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HomeMy WebLinkAbout20190029 Val-Kill Properties 4-10-19 Correspondance FERRADINO BUSINESS&LEGAL STRATEGY FERRADINO FIRM, PLLC Stephanie W. Ferradino, Esq. stef@ferradinofirm.com April 10, 2019 Saratoga Springs Zoning Board of Appeals Via Email City Hall—474 Broadway Saratoga Springs, NY 12866 Re: Val-Kill: 40 Second Street, Saratoga Springs, NY 12866 Dear Board Members: The purpose of this letter is to correct some misinformation that has been submitted by neighbors who oppose the above application. We anticipate a more substantial submission and are compiling the documents you requested during the last meeting. One of the letters points out the improvements Second Street has seen in the last decades. You will note in the third slide of our visual presentation at the March 4, 2019 meeting that my clients have contributed to the efforts of their neighbors. The home has been completely repainted from the bright pink and purple residence to more subdued colors in keeping with the neighbors' properties than the previous home had. They have installed railings to the porch for aesthetic and safety purposes. They have voluntarily repaired the crumbling, unsafe sidewalks, which were not required by the city but provide a benefit to the neighborhood. The interior improvements to both structures have helped to attract tenants who will be good neighbors and respectful of the neighborhood. They have also replaced windows to the cottage which were old and inefficient. While one of the opposition letters praises neighbors who have made improvements to their properties, another one criticizes my client's replacement of windows. It may be helpful to point out that the outcome of the application will not change the appearance of the site or the character of the neighborhood. Whether the setback variances are granted is academic. The size of the lot and the existing structures will not be modified following the approval or disapproval of the variance application. The structures are pre-existing, non-conforming and allowed to remain on the site as they are currently located. The applicants have made no claim that their use is pre-existing,just the structures. The setback relief is only required because of the dimensional relief required by the city's code—that of adding a principal structure to the lot. The criticisms about the location of the cottage, it's proximity to the lot line 63 Putnam Street, Suite 202 • Saratoga Springs, New York 12866 (518) 260-1229 • www.ferradinofirm.com Page 2 and the appearance of the cottage do not have any bearing on the application. Along a similar vein, I believe we all recognize the name of the structure—be it a cottage, studio, garage or apartment -does not change the structure. My clients have worked hard to make the structure a welcoming and inviting space. They have chosen to call it a cottage as they feel that is the most appropriate name for the space they have worked hard to refurbish. This is not an application for a use variance. The city of Saratoga Springs Code and the ZBA process requests for additional principal structures on one lot as area variance relief. Much of the neighbor opposition relates to the mistaken belief that my clients purchase the property with the knowledge and intent to use the property for a prohibited purpose. That couldn't be further than the truth, and this is documented in the application and the city's own files of the multiple errors made by others which led us to this application. To the extent this history relates to the standard of self-created hardship, please let me offer the following information. Since 1992, the courts have found that self-created hardship is only one of five factors which are considered and balanced when making a determination whether to grant an area variance. The standard does not have to be met in order to grant the relief. The city's own language on the zoning application form acknowledges this and states "this does not necessarily preclude the granting of the area variance." While there is a presumption of actual or constructive knowledge of limitations on the use of property, it is not absolute. Cases have found that the presumption can be overcome with a showing of reasonable reliance on documents and statements of officials as well as demonstrating that the conditions of the property were significantly worse than discerned at the time the property was purchased. The standard is "reasonable diligence" and we believe that test has been demonstrated and satisfied. Certainly the fraudulent inducement by both the owner and realtor were contributing factors in my client's exercise of reasonable diligence. Therefore, even if my clients had full knowledge of the restriction—which they did not-they are still entitled to relief. The statement that the neighbors made about the need for approvals and a building permit is wrong. The stop work order was filed because the use was being challenged, not because a permit was necessary. This was confirmed by two different building inspectors who visited the property on September 19, 2017 (John Barney) and September 25, 2017 (Jim Herkel). Opposing attorney also questions what the inspectors were shown. The property is 330 sf. It would be hard to hide anything when an inspector was present and conducting a walk through. Both inspectors advised that no permit was necessary for the work that was being done. The information the opposition's attorney surmises about what happened and what direction my clients gave to their attorney is simply conjecture, and the speculation is completely false. My clients hired professionals, both a realtor and an attorney, to assist them in the purchase. My clients are not "experienced real estate investors" nor is Gina a practicing attorney. They did not have any notice there might be issues with the property. My client does not practice law, but instead hired an attorney who routinely handles real estate, and who was once a member of one of the city's municipal development boards, to represent them in the transaction. They did not direct their attorney to do any specific action regarding inquiry into the zoning. Instead, they relied on the advice on the purchase of the property and proceeded to closing. It was only after the stop work order was issued that they inquired whether the attorney made inquiry into the zoning. It was at that time, in September or October that they learned that their attorney had made inquiry to the city, did not follow up when a response was not received before Page 3 closing and then did not disclose to them the information received about the violation from the city after closing. Their attorney may not have exercised due diligence in her representation of my clients. The attorney also later withheld information from them about an illegal use on the property that the attorney assisted them in purchasing. It's ironic that my clients are in this situation because they relied on two different professionals that they hired and relied on to do their jobs, yet the neighbors ignore this fact and chastise them (page 7)for not hiring more professionals to give them advice. Despite these actual facts, opposing attorney paints my clients as the"bad guys," and depicts them as careless, reckless, sloppy and intentionally evading zoning requirements. I find it shameful that they are being depicted this way when they are the only parties to this situation that have been honest, diligent and upstanding in their approach. It is my expectation that the board will not tolerate the scathing misconstruing of facts as we proceed. The owners have done nothing with the loft area and stopped work when they were directed by the city. The comments relating to the railing, stairs, etc. are based on speculation and conjecture by opponent's attorney and not related to the facts of this case. There is nothing in the second to last paragraph of the Williams letter which is truthful. The final paragraph shows a lack of understanding of the law relating to zoning and a misconstruing of the facts of this case. Because the property was built before the code was enacted, it is normal for a certificate of occupancy to be lacking. I trust the board understands the inaccuracies and the nuances of the law and will communicate with your own counsel regarding any questions you may have. Finally, Mr. William's letter says the following: "Whether because of carelessness, a reckless disregard for the applicable law and the clearly discoverable facts, or out of an intentional effort to evade zoning and building code requirements, it is difficult to argue that this problem was not self-created." We might say the same of Mr. Williams unauthorized home occupation. As of April 5, 2019, Mr. William's is in violation of the city code which (1) does not authorize professional offices in the UR-2 zone (his letter states"Please address all correspondence to our new address: DC Williams and Associates") or(2) home occupation requirements which state that an application to the city must be made before home occupancy is allowed. As of April 5, no such application had been made. Finally, to the extent there are no other members or associates in the firm, Mr. William's is in violation of the ethical provisions of NY which govern attorney conduct. We doubt, to use Mr. William's words describing my client, that this is "because of[his] carelessness, [his] reckless disregard for the applicable law... or out of an intentional effort to evade zoning and building code requirements." While we have no interest or intent to seek the city or state's enforcement of Mr. William's violations, it does provide a good example of how intelligent, legally oriented individuals can struggle with the nuances of the zoning code and arise in a place where relief is required. Thank you for your time and attention to this matter. Very truly yours, s 411, aswo Stephanie W. Ferradino Cc: Justin Grasso