[Some readers had problems navigating the Saratogian and asked that I post the story]
Zoning Board chair’s home project questioned
Neighbor: ‘violation is an abuse of power, disregard of the authority of the board’
By Jennie Grey, The Saratogian
Wednesday, January 27, 2016
SARATOGA SPRINGS >> When the chair of a land-use board comes before that very board with an application of his own, the other members are left to sort out any issues and make a fair evaluation. Lately, that’s been challenging for the Saratoga Springs Zoning Board of Appeals (ZBA), since its chair, William Moore, has sought an area variance modification for the home office above his detached garage.
Some neighbors have approved, and some have objected, as seen at the board’s Jan. 25 meeting, when Moore’s application came before the members.
Moore’s house and garage are located at 75 South Franklin St. in the Urban Residential-3 District. He uses the finished space on the second floor of his garage for his business, The Appraisal Company, of which he is president. Having hired one employee, an assistant who works out of the space where Moore applied to modify his variance.
Vice Chair Keith Kaplan presided over this agenda item when Moore recused himself. Moore stepped out into the hall to let the other board members have discussions and make decisions without his presence.
ZBA member Susan Steer questioned whether having a home occupation, such as this business office, was permitted in an accessory structure like a garage. Kaplan read aloud the requirements a home business must fulfill when using space in an accessory building: only 15 percent of the structure can be used as business space; only the home’s occupants and one other person can work there; the sole employee working at that location may use the space; No more than 10 trips to the home office can be made daily by customers; onsite parking for the one employee must be provided; just one exterior wall sign is permitted; and no outdoor storage is allowed.
“So, habitable space would be permitted over the garage,” Kaplan said. “It would be a work space. Business or professional office facilities, workshops and studios are all allowed.”
The original 2013 variance’s language said no kitchen or bathroom facilities, and no overnight stays. Moore did install water and sewer lines, and build a half-bath, which drew the notice of a neighbor.
Anthony Dawson, chief executive officer of Moto Holdings, which owns property located at 77 South Franklin St., has objected to Moore’s building.
In an email to the Saratogian, Dawson wrote, “The ZBA granted conditional approval; conditions were crystal-clear in regards to the accessory building: no kitchen or bathroom — put another way, no water or sewer connection; and then no overnight stays.”
Dawson said that shortly after the final inspection was done and the certificate of occupancy was issued, Moore engaged contractors to install water lines, connect to sewer and finish the interior walls of the garage. Moore then relocated his business to that location.
“In the beginning of December 2015, I put city officials on notice,” Dawson wrote. “No action was taken; instead, I received a notice for the public meeting regarding Moore’s application.”
Moore wrote to the Saratogian also pointing out, “I got my original variance for the following: one foot on the side back requirements and a 3 percent increase in square footage in the accessory building (the garage). I also applied to have finished space over my garage, which would include a half bath, and no shower and no kitchen, and yes, no overnight stays.”
He said this language is typical in variances, as the ZBA has never wanted to give people the chance to make space in a garage or a carriage house be an additional living unit.
“There are two building permits on file: one for the house and another for the garage,” he continued. “I always had permission to finish the space above my garage as approved by the zoning board with a half bath. My certificate of occupancy for both house and garage were issued in March 2015. If the bath was not allowed, I would never have received a certificate of occupancy.”
As for putting in the lines, Moore said, “I did not have plumbing done after I moved in, as you need a street opening permit as well as a permit for the water. This would prove exceptionally difficult, considering the sewer connection is in the alley, and the water connection is on South Franklin. Sewer was connected in December 2014, and we had to open the street in February 2015 on South Franklin for water and natural gas. The city does inspections on all these items, as well as giving plumbing permits for water and sewer connections.”
After Dawson wrote to Senior Planner Susan Barden, she emailed him, “William Moore has submitted an area variance application to modify his previously approved variance that permitted finished/habitable space in the detached garage. The current application is to permit a home occupation in the approved space. The city’s zoning ordinance permits home occupations within the principal structure and not in an accessory structure. Please be aware that the condition of the prior approval states, ‘No kitchen or bath facilities, or any overnight stays will be permitted in the finished space in the accessory structure.’ The approved plan was to have a half bath with a toilet and sink.”
At the Jan. 25 meeting, Kaplan took up the issue of the bath. He said that having a half-bath was within the scope of the conversations the board had previously had about the project.
“Our mistake was in not saying ‘bathing facilities’ but just ‘bath,’” he said.
In other words, the variance did not permit a full bathroom containing a tub and shower, but a half-bath, with just toilet and sink, would be allowed for the workers in the home office. Kaplan said the application should be corrected to make this clear.
Assistant City Attorney Tony Izzo reminded the board that any application of Moore’s must be sent through the same procedure as for any other applicant.
Board member James Helicke asked planning staff if there were other instances in Saratoga Springs of such home offices in accessory buildings.
“We permitted a certified public accountant, I remember,” Barden said. “I’ll do some research to see if there are more cases.”
Dawson wrote, “Mr. Moore created this situation and grew out of space, and should go back to renting or leasing adequate, legal space offsite from which to operate his business, just as any other company would have to do. That is the remedy to this situation, not special treatment from the city officials to remedy a situation he created by disregarding conditions imposed by the board.”
During the public hearing for Moore’s application, attorney Andy Brick of Donald Zee spoke for Dawson. The lawyer said that Moore ought to be seeking a use variance for the property, not an area variance.
“Home occupation must take place in a dwelling,” Brick cited. “The board should reject this application, and Mr. Moore should resubmit it as a use variance, which would need a State Environmental Quality Review Act process.”
Other neighbors of Moore’s spoke during the hearing, mostly in favor of the home office usage.
Maureen Curtin of 224 Grand Ave. said she thought the use of the garage space was legitimate. She did object to Moore’s application, classifying the neighborhood as largely commercial.
“The neighborhood is 74 percent residential,” she said.
Frank Capone of 119 Grand Ave. said Moore had dramatically enhanced the home on Franklin Street. Jack McKeever of 120 Grand Ave. agreed.
The ZBA then discussed what would happen if Moore’s business expanded; while Steer persisted that a home occupation wasn’t allowed in an accessory structure.
Dawson wrote, “Clearly, this violation is an abuse of power and a disregard of the authority of the board that Mr. Moore chairs. If this were any other resident, the remedy would be fines from the date of violation until the disconnection; the same should hold true here. No accommodation should be made by the ZBA to remove conditions they required because the chairman disregarded them. Additionally, I feel he should be removed from the board.”
Izzo said he would review the applicable code and cases, and write a brief for the board.
The public hearing will remain open until the next ZBA meeting, Feb. 8 at 7 p.m.