yes to your question.
Mrs. Ditonto: And this is a more general question for you, Larry. How many other properties on those couple of blocks are non-conforming in terms of what’s on the card here versus what we know is in place?
Mr. Scalise: I honestly have no idea. It would take a lot of work to go through the cards and check every house. When they do come up for sale, we’re trying to catch them the best we can. I know the housing inspectors, when they get out, they do their best to verify all that information as well. I can’t even guess how many are pre-existing, non-conforming there and which ones were just created some weekend without anybody’s knowledge.
Mrs. Ditonto: In terms of public safety, though, the information that is in the public records, and I assume that the fire department reacts to, is that it’s a two-family dwelling. Is that correct?
Mr. Scalise: Yes, the fire department, if they looked at the records, they would assume it’s a two-family. If they show up and there’s a third one there – they assess every parcel when they get there in the event of a fire. We look for mailboxes, number of meters as tell-tale signs. Quite often, the neighbors will come running over and say somebody’s up in… That’s part of the reason we like to keep the records so we know what’s in there so there’s no surprises.
Mrs. Ditonto: Yes. That’s a big concern for me.
Mr. Scalise: Obviously the records will be updated after this, so it will be in the system that they are three units instead of two.
Mr. Olson: Ellen, the landlord registration form that was done several years ago, if they’re on file for this property, then it would have shown three families and that’s accessed by DOD, Police and Fire. Todd has them in the black filing cabinet at the second desk if it’s still there and so he would be able to note whether or not forms were filed for that property and with new forms, people didn’t normally do it, but at least police and fire had access to that N drive and they would be able to know exactly who the owner was, who the manager was, if it was an out of town person and the number of units. So, Todd could check when he gets downstairs if either one of those properties has one on file.
Mrs. Ditonto: It’s more current than what is showing on those county cards.
Mr. Olson: Within the last five or six years, yes.
Mrs. Ditonto: Which sounds, to me, like a good way to cross-reference for the busy building inspector that maybe they could check that drawer or whatever it is, N drive.
Mr. Olson; It’s on a drive on the server, so if fire showed up at one of those or police showed up, they have access to that and they could find out who owned it, who the property manger was, if there was one and the type of property.
Mrs. Ditonto: And how many units. One of the concerns that I have, Mr. Magee, is not that you haven’t taken care of the property because, like I said, I thought they looked in pretty good condition, but just that there are a lot of multiple-unit dwellings in Jamestown and there’s been a lot of concern about that and you’re going to be turning this over to new ownership and if we get somebody who doesn’t take care of the property like you did, I would be concerned.
Ms. Martinez: Out of town ownership.
Mrs. Ditonto: Yes. I would be very concerned about, again, six families, possibly being in units that aren’t being taken care of. So, the number of multi-units in Jamestown, especially in that area is a concern to me and the fact that the zoning had been set up for two-family there, but we don’t know how many units are really three in that several block area. At this point, any other questions from the board? There is no one in the audience at this point to ask questions or to talk about the petition, so we would be looking for a motion on the petition to allow three-family units at both 619 West Seventh Street and 401 West Seventh Street in Jamestown. Anyone willing to make a motion? To make a motion in favor or in opposition to it? We’ll take the two together though.
Mr. Larson: I will make the motion; I know that we, as a board, and I personally am not a fan of – I wouldn’t be approving this if it were really a new use as three families for these properties, but given the long history, given the fact of the matter in the neighborhood, which eventually we would hope would be sorted out as records get turned over and ownership gets turned over, that we will have a better idea of how many units are really in this neighborhood, but I will vote to approve this based on the financing considerations concerned and again, the fact of the long history of the use of the property, we’re taking your word for that, that they have been three-family or more for a long, long time.
Mrs. Ditonto: And just for clarification, Mr. Larson, that that’s for both properties; 619 and 401.
Mr. Larson: Correct. Both properties; 619 and 401 Seventh.
Mr. Olson seconded the motion.
Ms. Martinez: My only question is, because they’re going to an owner who is from Hoboken, which is entirely different than Jamestown, thank God, I want to know how we can ensure that the families are going to be safe and that the houses will be taken care of. And we may not be able to do anything, right Larry?
Mr. Scalise: I don’t see how we could guarantee they’ll be taken care of. We have had dialogue with the new purchaser. He has shown good faith effort in properties he does own in upgrading and updating things.
Ms. Martinez: He owns them here already?
Mr. Scalise: He owns the two buildings, the Whitmeyer Buildings, over on Second Street across and he has been putting money in and been updating things. He has had a dialogue with us. He does have a property manager that’s local and accessible. We’ll keep our fingers crossed and hope for the best.
Mr. Larson: And we can hopefully trust code enforcement to keep an eye on known out-of-town owner properties in particular.
Mr. Scalise: We do have a dialogue with his property manager.
Ms. Martinez: Actually, you’re not allowed to do that.
Mrs. Ditonto: I think we could put a condition though, I think we asked, if you would check Larry these buildings to make sure that they are up to code; prior to the final approval of this.
Mr. Scalise: Before I write the letters.
Mrs. Ditonto: That’s right. Before you write the letters indicating that, if this is voted on and approved, that there would be a condition that you would be going through and checking for codes.
Mr. Scalise: Yes. I’ll go through with Mr. Magee.
Mrs. Ditonto: Is that condition amenable?
Mr. Larson: I agree with that and I would add that to my motion, yes.
Carried: 4 – 0
There being no further business, the meeting was adjourned.
Todd M. Thomas, Secretary
Zoning Board of Appeals