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HomeMy WebLinkAbout20230161 8 Taylor Shed Public Comment Buydos 1881 Western Avenue, Suite 200, Albany, NY 12203 ♦ (518) 855-3535 Jacob F. Lamme Email: jlamme@mclclaw.com Phone: (518) 675-7740 April 21, 2023 VIA EMAIL Gage Simpson – Chair City of Saratoga Springs Zoning Board of Appeals 474 Broadway Saratoga Springs, NY 12866 RE: Gary and Laurie Critelli (8 Taylor Street) – Project No. 20230161 Dear Chair Simpson: I have been retained to represent James Buydos, an adjoining landowner to the above- referenced parcel, relative to the pending area variance application submitted by Gary and Laurie Critelli, seeking retroactive approval for a shed and patio that were constructed long ago in violation of the City’s zoning laws and regulations. Mr. Buydos submits this letter in opposition to the Critelli’s variance application. Mr. Buydos purchased his property at 6 Taylor Street in 2007. When the house next door at 8 Taylor Street (now the Critelli’s home) was constructed, it was built on a very small lot of approximately 6,800 square feet, leaving a very small backyard for that home. The prior owners left it open and unfenced. In 2015, the prior owners submitted a variance application to construct a 12’ x 10’ deck in the small backyard, but ultimately withdrew the application (PB App. No. 2847), presumably because they realized that the project was impracticable and uncharacteristic of the neighborhood given the lot size and setback restrictions. Two years later, in June 2017, and ten years after Mr. Buydos purchased his property, the Critellis purchased 8 Taylor Street. From approximately 2018 until 2020, the Critellis made various improvements to their property, including the following: 1. Installation of a permanent pergola that impermissibly encroaches into the minimum setback requirement of at least 8 feet from the side lot line abutting 6 Taylor Street. This minimum setback requirement is set forth in the City’s Zoning Law relative to properties located in the UR-2 Zoning District. City of Saratoga Springs ZBA April 21, 2023 Page 2 of 7 2. Installation of a patio, as defined the City’s Unified Development Ordinance (“UDO”) Article 21, that impermissibly encroaches into the minimum setback requirements of 8 feet from the side and 25 feet from the rear lot lines abutting 6 Taylor Street and 4 Richard Avenue, respectively. 3. Installation of a shed that impermissibly encroaches into the minimum setback requirements of 8 feet from the side, 10 feet from the corner side, and 25 feet from the rear lot lines abutting 2 Richard Avenue and 4 Richard Avenue, respectively. 4. Installation of a fence gate that, when open, encroaches onto 6 Taylor Street, in violation of the City’s UDO Section 9.5(J)(1)(c). “A fence or wall, including all posts, bases, and other structural parts must be located completely within the boundaries of the lot on which it is located.” 5. Installation of a fence where the vinyl is inconsistent with the City’s adopted Comprehensive Plan in that the portion of the fence made to be the interior portion faces outward to face the yard of 6 Taylor Street. 6. Installation of a 2.5-foot high by 6-foot long portion of a fence (a “spite fence”) along the 6 Taylor Street property line that is inconsistent with the City’s adopted Comprehensive Plan as it does not attach to a fence that exists along 100% of the length of the property line. Mr. Buydos assumed that the Critelli’s had obtained the requisite building permits and variances for these permanent structures, but a FOIL request and response in January 2023 revealed otherwise. Mr. Buydos raised these issues with the Critelli’s and sought to resolve his concerns and property right claims, as their adjacent neighbor, with the Critelli’s, but his efforts to amicably resolve the matter were rebuffed. The Critelli’s responded by haphazardly adding extraneous materials to the fence in order to increase the privacy, with said alterations being substandard and inappropriate, taking down the “spite fence” and removing the infringing gate (leaving a gaping hole in the fence line), before filing the instant variance applications for the shed and patio. Notably, no variance application was made for the pergola, which sits less than 1 foot from the property line. Given the Critelli’s response to his attempt to inform them about their building and zoning code violations and work through the issues amicably, Mr. Buydos has commenced an action in Saratoga County Supreme Court against the Critellis, in which he asserts causes of action for: (1) construction of unpermitted permanent structures on private property, (2) construction of permanent structures in violation of setback requirements, (3) installation of City of Saratoga Springs ZBA April 21, 2023 Page 3 of 7 fences in violation of the City’s Adopted Comprehensive Plan, (4) private nuisance, and (5) trespass. That action is pending. The law is well-settled that “in making its determination whether to grant an area variance, a zoning board of appeals is required, pursuant to Town Law § 267-b(3), to engage in a balancing test, weighing the benefit to the applicant against the detriment to the health, safety and welfare of the neighborhood or community if the variance is granted.” Ifrah v Utschig, 98 NY2d 304, 307 (2002). To that end, a ZBA must consider whether: “(1) an undesirable change will be produced in the character of the neighborhood or a detriment to nearby properties will be created by the granting of the area variance; (2) the benefit sought by the applicant can be achieved by some other method, feasible for the applicant to pursue, other than an area variance; (3) the requested area variance is substantial; (4) the proposed variance will have an adverse effect or impact on the physical or environmental conditions in the neighborhood or district; and (5) the alleged difficulty was self-created.” (Id., pp. 307-08). Here, the Critelli’s cannot meet the standard required for this ZBA to grant the variance sought for their shed or patio. First and foremost, the shed (and pergola, which is not before the ZBA in this application) are structures that are inconsistent with the neighborhood given the size of the lots in the subdivision. A simple drive through the subdivision, or review of an aerial photo (see Google Maps photo below) demonstrates that virtually nobody in the neighborhood has accessory structures, such as a shed or pergola, given the small lot sizes and inability to meet setback restrictions. City of Saratoga Springs ZBA April 21, 2023 Page 4 of 7 Had the City envisioned the homes in this neighborhood having sheds and other accessory structures, it would have not approved the subdivision with small lot sizes in the early 2000s, but rather would have had the developer increase the lot sizes and develop a smaller number of lots. Yet, the Critelli’s took it upon themselves to construct their shed and pergola without regard to the aesthetics of the neighborhood, and without regard to the building code and zoning code. In their variance application, the Critelli’s state that “There is minimal visibility for anyone in the neighborhood,” and “The only neighbor who can see the shed agreed to the placement.” (See Variance Application, pp. 6-7). This statement is false, as demonstrated by the plain visibility of the offending structures from Mr. Buydos’ porch and the vantage point from the street (see photos below): City of Saratoga Springs ZBA April 21, 2023 Page 5 of 7 “[D]eliberate misrepresentations and deceptions by a municipal applicant, standing alone, permit the denial of requested variances.” Matter of Caspian Realty, Inc. v Zoning Bd. of Appeals of Town of Greenburgh, 68 AD3d 62, 69 (2d Dept 2009). Moreover, with regard to the Critelli’s proposed variance for the patio, Mr. Buydos maintains that the patio has an adverse effect or impact on the physical or environmental conditions in the neighborhood, and specifically to his property, because the City’s UDO requires that lots must remain at least 25% permeable. The Critelli’s patio does not appear to be made of permeable materials as required by the City’s UDO, and should be considered an impermeable/impervious surface as set forth in Article 21 of the UDO. Given the house, driveway, shed, patio and other improvements on the Critelli’s property, there is concern that water runoff affects and will continue to affect Mr. Buydos’ property. The Critelli’s patio is constructed within the minimum setbacks and is simply too close to Mr. Buydos’ property. The patio is not a walkway, as the Critelli’s maintain in their application, but rather an entertaining area as clearly demonstrated by the photos attached to the application. The variances requested by the Critelli’s are most definitely substantial in nature. Their request is not simply that they cannot comply with the minimum setbacks by a matter of inches or a few feet. Rather, the size of their lot is such that they cannot have a shed (or pergola) on their property at all given the setbacks. Given this fact, it is a slippery slope to grant the City of Saratoga Springs ZBA April 21, 2023 Page 6 of 7 requested variances because others in the neighborhood will then seek variances for accessory structures, including perhaps Mr. Buydos given the configuration of his lot and the Critelli’s lot, which the original developer changed at the 11th hour in order to make the Critelli’s lot meet the minimum lot size requirement (see survey below)1: Finally, the Critelli’s zoning code violations are self-created in that they purchased their property knowing full well that the lot was near the minimum buildable lot size such that accessory structures were not contemplated by the original developer, builder or City, yet they built their patio, shed and pergola (without permits) anyway. Where an applicant purchases their property knowing that there is a zoning restriction in place, the hardship is self-created by default. See Clark v. Hempstead Bd. of Zoning Appeals, 301 N.Y. 86 (1950), cert. denied, 340 U.S. 933 (1951) (annulling a variance and stating “[w]e could end this opinion at this point by saying that one who thus knowingly acquires land for a prohibited use, cannot thereafter have a variance”); see also Rosewood Home Bldrs., Inc. v Zoning Bd. of Appeals, 17 AD3d 962, 964-965 (3d Dept 2005) (upholding the denial of an area variance seeking retroactive 1 If the Critelli’s are able to fence their property in, with an appropriate, permitted fence, in a manner that allows them to have a gate opening up onto the little jog extending up Mr. Buydos’ property, a small shed on Mr. Buydos’ property would be the only feasible way to give him privacy from what would otherwise appear to be the Critelli’s having an unconventional gate that allows access into the middle of Mr. Buydos’ backyard. City of Saratoga Springs ZBA April 21, 2023 Page 7 of 7 permission to construct a townhouse in violation of minimum setback requirements because the aesthetic impact of the nonconforming structure in the neighborhood outweighed the self- created financial nature of the applicant’s dilemma – i.e., building a structure before obtaining the necessary variance). Based on the foregoing, Mr. Buydos implores the ZBA to enforce the City’s zoning laws and regulations and deny the Critelli’s variance applications. In addition, Mr. Buydos respectfully requests and encourages the ZBA Board Members and City Building Inspector to visit his property and the Critelli’s property prior to rendering decisions on the pending applications, as an in-person visual assessment of these issues will be most useful given the unique layout of these properties. Thank you for your attention to this matter. Very Truly Yours, MONACO COOPER LAMME & CARR, PLLC Jacob F. Lamme cc: James Buydos Patrick Cogan - patrick.cogan@saratoga-springs.org