A “Two-fer”On Murphy Lane At The ZBA

I had already written my story when Jenny Grey’s was published in the Saratogian.  I thought it would be fun to post both so the readers could compare them (For you film buffs:Rashamon).  I vote For Jenny’s as the better story.

Blogger’s Storty

A brief review of 39 Murphy Lane. 

Jean D’Agostino purchased a small barn built around 1900 on Murphy Lane.  Murphy Lane is a narrow alley lined with garages and other secondary structures running parallel to White Street on the east side of the city.  D’Agostino proposed rehabbing the structure.  In her application she specifically stated that it would be a detriment to the neighborhood to tear the existing building down and to construct a new home. 

The barn was on a tiny non-conforming lot so her project required radical variances for setbacks, parking, and the size of the footprint relative on the lot.  Her original request for variances passed the ZBA by a narrow four to three vote.   A home facing on a narrow alley affects the use of the alley and the character of the neighborhood.  Among the variances granted was to allow for onsite parking for only one vehicle rather than the two required.  As the building was to be a three bedroom home, where would a second car park?  Where would delivery and service vehicles park?  Apparently this was not a problem for the four who originally granted the variances.

Subsequently, the building inspector discovered that Ms. D’Agostino, who is a realtor, had removed the slab the barn had been built on and dug and constructed a full basement.  He found that the barn had totally been taken down and that she was constructing a new home and that the height of the home was in violation of zoning laws as she had not sought a variance for it.  The result was that he put a stop work order on the house.  For a full and detailed account see this post.  

There had been an earlier hearing on the stop work order in which the board showed appropriate impatience with Ms D’Agostino.  On Tuesday night she returned to the ZBA. 

March 21 at the ZBA

The neighbors did an excellent job laying out the issues for the board.  They had hired an attorney who was unable to attend so Brian Rodems read a letter from the attorney on behalf of the neighborhood.  The attorney’s letter began by noting that this was a clear case of “act now and beg forgiveness later.”  She then cited a case in which a ZBA in New York required that the owner tear the building down and that same ZBA won in court when the owner appealed.

The neighbors noted that many of them had not challenged the original application because the barn was quite modest in size and they were led to believe that it was simply going to be rehabbed.  They then laid out many reasons why the new home was inappropriate for the parcel.  One of the key issues they brought forward was that in excavating the new basement the applicant had built up the land on which the property stood.  Additionally, the new foundation rose above the ground.  The result is that the new first floor is now four feet higher than the original.

The key thing to understand is that because this structure is built on an alley it now overlooks the backyards of all the properties around it on either side of the alley.  The windows on the first floor will look directly into the neighbors’ backyards.  Any windows on the second floor will have an even better view.  One of the neighbors noted that he has a small pool in his yard where his young daughters swim and he will have to build a very high fence if he wants privacy.

In the subsequent discussion ZBA board members Susan Steer and James Helicke made it very clear that they opposed any further approvals for this project.  Not only had the applicant flagrantly failed to live up to the stated plan for the property, but in addition she had clearly failed to comply with the standards that are required for variances.

In a rather bizarre twist, Keith Kaplan who had opposed the original variances, offered what he called a “compromise” that “might” make approval possible.  In a meandering discussion that not only confused the audience but members of the board, he tried to craft a way to help save Ms. D’Agostino.  His idea was to try to stay in the footprint of the original barn and then send the project to the Design Review Commission to try to work out some sort of design.  He kept talking about clarifying the required external materials.  City Planner Susan Bardon cautioned that DRC would need more direction than that so he threw in “mass and scale.” 

There ensued another digression over how high the original barn had been and how high the board should allow the new structure to be.  Since the barn no longer exists determining its height became problematic.  There were a number of ideas put forward and the engineer representing Ms. D’Agostino claimed that she estimated the original to have been twenty-seven feet tall and the new proposed building would be twenty-eight and a half feet tall.  There was a confusing discussion as to where to measure the base from given the excavation.  The neighbors claimed that the new structure was eight feet taller than the original.  Keith Kaplan then arbitrarily chose twenty-eight and a half feet and the usual suspects supported him.

At one point city attorney Tony Izzo tried to help by making what I thought was the most thoughtful suggestion which was to tell the applicant to come back with the best plan they could that would most closely  resemble the original barn.  This suggestion was lost and the discussion wandered on.

I would note here that this is classic in terms of the problems with the way the ZBA operates.  No one, least of all me, argues that the board should behave in an unconstructive and hostile way towards applicants but it is deeply troubling when the board starts working out the applicant’s problems.  This ends up investing the board in approving the projects.  Tony was absolutely right in suggesting that it was the applicant’s responsibility to, in effect, go back to their original application and to come back with the best they could do to meet their obligations under it.  If what they do is inadequate, than the board should vote it down.

The key thing here is that Mr. Kaplan’s ramblings on a solution totally obscured the central question about the project in terms of its effect on the neighborhood.  The board, for instance,  never addressed the privacy issue or any of a number of other issues put forward by the neighbors  relating to the five standards for approving variances.

There is one other central issue.  I asked how significant it is that the applicant has violated the terms of their application by demolishing and building a new structure when they clearly stated that they were doing a rehab.   It was my understanding that the approval of the variances is conditional on the applicant fulfilling the promises made in their application.  I was rather stunned when Mr. Kaplan asserted that he was only concerned with the actual design plans not with the applicant’s description in her application for the variances of what she had told them she intended to do.  In effect he dismissed the case law offered by the attorney for the neighbors not to mention common sense.

Chairman Moore then polled the board on Mr. Kaplan’s motion to send the plans to DRC.  Skip Carlson and Gary Hasbrouk who had been largely silent during all of this as had Mr. Moore, simply said that if Keith wanted to send it to DRC it was alright with them.

So it now gets thrown to DRC.  How they are to assess the design of whatever Ms. D’Agostino comes up with is rather a mystery to me as it seemed to be to Susan Steer, James Helicke, and Cheryl Grey.

A very disheartening night for the neighbors.

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Jenny Grey’s Story

Board debates fate of Murphy Lane barn

The 100-year-old barn in the background is being renovated into a shadow of its former self, say the neighbors around 39 Murphy Lane. Photos provided

By Jennie Grey, The Saratogian

Posted: 03/22/16, 6:39 PM EDT |

At 39 Murphy Lane, a 100-year-old barn is being renovated and illegally raised four feet, say city staff and the neighbors.

SARATOGA SPRINGS >> Residents in a Spa City neighborhood say the developer tasked with renovating a 100-year-old barn has deviated too far from the plan to preserve the structure’s historic charm.

Owner and applicant Jean D’Agostino proposed to renovate a the barn situated on a one-third-size lot at 39 Murphy Lane, an alley that runs parallel between Lincoln Avenue and White Street on the East Side. The project was presented as a renovation of an existing barn/carriage house into a single-family residence. The zoning board granted seven area variances for the work, which began under Engineering America Co. engineer Tonya Yasenchak.

“The plan was to return this 100-year-old barn to its original glory,” said Brian Rodems of 84 White St. during public comment at the March 21 zoning board of appeals meeting. “But after being granted variances, the owner tore down the barn. The building going up bears no resemblance to the old one.”

When city Building Inspector Steve Shaw checked out the site, he found that more work had been done than had been approved. He requested a new foundation plan, but said he has not yet received one. Even without that plan, however, he could see the deviation from the originally approved design.

“The plans said the builders would keep the core of the barn as much as possible,” he said. “But the preexisting nonconforming status of the building was being increased.”

The board has had several nonconforming projects to examine recently — projects not being built according to code or to the granted variances from building law. City staff and volunteers, as well as residents, are alert to these deviations and are bringing such issues before the board.

Board member George “Skip” Carlson said, “We have a lot of applicants asking for forgiveness rather than permission. Sooner or later, this board will make someone tear something down.”

Assistant City Attorney Tony Izzo said the impact a nonconforming project made on the neighborhood was the key consideration for the zoning board.

Neighbors near Murphy Lane agreed that the developer had gone far beyond the scope of the project. Essentially, none of the old barn remained — it had been methodically deconstructed and replaced with new materials during the past few months. The entire roof of the barn had been removed, and it sat in a state of arrested development.

Yasenchak said she had come before the board to request approval on revised measurements. These included reduced wall heights and roof pitches.

A group of the neighbors has begun speaking to an attorney in preparation for a lawsuit.

The most disturbing issue for the neighbors is that the new first floor has been built four feet off the ground, leading to a much taller building than permitted.

Cynthia Behan of 70 White St. objected to the new height, which would make the former barn taller than the houses around it. Privacy would be diminished, as anyone on the top floor of the building could see down into all the yards around.

John Behan of 70 White St., her husband, said these changes were not mere modifications.

“You cannot take a historic painting and light it on fire, then say you’re restoring it,” he said. “The formerly granted variances have not been adhered to — you can dismiss them. You have to go on from here.”

Evan Williamson of 18 Clark St. said the deviations from code might seem acceptable on paper, but were not.

“It’s a bait and switch situation,” he said. “It’s an insidious encroachment by people of zeal.”

Blaine Dunn of 74 White St. said, “We want the board to make brave decisions.”

When the zoning board began to debate the issue at its most recent meeting, lines of opinion were sharply drawn. Members James Helicke and Susan Steer, and alternate Cheryl Grey were against allowing the project to proceed.

“I don’t see that we need to drag this out any further,” Helicke said.

He was prepared to vote against the project’s application right then, but the other members wanted more time to weigh the issue. Those others, particularly Vice Chair Keith Kaplan, were largely on the side of compromise: asking D’Agostino to modify some of the building’s dimensions and to use Design Review Commission (DRC) approved materials on the exterior. Most of the members agreed to ask the DRC for an advisory opinion on dimensions and materials.

A vote on sending the project to the DRC then passed 4-3. That board will meet next on April 6 at 7 p.m. in City Hall.