ZONING BOARD OF APPEALS
TOWN OF CANAAN
COLUMBIA COUNTY, NEW YORK
December 18, 2007

Present: David Cooper, John Stelling, Ann Pearce, Pat Liddle
Absent: Jean Dickason

Chairman Cooper called the meeting to order at 7:00 p.m. with 4 people in the audience. The Board will reconvene the public hearing on File 2007-8. Motion by John Stelling to accept the November minutes as submitted with 2nd by Ann Pearce. All in favor.

David Cooper read the legal notice.

Attorney Andrew Howard presented the requested sketch plan showing the footprint, the actual distance (200’) to the left-side neighbor, and the proposed septic system and driveway. John Stelling discussed differences in the locations of the septic system and driveway between the latest sketch and the previous one. Mr. Howard indicated the driveway is now farther away from the objecting neighbor. David Cooper found all the requested pins when he visited the site. Architect Kate Johns said the septic is situated where it is at the recommendation of the excavator, in an area where the trees have already been cut.

Mr. Howard said there is a hummock between the home site and the left-side neighbor, which can be seen from Peaceful Valley Road. The balloons can just be seen between the two through 200’ of trees. The reason for the proposed design is to capture the view, which is what Mr. Simmons purchased, while cutting down as few trees as possible. This home would be within the ridgeline and less obvious than the yellow home that is code-compliant. If the Board denies the variance, Mr. Simmons will have Ms. Johns come up with a compliant design that would result in more trees being cut to get the view the tower would have provided. Comparison was made to the Walden Road house. The Wistorts, left-side neighbors, object to the tower looming over them. The ZBA must assess this: The Simmons site is away from the Wistorts,’ is lower and within the trees (100’ of trees on the Wistort property and 200’ on the Simmons property). There will be 14’x16’x16’ of the proposed residence seen through 300’ of trees that will be diffused. The variance would do a better job of protecting the ridgeline and meet everyone’s needs more aesthetically. Mr. Howard submitted a restatement of their previous narrative. Kate Johns submitted historical photos of other houses in the style Mr. Simmons wants to build. A 4-story tower is an integral part of the Italianate design, which is recommended for mountainous sites. The tower has glass on 3 sides, like an open porch. There is no intent to have bright lighting on the tower.

Mr. Cooper read the December 18th letters from the Mercer Mountain Lot Owners Association and the Wistorts. Mr. Cooper discussed the differences between an area and use variance and their different standards of proof. The Board gathers as much information as possible to make a rational decision based on facts.

Mr. Wistort indicated some facts that should be considered: the tower is not necessary for the view and the screen of trees is thin. This matter boils down to whether the Board wants to grant the variance on the basis of aesthetics. The view can be had from a house that meets the zoning standards. The Wistorts contend a normally sized house can be more easily screened than a house with a 49’ tower. They would rather see some trees removed than see a tower to the south of their house, which is their primary view. In response to Ann Pearce, Mr. Wistort said his square footage is ~4000’ and Ms. Johns said the Simmons house would be ~6000’. She added that the entire Simmons house would have a sprinkler system and special fire separation walls for the upper part of the tower because of the height. Discussion of where Mr. Wistort’s pictures were taken from.

In response to Mr. Cooper, Ms. Johns said if some of the height were taken off the tower, it would take away from the integrity of the whole concept. They have made the tower as short as possible while maintaining headroom.

Motion by Ann Pearce with 2nd by John Stelling to close the hearing. All in favor. Hearing closed at 8:02 p.m. and deliberations began immediately.

David Cooper finds the design of the proposed house interesting but also recognizes the neighbors’ concerns. The properties on the mountain are closer than one might think, and there are many types of houses up there. The widest trees there are about 14”. The Board has to assess the appellants’ desire for a certain design and the impact on the neighbors.

Pat Liddle wonders how we would say no to the next applicant if we grant this variance based on aesthetics. What rationale is inappropriate? Pat can see no solid reason to grant this variance. Ann Pearce said the only thing we could say is it is site-specific. In any other setting it would have been reviewed and would not have come to this. John Stelling said it would be easier if there were a solid reason to grant this variance. If the house couldn’t be seen from anywhere, it would be easy. A lot has been made of the physical characteristics of the site. When John went there, it was easy to see: there is a lot less tree coverage now and their appeared to be a lot more clearing done. David Cooper said Canaan has no regulations on cutting trees or ridge protection and he doesn’t know why the height number was chosen. The criteria for an area variance are looser than in earlier times, when it would be a practical difficulty or economic consideration. The case law isn’t there now. Aesthetically, it would be a much different house without the tower. David is not sure the rationale that everyone else might do it is sufficient to deny.

David Cooper said the Board can make reasonable stipulations because it is a variance, e.g. a restriction on the size of trees to be cut, codifying the construction elements that have been presented, retention of the design elements that minimize the impact. However, any of these could be changed anyway and the Board couldn’t do anything about it.

The Board worked on the rationale using the following questions while reviewing the appellants’ answer to the same questions: (1) would there be an undesirable change to the character of the neighborhood? The Board agreed the only impact is to the immediate abutters and it’s aesthetic, not economic. The neighbors will see and be seen. The Board gets the sense the MMLOA is not in favor of this variance. They depend on the zoning, which does allow for area variances. They may be more interested than they were now that there are more houses up there. All the houses up there are situated to maximize the view. Any possible mitigation is based solely on the ambient tree line and its preservation. (2) Can the appellant achieve the benefit by a feasible alternative? Discussion of what the benefit is: the view or the design. Decided on No. (3) Is the requested variance substantial? Yes, if you look at the numbers it is a 40% variance although not prohibitive. No, if you look at the design elements. The 16’x16’ tower would require a building permit if it were a stand-alone construction. Decided on Yes. (4) Would the variance have an adverse effect on the physical or environmental conditions in the neighborhood? Everyone agreed No initially but later discussion of neighborhood vs. impact on abutters. (5) Is the alleged difficulty self-created? Everyone agreed, yes.

Motion by David Cooper with 2nd by Ann Pearce to call a special meeting to continue deliberations at 7:00 p.m. on Wednesday 12/19/07.

Motion by Ann Pearce with 2nd by John Stelling to adjourn at 10:15 p.m. All in favor.

For the Zoning Board of Appeals,


Julie Alexander
Clerk

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