Meeting Minutes : Zoning Board of Adjustment



June 6, 2011

Zoning Board of Adjustment Members Present – Stanley Markowski, Chair, Jack Orvis, Clarence Greeno and Jack Shedd.  Absent – James Morale, Richard Conway – Vice Chair, (reclused) and John Mitchell.


Others Present – Richard Conway, Stephen Hitchcock, Robert Kerstan, Stephan Wright, Ken Gagnon, Atty. Jack Facey, Amy Loomis– Zoning Administrator, Kelly Giard – Recording Secretary.


S. Markowski, Chair, called the Zoning Board of Adjustment to order at 7:43 PM.


The purpose of the meeting was for a Conditional Use Permit by Robert Kerstan and Susan Woodworth. The property is located at 200 Burr Pond Road, Pittsford, VT.  The parcel ID # is 1198.


The warning in town was displayed in the Municipal Office, Pittsford Post Office and the Florence Town Office, and on the town website on May 20, 2011, as well as published in the Rutland Herald on May 20, 2011, with a certificate of mailing to the abutters on May 19, 2011.   S. Markowski read the warning.


S. Markowski swore in Rev. Robert Kerstan – 356 Main Street – P. O. Box 86 – Grahamsville, NY (owner of property located at 200 Burr Pond Road); Ken Gagnon – 1831 Corn Hill Road (owner of camp to the west of the Kerstan property); Rick Conway  –  345 Plains Road, Pittsford – store owner and representing his wife, Sandra Conway, who has interest in the Wright Spot Trust; Stephan Wright – 148 Pinnacle Ridge Road – Rutland Town, also a representative of the Wright Spot Trust, which is located to the north of the Kerstan property.


A. Loomis explained the permit requested as being for an extension of a dimensional Nonconformity Permit.  The property is located in Conservation 2 with setback requirements of 40’ in the front and 25’on the sides and rear.  Currently, the structure is of non-conforming.  The lot size is 75’ X 100’.  A. Loomis indicated that Mr. Kerstan is looking to replace a half-bath with a full-bath and a deck.  Mr. Kerstan indicated that an existing porch will be removed and a bedroom will also be installed, in addition to the enlargement of the bathroom and a deck.  Mr. Kerstan indicated that the porch would be moved, once the addition is completed.  Mr. Kerstan also indicated that there are no closets in the structure, currently.  Mr. Kerstan indicated that this property will be intended for a retirement property in 7-years, when retirement time comes.


S. Markowski asked for explanation of the setbacks.  A. Loomis indicated that the setback would not be disturbed to the north.


R. Conway indicated that all property adjoiners be notified.  R. Conway indicated that he has spoken with Jim Hess, who is also an adjoining landowner, who received no notice and is not listed on the notice of mailing.  R. Conway indicated that he has reviewed the tax map.  A. Loomis explained that the Listers’ consider the properties as being “merged”.  R. Conway also indicated that there are also other property owners that did not receive notice of the hearing.  The tax maps were reviewed.  R. Conway read that the application asks for abutting property owners be listed.  There was discussion concerning this and Atty. Facey inquired how many residents were not notified.  Following much discussion and review of the tax map, it was determined that there was only 1 property owner that was not notified.  Atty. Facey inquired if the existing property owners were notified.  R. Conway indicated that he has spoken with Mr. Hess, who indicated that he had not received notice.  Mr. Gagnon indicated that he spoke with Mr. Hess over the Memorial Day holiday and mentioned the project to him and indicated that there would be a hearing on June 6.  Atty. Facey clarified that the notice was properly warned.  A. Loomis indicated that there were 3 notices in town, the newspaper, and letters sent via certified mail.  Atty. Facey reviewed The Zoning Regulations for the clarification of the notice of meeting requirements.


S. Markowski explained that the Conservation 2 requires a 5-acre lot, however, the lots in the Burr Pond area fall into pre-existing, non-conforming use.


R. Conway indicated that the new Zoning Regulations indicate, on page 17, that a Conditional Use warning, “Section 501 – Application for a Conditional Use”.  A. Loomis clarified that the warning stated that this was for an extension of a dimensional Nonconformity.  Atty. Facey indicated that this would not be a variance.  R. Conway indicated that this was warned as a Conditional Use.  Atty. Facey agreed that the meeting was warned properly.  R. Conway indicated that the setbacks are less than requirements and the property is in the Conservation district.  Atty. Facey explained that the use is conforming, the non-conformity is that the setbacks are not met.  Atty. Facey explained that the non-conforming structure explanation is located on page 30 (section 808).  The members of the Zoning Board of Adjustment agree that this was a non-conforming structure.  Atty. Facey discussed the Zoning Regulations and the application form.  The current form only lists variance or conditional use.


S. Markowski inquired if the members of the Zoning Board of Adjustment agreed that this was for a non-conforming structure, to which the members were in agreement.


S. Markowski explained the expansion of a non-conforming structure may be expanded if there is not a greater nuisense to the public health, safety or welfare than the existing non-conformity.  Mr. Kerstan indicated that it is his intention to raise the structure and build a foundation, add-on to the structure, installing new siding, roof, windows, insulation, and orientating the roof to be south facing with solar collectors.  The structure will be intended to be a year-round residence.  Mr. Kerstan indicated that it is his impression that the structure would be safer for all around and would “green-up” the structure.  Atty. Facey asked Mr. Kerstan for clarification of the roofline.  Mr. Kerstan explained the roofline as being re-orientated to utilize solar power in the future.

Mr. Wright indicated that the safety and welfare are a concern at the pond as this is a fragile environment because the septic systems are unknown.  Mr. Kerstan explained that he knows only what the realtor told him upon purchase.  Mr. Gagnon indicated that he also had looked at the property and was told that there is a 500-gallon tank.  S. Markowski inquired the slope from the pond.  Mr. Kerstan indicated that his property slopes away from the pond.  Mr. Wright indicated that his concern is not with Mr. Kerstan, however, a concern of the property being converted from a seasonal property to a year-round property.  Mr. Wright expressed concern of the septic systems failing due to over-use.  Mr. Kerstan indicated that the property would not be used as a year-round facility for at least 7-years, due to retirement goals.


Atty. Facey inquired if Mr. Kerstan had been in contact with the State officials with the proposal.  A. Loomis indicated that an e-mail response from Rick Oberkirk was included in the packets that were presented.  Atty. Facey inquired the current water system of the property.  Mr. Kerstan indicated that, currently, the water system utilizes the water from the pond and that, if the current system failed, a new well would be drilled.  Mr. Kerstan indicated that a new well would be better for the area.


R. Conway indicated that Mr. Kerstan had a well drawn on the sketch.  Mr. Kerstan indicated that this is a “proposed well”.  R. Conway inquired if the well would be within distances of the Wright Spot Trust property line.  Mr. Kerstan indicated that any well would be drilled within acceptable distances.  Atty. Facey inquired if Mr. Kerstan was under the impression that a permit was not needed from the State.  A. Loomis indicated that the property is not being proposed as being changed to a year-round structure as yet.  Atty. Facey explained that there will need to be a permit from the State to change the structure to a year-round facility, when the time comes.  Mr. Kerstan agreed to obtain any applicable permits.  Mr. Wright inquired how the enforcement is carried through.  Atty. Facey indicated that enforcement is an issue, however, there are neighbors, etc.  R. Conway inquired if the Zoning Board could include in a decision that any and all state permits must be obtained.  R. Conway indicated that he had also spoken with Jim Groton’s son (former property owner) with regard to the septic system.  Mr. Groton indicated that he did not know the septic and was not enthused about having an engineer research the property.  R. Conway indicated that there is a substantial amount of water that runs in the road.  Atty. Facey indicated that permits would be required to change the property usage from seasonal to year-round.  R. Conway indicated that the placement of a well is a concern and would need better clarification of the well placement.


Atty. Facey discussed the sketch and orientation was clarified.  Mr. Kerstan is proposing that the well be placed within 25’ of the road.  Atty. Facey inquired what the distance would be from the Wright Spot Trust.  Mr. Wright indicated that their property is one of the few that do not have a septic system and explained that an area was purchased to utilize the potential of installing a septic system in the future.  Mr. Wright indicated that if Mr. Kerstan installed a well at the area that is proposed, the Wright Spot Trust would not be able to place their septic system in this area.


Atty. Facey inquired how many bedrooms were in the current structure.  Mr. Kerstan indicated that there are currently 2 bedrooms and there would be 2 bedrooms and a closet upon completion of the proposed project.


S. Markowski read Section ‘B’ and read the reply that was written by Mr. Kerstan, as well as the reply from Rick Oberkirk indicating that a Wastewater System and Potable Water Permit will be required to change the use from a seasonal structure to a year-round use.


R. Conway recommended that the Board seek the State Regulations with regard to the well.  S. Markowski indicated that reference was made to ‘1-304A 22’, which Atty. Facey indicated is an exemption.  Mr. Wright expressed concern that Pittsford does not have the regulations that go beyond Zoning to give various permits, that would follow-up on these types of changes.  S. Markowski explained that when someone sells property, a title search is required, which permits are filed and are part of the town record.  Atty. Facey confirmed that the title search is a requirement and explained that the conditions are attached to the title and are a permanent record of the town.


R. Conway clarified that the use would still be seasonal and that 7 years is not a “magical number”.  R. Conway asked for the language in a permit be specific to indicate that this is a seasonal area.  R. Conway is concerned with the septic system and others in the area had to re-do their disposal systems due to failures in the past.  The flow of storm water was discussed.


Mr. Hitchcock inquired if there is a minimum length of a title search.  Atty. Facey indicated that 40 years is the normal search time in the State statute.


S. Markowski read the next section indicating that the total enlargement should not exceed 50% of the current structure.


Atty. Facey inquired the current measurements of the structure.  Mr. Kerstan indicated that the current structure is 20’ X 30’.  Mr. Kerstan explained that the addition will be 20’ X 24’ and a porch of 10’ X 18’.  Atty. Facey inquired the boundary line from the existing building.  Mr. Kerstan indicated that there is an enclosed porch that will be taken off.  A. Loomis indicated that the application states that the porch is 15’ from the south property line and the current enclosed porch is 8’ X 18’ and will be taken off.  Atty. Facey confirmed that the structure is conforming in the rear of the property and would be a non-conforming structure, thus, would be a non-conformity.  Mr. Kerstan explained that the original application was for a variance, then applied for a non-conforming structure.  Mr. Kerstan indicated that the project could not go back due to 2 large pine trees and a septic system.  A. Loomis indicated that she had this discussion with Mr. Kerstan and consulted with the Chairman of the Zoning Board before any warnings were posted.
R. Conway indicated that the Wright Spot Trust had rebuilt a structure in the past, and were told by a former Zoning Administrator that a variance would be necessary if anything would change the existing footprint.

Atty. Facey explained that this permit may be for a variance, however was not warned as a variance.


Atty. Facey indicated that the intention would be to extend the non-conforming front and side.  Mr. Kerstan indicated that he could not go back due to the trees.  R. Conway indicated that the trees could be removed and the project could go back.


Atty. Facey inquired the width of the road.  Mr. Gagnon indicated that the road is roughly 16’.  There was discussion that it is not possible to have 2 vehicles pass in opposite directions in the area of the property.  Mr. Kerstan explained the property line and indicated that there was no recent survey work being done.


Atty. Facey indicated that evidence submitted shows dimensional conformity on the south side and the proposal is to remove an 8’ section of the structure, adding a 24’ section, resulting in a 15’ setback, which creates a variance situation, which would need to be warned in accordance.  The dimensional requirements were discussed and explained.  Mr. Kerstan indicated that he will not be exceeding more than 50% of any new non-compliance.  Atty. Facey indicated that the Regulations are interpreted that a new non-conformity can not be created.  Mr. Kerstan indicated that he has a lot on the other side of the road, with the dimensions of 50’ X 100’, and could not build on the second lot.  Mr. Gagnon indicated that Mr. Kerstan did his best to get to the place he is at and felt that any interested individuals were present at this time and to bring this back would cause more issues.  S. Markowski explained the past conversations that were held with the Zoning Administrator.  Atty. Facey referred the conversation of variance vs. non-conformity to Executive Session.  Mr. Kerstan explained the process to Atty. Facey.


R. Conway indicated that the Wright Spot Trust had re-built a structure in the past and were told that they needed a variance due to the closer encroachment.  The Wright Spot Trust built the structure on the same footprint.  R. Conway expressed an opinion that Mr. Kerstan’s proposed project is close on the north line, there are water issues, and to allow the encroachment would set a precedence and this would be going away from the characteristic of the area, which is seasonal.  R. Conway expressed an opinion that others have had to cut trees and use a holding tank and feels that rules should apply to everyone.


S. Markowski inquired how many properties were seasonal and how many were year-round occupancies.  The homes that are close to the Kerstan property are year-round homes.  R. Conway expressed opinion that the homes that are year-round may not have the proper permits in place.


Mr. Wright indicated that none of his lots will “perk” test and there can not be a septic system installed and the construction of additional systems would jeopardize the fragileness of the area.


Mr. Kerstan reviewed a map of the area roadway and explained reasoning of the sketch drawing.

Motion by C. Greeno and seconded by J. Orvis to enter into Deliberative Session at 9:17 PM.


Recessed Robert Kerstan and Susan Woodworth hearing: the deliberative session was declared over at 9:50 PM by the chair, Sam Markowski.  Jack Orvis made the following motion: that the approval of the proposed addition to applicants house would require issuance of a variance as the existing house is approximately 31 feet from the applicants south line and the proposed addition would be a proximately 15 feet from the South boundary line.  Inasmuch as there is no violation of the south sideyard setback currently, and the applicant proposes to intrude into the setback area, a variance is needed.  The application was warned as an “expansion of a dimensional nonconformity” under section 808 of the new ordinance but the proposal creates a new nonconformity not the expansion of an old one. John Shedd seconded the motion.  The motion was passed unanimously 4-0.



Respectfully Submitted

 Kelly Giard, Recording Secretary


Stanley Markowski, Chair


Richard Conway, Vice Chair


 James Morale


 Clarence Greeno


 Jack Orvis


John Shedd


John Mitchell (Alternate)