TOWN OF CHARLTON

ZONING BOARD OF APPEALS

 

Decision of April 10, 2007

 

 

Applicants:              Kathryne E. Gutto, property owner

                        Carmen Gutto, authorized representative of owner

Applicant Address: 1563½ Division Street, W Charlton, N.Y., 12010

Case No.:  07-01

Tax Map No.: 225.-1-66.1

Appeal Request: Area Variance  

Newspaper Publication of Notice:  Daily Gazette

Date of Notice: March 30, 2007

Date of Public Hearing: April 10, 2007

Location:  Charlton Town Hall, 8:00 PM

_____________________________________________________________________________

 

Zoning Board of Appeals members present: Mary A. Schmidt, Chair, Edmund Malis, Nilda Burke and Kurt Vanderhorst.  Absent and excused:  Carlton W. Ellms, III.

 

 

Kathryne E. Gutto and Carmen Gutto applied for a subdivision with the Planning Board where they requested the subdivision into two lots from a single homestead parcel of 54 +/- acres. The Planning Board designated itself lead agency for SEQRA review and referred the case to the ZBA for an area variance relative to the road frontage for one new lot entering Route 67.  The road frontage for this proposed new lot was 195 feet, therefore being approximately 5 feet less than the Town of Charlton Zoning Law requirement of 200 feet.  Subsequent to the application filed by the Guttos, and following a recommendation suggested by the Planning Board in its review letter to the Zoning Board of Appeals, the applicants amended the proposed two lot subdivision.  The new subdivision proposal would now include a 10 acre parcel with 395+/- feet along Route 67, leaving a second parcel of 44+/- acres and being the remnant of the former homestead parcel previously approved by the Charlton Planning Board.  The new proposed subdivided parcel of 10 acres fronting on Route 67 was not subject to the revised variance appeal.  The remnant lot of 44+/- acres now had only 120 feet of road frontage along Division Street, which created the need for an area variance in order for the proposed, revised two lot subdivision to be returned to the Planning Board for further consideration.

 

This property is in the Residential Agricultural District. The applicants supplied a detailed map of the proposed subdivision.  The ZBA received advisory opinions from the Planning Board and the Charlton Environmental Commission.

           

The matter having come to be heard before a duly convened meeting of the Zoning Board of Appeals on the 10^th day of April, 2007 and the facts, matters and evidence having been produced by the applicants, Town Zoning Administrator, Town Environmental Conservation Commission, Town Engineer and all other interested parties having been duly heard, received and considered with all due deliberations having occurred, the Zoning Board of Appeals then considered the following factors:

 

Area variance:

 

The Board acknowledged that the Charlton Planning Board was the lead agency for SEQRA review with respect to this application. 

The Board then considered the five factors required by Town Law and Local Law with respect to an area variance.  The result of that consideration is as follows:

 

            1.  Whether an undesirable change would be produced in the character of the neighborhood or a detriment to nearby properties would be created by the granting of the variance: 

 

            Based upon the information presented during the public hearing and subsequent determinations made by the Zoning Board of Appeals in consultation with the Town Engineer and Town Zoning Administrator, the Board determined that the granting of the requested variance would not produce an undesirable change to the character of the neighborhood and would not be detrimental to nearby properties.  The 120 feet driveway access is and has been existing on Division Street since the original subdivision approval of the Gutto properties in 1995.  Access from the Gutto “homestead” parcel has been limited to the 120 feet driveway access area and the granting of the requested area variance would not affect the neighborhood characteristics.

 

            2.  Whether the benefit sought could be achieved by some other means:

 

            The original proposal by the applicants was an alternative proposal to the one considered by the Zoning Board of Appeals.  However, the original proposal requesting a subdivided lot on Route 67 would also have required an area variance and would not have changed the exclusive access by the homestead lot to Division Street.  Based upon the recommendation of the Plannign Board, the enhanced viability of the 10 acre lot which would require no variances and the consideration of the practical aspects of the amended proposal brought before the Zoning Board of Appeals, it was determined that the benefits sought was most appropriately the revised proposal submitted by the applicants.

           

 

3.  Whether the request was substantial:

 

            The Zoning Board of Appeals determined that the Charlton Zoning law requires 200 feet of road frontage for a permitted lot in a Residential/Agricultural District.  The Board further recognized that the existing road frontage from the homestead lot to Division Street was 120 feet.  The Board determined that the requested variance of 80 feet is substantial. 

 

4.  Whether the proposed variance would have an adverse effect or impact on the physical or environmental conditions in the neighborhood or district:

 

            The Zoning Board determined, for the reasons set forth to question1 above, that there would be no adverse effect or impact on the physical or environmental conditions in the neighborhood.  The result of the granting of this area variance would effectively change nothing with respect to the use of this property as relates to physical or environmental issues. 

 

5.       Whether the alleged difficulty was self-created:  

 

The Zoning Board determined that the alleged difficulty was self-created by the applicant.  The applicant’s decision to resubdivide the approved homestead lot as originally granted by the Charlton Planning Board was a decision solely of the applicant and was based on no other Charlton Zoning Law requirement than the applicant’s request to create two lots out of the original homestead lot.  Further, the applicant chose to change the requested variance from the initial 5+/- feet variance to an 80+/- feet variance as described in this decision.

 

            Based upon the above analysis of this variance appeal, the Zoning Board of Appeals voted unanimously to grant the area variance according to the proposed subdivision map submitted by the applicants and as described in this decision.  The Zoning Board of Appeals further placed a condition upon the variance that neither the 10 acre lot nor the 44 acre remnant homestead lot would ever be able to be further subdivided.  The Zoning Board of Appeals also indicated to the applicant that the referral back to the Planning Board would include a recommendation to review the various issues presented during the public hearing.

           

 

                                                                       

Respectfully submitted,

 

 

Mary A. Schmidt

Chairman Charlton Zoning Board of Appeals