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November 12, 2009


The November 12, 2009 Special Meeting of the Board of Adjustment opened at 7:30pm. The clerk read the notice of compliance with the "Open public meetings act." Present were Board members: Mr. Wolfersberger, Mr. Spader, Chairman Struncius, Mr. Reilly and Mr. Kelly Alternates: Mr. Reynolds and Mr. Ardito Absent: Bill Leonard. Mike Palisi and Amanda Mercuro

Applicant is appealing the Zoning Officer’s ruling on property located at 1026/1028 Gowdy Avenue owned by William and Carolan Ammirata. Applicant is appealing the interpretation that the home occupation use at 1026/1028 Gowdy Avenue is permitted by Ordinance without a need for variance approval by Zoning Board of Adjustment.

Meeting was carried from the October 15, 2009 meeting.

Let the record reflect that
Board member Wolfersberger and Spader have listened to the audio from previous meetings and have signed a certification and are eligible to vote in this matter.

John Jackson, attorney for applicant. Christine Cofone, Licensed Professional Planner also has her AICP license. Presently has her own firm – “Confone Consulting Firm”. She has previously worked for a practice in Manhattan and Schoor DePalma. Christine Cofone stated that she has testified for hundreds of cases previously before boards.

Christine Cofone stated that there are nine (9) criteria to be met for a home occupation. She reviewed the 9 criteria and found that this home occupation complies with all nine (9.)She stated that the home occupation does not create more traffic than if it had a residential use. Someone coming at 6am is no different than someone leaving for work. She believes that the business being run is not excessive and does not violate any of the nine (9) criteria. None of the equipment installed is anything different than you would see in a gym. There are no hazardous substances. Christine Cofone stated that since the home occupation conception in 2003 there has only been one complaint from one neighbor. Over all the Planner believes that the Zoning Officer was correct with her interpretation.

Michael Wenning proceeded with his cross examination of the Planner:

Michael Wenning (MW)
Christine Cofone (CC)

MW questioned if the property would get an as of right sub-division and Ms. Cofone replied that they would need a couple of variances but stated that this is not an application for a subdivision. Mw questioned her opinion on the hours of operation. CC commented that the Zoning Code does not set forth hours of operation for home occupations.CC believes the Zoning Officer did the right thing with the way the ordinance is laid out. MW questioned CC in reference to the non-conformity of the property during a variance process. John Jackson stated that the property is 15,000 square feet and is compliant for the size required for two lots. It meets the area and density for two lots. John Jackson stated it would be a legal argument on whether this would be a sub-division by right. John Jackson stated it is a non-conforming structure; not use.

Audience questions/comments

Maria Ellwell – been going to Carolan Ammirata for four years. Maria stated that she was sitting in her car exchanging Christmas gifts with a friend and Scott Ingenito came out and stuck a camera in their face. She says it was bad behavior.

Frank Carey – 806 Briarcliff. Passes by location 5 -10 times a day; never had any problem with cars being parked on the street.

Closing statement from John Jackson

Closing statement from Michael Wenning


Mr. Ardito: I have taken a lot of notes and listened to both sides. Looking at the nine (9) requirements for home occupation I agree with the interpretation of the Zoning Officer. I do not believe the business is excessive. There has only been one objector; If there was a problem I am inclined to believe there would be more than one complaint.

Mr. Reynolds: The nine criteria are all met. The permit was an oversight and it will be taken care of in the future. We have heard tons of testimony and there are only one or two cars there at a time. If it was excessive there would be more than one neighbor complaining. I agree with the Zoning Officer’s decision.

Mr. Kelly; I don’t believe that this is an expansion of a non-conforming use. It is a residential property with two homes that has a home occupation. The permit was issued five (5) years ago and the Zoning Officer interpreted the laws correctly. I believe that Mrs. Petrillo made this decision in good faith and I do not believe that the business is excessive at all.

Mr. Reilly: I visited this site on three different occasions. Having heard about this case I assumed that these properties were across the street from each other. I was amazed when I found out that they are caddy corner and did not experience any excessive traffic. I think the wording in the ordinance is quite clear; I feel there is no change of principal use. I have to support Mrs. Petrillo’s decision.

Mr. Leonard: I also believe Mrs. Petrillo was correct; but would support a motion to restrict the hours of operation.

Mr. Spader: I also go by the different application locations; I actually spent 2 three hour periods sitting there and observing traffic. I sat there once from 7am till 10am and then another day from 11am till 2pm. It is a busy street but not from the home occupation. I also agree with the Zoning Officer.

Mr. Wolfersberger: I agree with everyone. The only issue I had was them forgetting to secure the license. I believe that was an oversight. I would recommend to town council to consider changing the ordinance to limit the hours.

Chairman Struncius: The video was the convincing factor; when it was said the excessive day was 9 cars over 12 hour period I realized this isn’t anything different from what goes on in my neighborhood. I didn’t see anything that constituted excessive use by the video and the applicants own testimony.

Motion by Mr. Reilly, second by Mr. Wolfersberger to uphold the Zoning Officers determination (As outlined in exhibit A-2) in reference to the home occupation with conditions.

In favor: Wolfersberger. Spader, Leonard, Struncius, Reilly, Kelly and Reynolds
Opposed: None

Meeting adjourned: 9:15pm

Attest: Karen L. Mills, Clerk of the Board

Published December08, 2009 | Board of Adjustment Minutes | 907

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