Flushing Zoning Board of Appeals
Minutes
A Regular Meeting of the Flushing Zoning Board of Appeals was called to order on Monday, December 7, 2009 at 7:30 p.m. by Chairperson Patrick O'Callaghan, followed by the Pledge of Allegiance to the Flag.
Present: Edward Borkowski
John H. Daly
Kevin J. Keane
David R. Martus
Patrick O’Callaghan
Absent: None
Others Present: Dennis J. Bow, City Manager
Nancy G. Parks, City Clerk/Treasurer
Approval of Minutes - Motion by Keane, seconded by Daly, to approve the September 21, 2009 Regular Meeting minutes of the Zoning Board of Appeals, as written.
Yea: Borkowski, Daly, Keane, Martus, O’Callaghan
Nay: None
Motion Carried.
MEETING
OPEN TO THE PUBLIC:
No public comment.
OLD
BUSINESS:
Variance – 225 Brookside Drive – The Zoning Board of Appeals requested that the city attorney address the question as to whether or not an aboveground pool would be deemed as a “structure,” as defined by the City’s Zoning Ordinance.
The city attorney believes that this aboveground swimming pool is a “structure.” In his opinion, he states that the zoning ordinance itself defines structure as “anything constructed, erected or moved on a premises, the use of which required more or less permanent location on the ground or attached to something having more or less permanent location on the ground,…” (Emphasis added.) He feels the key words in this definition are the words “anything” followed by the word “erected.” Using the general rules for interpretation, if one looks to Webster’s for a definition, a structure is something that is made up of independent parts or that is constructed. In Black’s Law Dictionary, structure is defined as any construction artificially built up or composed of parts joined together in some definite manner. If one looks at the State Construction Code, CL 125.1502A(1)(z), “structure” means that which is built or constructed, an edifice or building of any kind, or a piece of work artificially built up or composed of parts joined together in some definite manner.”
Flushing Zoning Board of Appeals
Minutes
Page Two
The exceptions noted in the statute are not applicable to your circumstances. When the ordinance uses the term “anything constructed,” and does not provide an exception to that definition for pools or aboveground pools, it would appear that the aboveground pool would be a structure. His assumption is that with the decking, etc., that this is more or less permanently located. That being said, this structure cannot occupy more than 10% of the rear yard. See Article 9, Sec. 153.901A(Y)(3).
The city manager recommended, for the board’s consideration, to refer this item to the Planning Commission and City Council for a review of the definition of a structure. According to the attorney, 225 Brookside Drive would be in violation, if you included decks and aboveground pools.
The city manager felt that there was no way the Zoning Board of Appeals could approve this variance request. However, the city could postpone correction of this zoning violation at this time, and go to the Planning Commission and ask them to review the definition of “structure.” He recommended placing this item on the January 2010 Planning Commission meeting agenda so that we don’t have to pursue this particular application.
Variance – 225 Brookside Drive – Motion by Keane, seconded by Borkowski, to deny the variance request for 225 Brookside Drive based on existing statute; it is not unique, there is no hardship imposed, and it was not created before the property was purchased.
Yea: Borkowski, Daly, Keane, Martus, O’Callaghan
Nay: None
Motion Carried.
403 W. Main Street – Motion by Daly, seconded by Keane, to remove the variance request for 403 W. Main Street from the table.
Yea: Borkowski, Daly, Keane, Martus, O’Callaghan
Nay: None
Motion Carried.
403 W. Main Street – The city manager provided the following information regarding the variance request submitted by Tracey Romprey:
With regard to the request by Ms. Tracey Romprey to maintain the greenhouse, City of Flushing employees within the Department of Public Works established two (2) property stakes, which identify the right-of-way in front of and in back of the greenhouse. It appears that the east wall of the greenhouse was constructed at least three (3’) feet inside the city’s right-of-way. This finding is consistent with the survey drawing, which is included in the packet from the September 21st meeting.
Flushing Zoning Board of Appeals
Minutes
Page Three
A letter was sent to Ms. Romprey on November 3, 2009, for which a stake survey was requested to be provided to the city, if she wished to pursue this variance. As the city’s findings indicate, the structure is partially constructed within the right-of-way, I do not believe the Zoning Board of Appeals has authority to grant this variance.
No survey was provided by the applicant.
Variance – 403 W. Main Street – Motion by Daly, seconded by Martus, to deny the variance request for 403 W. Main Street based on the information provided and the determination that a portion of the structure is located in the right-of-way.
Yea: Borkowski, Daly, Keane, Martus, O’Callaghan
Nay: None
Motion Carried.
Adjournment – Motion by Keane, seconded by O’Callaghan, to adjourn.
Yea: Borkowski, Daly, Keane, Martus, O’Callaghan
Nay: None
Motion Carried.
Adjourn: 8:00 p.m.
______________________________
Nancy G. Parks, City Clerk/Treasurer