Preview
INDEX NO. 2788/2024
NYSCEF DOC. NO. 3 RECEIVED NYSCEF: 05/16/2024
SUPREME COURT OF THE STATE OF NEW YORK
COUNTY OF WESTCHESTER
ween enn eee n eee. peewee nn en nnn nn nnn n en en nee n nen
In the Matter of the Appli tion of
MICHAEL ROTHMAN, Index No.: #2788/2024
Petitioner,
For a Judgement Pursuant to Article 78 of the
Civil Practice Law and Rules
- against -
ZONING BOARD OF APPEALS OF THE CITY
OF RYE and KENJI NAKANO,
Respondents.
wenn n ene nee n-n-n-n------=~)
INDEX OF DOCUMENTS, CERTIFICATION OF ADMINISTRATIVE RECORD
AND RECORD
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BATES DESCRIPTION
NUMBERS
001 (Cover sheet
002-074 (Applicant Nakano’s submission (January 25, 2024)
075-084 IM Rothman’s letter in opposition (February 5, 2024)
085 2/15/24 Board of Appe: s meeting agenda
086 - 088 2/15/24 Board of Appe: s meeting minutes
089-090 3/21/24 Board of Appeals meeting agenda
091-094 3/21/24 Board of Appeals meeting minutes
095-131 2/15/24 Board of Appeals meeting transcript
132 — 137 3/21/24 Board of Appeals meeting transcript
138-141 3/21/24 Board of Appeals Finding and Decision
142 (Certification page
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SUPREME COURT OF THE STATE OF NEW YORK
COUNTY OF WESTCHESTER
--.
In the Matter of the Application of
MICHAEL ROTHMAN, Index No.: #2788/2024
Petitioner,
For a Judgement Pursuant to Article 78 of the
Civil Practice Law and Rules
- against -
ZONING BOARD OF APPEALS OF THE CITY
OF RYE and KENJI NAKANO,
Respondents.
wane nee eee eee ee ee eee eee eens
CERTIFIED RECORD
City Clerk
City of Rye
1051 Boston Post Rd.
Rye, New York 10580
(914) 967-1025
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TY
xz | HARFENIST KRAUT & PERLSTEIN LLP
LEO K. NAPIOR
DIRECT TEL.: 914-701-0800
MAIN FAX: 914-701-0808
LNAPIOR@HKPLAW.COM
January 25, 2024
VIA E-MAIL & HAND
City of Rye Zoning Board of Appeals
1051 Boston Post Road
Rye, New York 10580
Re: 6 Laurel Street (S/B/L 146.11-1-22)
Application #23-24
Dear Chairman Weil & Members of the Board:
As you may recall, we represent Kenji Nakano (the “Applicant”) in connection with the
above referenced property (the “Subject Property”). The Applicant was granted side yard setback
variances under Application #23-24 to legalize an existing deck and staircase (the
“Determination”).
A neighbor, Michael Rothman, filed an Article 78 petition with the Supreme Court of the
State of New York, County of Westchester, seeking an to annul the Determination under Index
the
No. 1365/23. The Court issued a Decision Order & Judgment on October 12, 2023, remitting
proceedings back to the Zoning Board of Appeals for further proceedings. The Court simply found
there to be a lack of substantial evidence in the record and findings supporting the Determination
(the “Decision”). We now wish to make the record abundantly clear.
Accordingly, the Applicant submits herewith the following for your consideration in
reaching a de novo determination on the Application:
° Exhibit 1: Original 2023 Zoning Board of Appeals Application Package (#23-24)
° Exhibit 2: The Determination
e Exhibit 3: The Decision
Exhibit 4: Denial Letter, Application, Plans and Determination from the 2012
Application (#12-34)
Exhibit 5: Existing Condition Survey
Exhibit 6: Prior Condition Survey
3000 Marcus Avenue, Suite 2E1 2975 Westchester Avenue, Suite 415
Lal NY 11042 Purch NY 10577
516.355, F 516.355.9601 T9147 4-708-0808
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i Vvt
ws
Executive Summary
To refresh the Board’s recollection, the Applicant was previously granted area variances
in Application #12-34 to elevate the residence above the floodplain (the “Prior Approval”). In the
original 2023 Application to your Board (#23-24), the Applicant mistakenly stated that the
Applicant modified the plans following receipt of the Prior Approval to relocate the stairs to the
side yard at the request of the Planning Commission. As the Applicant explained at your meeting
on April 20, 2023, upon a closer review of the history of the prior proceedings the deck and stairs
were shown in their current location at the time of the Prior Approval; however, due to a
draftsman’s error the deck and stairs were not identified on the plans as requiring side yard setback
variances.
After experiencing flood damage to the residence at the Subject Property the Applicant
sought requisite approvals to elevate the existing residence above the floodplain. The southern
side of the existing residence had a side yard setback of 9.1 feet to the face of the house (see Exhibit
6). There was a door out of the kitchen on the southern side of the house that exited to a landing
with steps down to grade that encroached into the side yard setback an indeterminate distance (the
Prior Condition Survey does not provide a setback measurement to the landing or stairs).
The plans for elevating the residence that were presented to the Board under the Prior
Approval unmistakably show the new elevated deck and stairs along the southern side of the house
which were required to maintain the existing door from the kitchen to the deck and rear yard.
However, the plans mistakenly note the side yard setback of 9.1 feet to both the southern face of
the house and the newly elevated deck and stairs, rather than identifying the reduced setback for
the deck and stairs of 5.77 feet.
There was and is no alternative location for the encroachment of the deck along the side of
the residence as the deck provides safe egress from the previously existing side door from the
kitchen to the deck and rear yard. Similarly, there is no feasible alternative location for the stairs.
To place the stairs on the opposite (northern) side of the deck would require the removal of an
existing mature tree immediately adjacent to the deck. Placing the stairs in the middle of the deck
would result in a greater encroachment into the wetland buffer and would bifurcate the rear yard
essentially splitting it into two and reducing the utility and aesthetics of the rear yard. In addition,
any relocation of the stairs would require modifications to the existing irrigation system installed
throughout the yard.
Therefore, the Applicant respectfully requests the Zoning Board of Appeals reaffirm the
Determination to grant the requested variances of: i) shortest side yard setback (required 8° /
proposed 5.77’ / variance 2.23’); and ii) total of two side yard variance (required 20’ / proposed
15.17’ / variance 4.83’).
In determining whether to grant an area variance, the Zoning Board of Appeals is to
to
consider the benefit to the applicant if the variance is granted, as weighed against the detriment
a
the health, safety and welfare of the neighborhood or community by such grant. In making such
determination the Board is to consider the following five factors:
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A. Whether an undesirable change will be produced in the character of the
neighborhood or a detriment to nearby properties will be created by the granting of the area
variance.
The requested variances will not produce an undesirable change in the character of the
neighborhood or a detriment to nearby properties. The existing deck and stairs have been in place
for many years and serve only as a means of access to the kitchen door and the rear yard. The
portions of the deck and stairs that encroach into the setback are not areas where residents of the
home linger or congregate for any period of time.
B. Whether the benefit sought by the applicant can be achieved by some other feasible
method, other than an area variance.
The benefit sought by the applicant cannot reasonably be achieved by another method. The
portion of the deck along the side of the house is necessary in order to provide access to the kitchen
tree or
door. As noted above, relocating the stairs would require either the removal of a mature
would result in the splitting of the Subject Property’s rear yard into two.
C. Whether the requested area variance is substantial.
Given the totality of the circumstances the requested variances are not substantial. The
variances requested are minor and are limited solely to encroachments of a portion of the deck and
stairs which are mostly obscured from view by existing vegetation. By way of comparison, Section
of up
197-61 of the Code permits projections of bays, balconies, chimneys, flues and fire escapes
feet into
to 3.5 feet into the side yard setback. Here, the deck and stairs only encroach up to 2.23
the setback.
D. Whether the proposed area variance will have an adverse effect or impact on the
physical or environmental conditions in the neighborhood or district.
Pursuant to 6 N.Y.C.R.R §617.5(c)(17), this is a Type II exempt action under SEQR. The
ental
area variances will not have an adverse effect or impact on the physical or environm
with the
conditions in the neighborhood or district and the residence has been elevated to comply
floodplain ordinance.
E. Whether the alleged difficulty was self-created, which consideration shall be relevant
granting
to the decision of the Zoning Board of Appeals but shall not necessarily preclude the
of the area variance.
While it can be argued that almost every area variance request is a self-created difficulty,
but
the mere fact that the difficulty is self-created does not preclude the granting of the variance,
Sasso v.
instead, is one of the listed factors that should be taken in to consideration by the board.
preclude the
Osgood, 86. N.Y.2d 374, 285 (1995) (holding that a self-created hardship does not
granting of an area variance).
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In consideration of the foregoing, we respectfully request the Board re-affirm the
Determination to grant the requested variances and provide a written decision providing the
Board’s rationale in reaching the Determination.
Thank you for your attention to this matter.
Very truly yours,
HARFENIST KRAUT & PERLSTEIN, LLP
By: Leo K. Uapion
Leo K. Napior
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H KP | HARFENIST KRAUT & PERLSTEIN LLP
LEO K. NAPIOR
RECT TEL : 914-701-0800
MAIN FAX: 914-701-0808
HKPLAW COM
March 30, 2023
VIA E-MAIL & HAND
City of Rye Zoning Board of Appeals
1051 Boston Post Road
Rye, New York 10580
Re 6 Laurel Street (S/B/L 146.11-1-22)
Dear Chairman Weil & Members of the Board:
nced
We represent Kenji Nakano (the “Applicant”) in connection with the above refere
setback variances to legalize existing
property (the “Subject Property”). The Applicant is seeking
the existing elevated residence at
stairs and a portion of an existing elevated deck on the side of
the Subject Property.
ation #12-34 to elevate the
The Applicant was previously granted area variances in Applic
the Prior Approval, the
residence above the floodplain (the “Prior Approval”). Following
ssion during the wetland permit
Applicant modified the plans at the request of the P| Janning Commi
part of the Wetland
approval process under Wetland Permit #377 (the “Wetland Approval”). As
fror m the elevated deck be moved to the
Approval the Planning Commission requested the stairs
side of the deck rather than extend into the rear yard; ho’
wever, it has now been brought to the
side door encroach into the side
Applicant’s attention that the relocated stairs and access to the
yard setback. Accordingly, the Applicant is seeking setbac
k variances to maintain the stairs and
portion of the deck in the side yard setback.
Enclosed herewith are the following:
Exhibit A - Zoning Board of Appeals Application
Exhibit B - Denial Letter
Exhibit C - Tax Map with Notice Area
Exhibit D — Existing Condition Site Photos
Exhibit E — Prior Condition Site Photos
Exhibit F — ZBA Findings & Decision #12-34
Exhibit G — Wetland Permit #377
Exhibit H— Existing Condition Survey
Exhibit I — Prior Condition Survey
2075 Westcnesten NYAvEXuE, Sure 415
3000 Marcus AVENUE, SUTE ZEI 10877
Lawe Success,NY 1/042 7 -914.701 0800 F ~ 914-708-0608
7-516 355 9600F~ 516 355 960)
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Executive Summary
The Subject Property is located in th ¢ RA-3 zoning district
and is improved with an existing
cant previously received area variances to
single family residence. As noted above, the Appli
Prior Approval). Following the Prior
elevate the existing structure above the floodplain (see
Approval, the Applicant also needed to obtain a wetla
nd permit as portions of the improvements
100-foot wet land buffer from Blind Brook
associated with elevating the residence were within the
to the rear of the Subject Property.
requested the Applicant
During the Wetland Approval process the Planning Commission
of the deck instead to minimize
relocate the stairs from the deck down to the yard to the side the Applicant to
impacts within the wetland buffer. The Planning Commission also directed
remove the previously existing detached garage. The Applicant complied with the Planning
Commission’s requests, however, upon obtainin; ig a new as-built survey it has come to the
deck extendi ing along the side of the
Applicant’s attention that the stairs and a portion of the
residence to access the kitchen door are within the requir
ed side yard setbacks. Unfortunately, this
encroachment was not flagged during the Wetland
Approval process and the improvements have
plans.
been constructed in accordance with the previously approved
ck of 8 feet and a total of two
The RA-3 zoning district requires a single side yard setba
the side of the house encroach up to
side yards of 20 feet. A portion of the stairs and deck along
2.23 feet into the single side yard setback. As the side
setback on the other side of the residence
by 4.83 feet.
is only 9.4 feet, the total of two side yards is deficient
ces: i) shortest side yard setback
Accordingly, the Applicant is seeking the following varian
of two side yard variance (required 20”
(required 8’ / proposed 5.77’ / variance 2.23’); an d ii) total
/ proposed 15.17’ / variance 4,83’).
whether to grant an area vari ance, the Zoning Board
of Appeals is to
In determining
ed, as weighed against the detriment to
consider the benefit to the applicant if the variance is grant y In making such a
itgrant.
or commun by such
the health, safety and welfare of the neighborh ood
factors:
determination the Board is to consider the following five
A. Whether an undesirable change will be
produced in the character of the
will be created by the gra inting of the area
neighborhood or a detriment to nearby properties
variance.
irable change in the character of the
The requested variances will not produce an undes
ies. The existing deck and stairs are minor
neighborhood or a detriment to earby propertic
place for upwards of 9+ years. The
encroachments into the setback and have been in with the
having redesigned the plans in accordance
encroachments are a result of the Applicant
the Wetland Approval Process.
comments of the Planning Commission during
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other feasible
B. Whether the benefit sought by the applicant can be achieved by some
method, other than an area variance.
The
The benefit sought by the applicant cannot reasonably be achieved by another method.
side of the deck to minimiz e impacts
Pi ing Commission requested the stairs be relocated to the
within the wetland buffer.
C. Whether the requested area variance is substantial.
ial. The
Given the totality of the circumstances the requested variances are not substant
of the deck and
variances requested are minor and are limited solely to encroachments of a portion
stairs which are mostly obscured from view by existing vegetation.
impact on the
D. Whether the proposed area variance will have an adverse effect or
physical or environmental conditions in the neighborhood or district.
SEQR. The
Pursuant to 6 N.Y.C.R.R §617.5(c)(17), this is a Type Il exempt action under
mental
area variances will not have an adverse effect or impact on the physical or environ
elevate d to comply with the
conditions in the neighborhood or district and the re: sidence has been
g Commission to
floodplain ordinance. The relocation of the stairs was requested by the Plannin
minimize impacts in the wetland buffer related to the raising of the residence.
shall be relevant
E. Whether the alleged difficulty was self-created, which consideration
rily preclude the granting
to the decision of the Zoning Board of Appeals but shall not necessa
of the area variance.
difficulty,
While it can be argued that almost every area variance request is a self-created
g of the variance, but
the mere fact that the difficulty is self-created does not preclude the grantin
by the board. Sasso v.
instead, is one of the listed factors that should be taken in to consideration
p does not preclude the
Osgood, 86, N.Y.2d 374, 285 (1995) (holding that a self-created hardshi
granting of an area variance).
answering any questions
We look forward to discussing this project with your Board and
that you may have at your next meeting
Very truly yours,
HARFENIST KRAUT & PERLSTEIN, LLP
By Leo
K. Wapior
Leo K. Napior
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EXHIBIT A
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Application #:
Applicant/Representative:
APPLICATION
BOARD OF APPEALS
CITY OF RYE
PARTI Property Information:
Kenji Nakano
A. Owner Name:
6 Laurel Street
B. Property Address: RA
146.11-1-22 D. Zoning District:
C. Tax Assessment SBL: 146
51 Depth:
E. Lot Size: 7° sq. ft. Width: ft.
F. Allowable Sq. Ft. °° Existing Sq. Footage:
Proposed Sq. Ft.: Difference:___
7 Existing Floor Area Ratio:
G. Allowable Floor Area Ratio
Proposed Floor Area Ratio
structures on the property:
H. Description of all existing buildings and
Rye City
Single family residence that was elevated to conform with FEMA and
removed
Variance for side stairs that were originally to be
|. Description of proposed project:
Easterly Laurel Street
J. Located on the side of
100 feetina
Northerly direction from the intersection of
Laurel Street
Central Avenue and.
? Yes First Fl. Elev.
K. Is property located ina flood plain
Yes
solely to a on e-family residence?
L. Does this application pertain
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PART Il Variance Information:
n?
A. What is the general objective of this applicatio
Appeal fro m City Code?[_] Area Variance? Appeal from Board Determination? Oo
Use Variance? [] Flood Plain Mgmt Law Variance? []
Code Interpretation? []
the Board of Appeals or Planning
Have any previous applicati ions been made to
mmons or warrant issued for a
Commission concerning the property, or any su ariz the
e e=
Ifso, summ
the matter in question? itso, summ aric
court appearance concerni ing
. ion and/o r
of each decis
proceeding and the disposi tion and attach a copy
resolution.
Yes- #12-34.
Granted
FAR, Front Yard, and Bullding Height Variances-
State whether the
is (are) in question?
What Section(s) of the RyeCity Code
Board's jurisdiction is appellate, origi nal, or interpretive.
The Board's jurisdiction is appellate.
Article VIll, Sec. 197-86, Table A, Col. 9
Article VIII; Sec. 197-86, Table A, Col. 10
the Board of Appeals? If a variance is
What specific relief is requested from of feet) and the
requ irement (e.g. number
requested, state the app licable zoning
requested variance (e.g. num ber of feet)
from that requirement.
Singe side yar 'd; Required - 8 ft/ Proposed - 5.77 ft/ Variance - 2.23 ft
Two side yard Required - 20 ft / Proposed - 15.17 ft/ Variance - 4.83 ft
requested relief is not granted?
Will there bi e hardship or practical difficulty if the
State your reasons.
Yes.
the application and/or any oth er relevant
State any other reasons for granting
information.
See attached cover letter.
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PART Ill - General Information:
ing interest
Applicant: (If Applicant is not owner, attach document confirm
in property):
Kenji Nakano
Nam
6 Laurel Street
Address:
NY 10580
city: °° State: Zip:
646-872-6366 Email:_*2nivakano@msn.com
Telephone No.:
B Applicant Representative (attorney, architect), if applicable
Rex B, Gedney, AIA
Name
Crozier Gedney Architects PC
Firm:
41 Elm Place
Address:
Rye Zip:_1958
City: State:_NY
914-967-6060 Email ; "exX@oroziergedn
ey.com_carolyn@rraziergedney.com
Telephone No.:
PART IV Signatures:
By signing this application the applicant t attests that to the best of his/her knowledge all
information provided herein is accurate and truthful. The signature of the applicant and
owner also grants consent to have an y City Staff or City Board or Commission members
responsible for the review or approval | of this application(s) to enter the property of the
subject application.
Las Mapscor as attomey
3/30/23
Owner Signature Date
Lue Mapper as attorney 3/30/23
Date
Applicant Signature
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INDEX NO. 2788/2024 NYSCEF DOC. NO. 3 RECEIVED NYSCEF: 05/16/2024 SUPREME COURT OF THE STATE OF NEW YORK COUNTY OF WESTCHESTER ween enn eee n eee. peewee nn en nnn nn nnn n en en nee n nen In the Matter of the Appli tion of MICHAEL ROTHMAN, Index No.: #2788/2024 Petitioner, For a Judgement Pursuant to Article 78 of the Civil Practice Law and Rules - against - ZONING BOARD OF APPEALS OF THE CITY OF RYE and KENJI NAKANO, Respondents. wenn n ene nee n-n-n-n------=~) INDEX OF DOCUMENTS, CERTIFICATION OF ADMINISTRATIVE RECORD AND RECORD 1 of 144 INDEX NO. 2788/2024 NYSCEF DOC. NO. 3 RECEIVED NYSCEF: 05/16/2024 BATES DESCRIPTION NUMBERS 001 (Cover sheet 002-074 (Applicant Nakano’s submission (January 25, 2024) 075-084 IM Rothman’s letter in opposition (February 5, 2024) 085 2/15/24 Board of Appe: s meeting agenda 086 - 088 2/15/24 Board of Appe: s meeting minutes 089-090 3/21/24 Board of Appeals meeting agenda 091-094 3/21/24 Board of Appeals meeting minutes 095-131 2/15/24 Board of Appeals meeting transcript 132 — 137 3/21/24 Board of Appeals meeting transcript 138-141 3/21/24 Board of Appeals Finding and Decision 142 (Certification page 2 of 144 INDEX NO. 2788/2024 NYSCEF DOC. NO. 3 RECEIVED NYSCEF: 05/16/2024 SUPREME COURT OF THE STATE OF NEW YORK COUNTY OF WESTCHESTER --. In the Matter of the Application of MICHAEL ROTHMAN, Index No.: #2788/2024 Petitioner, For a Judgement Pursuant to Article 78 of the Civil Practice Law and Rules - against - ZONING BOARD OF APPEALS OF THE CITY OF RYE and KENJI NAKANO, Respondents. wane nee eee eee ee ee eee eee eens CERTIFIED RECORD City Clerk City of Rye 1051 Boston Post Rd. Rye, New York 10580 (914) 967-1025 CORO01 3 of 144 (FILED: WESTCHESTER COUNTY CLERK 0571672024 05:42 PM INDEX NO. 2788/2024 NYSCEF DOC. NO. 3 RECEIVED NYSCEF: 05/16/2024 TY xz | HARFENIST KRAUT & PERLSTEIN LLP LEO K. NAPIOR DIRECT TEL.: 914-701-0800 MAIN FAX: 914-701-0808 LNAPIOR@HKPLAW.COM January 25, 2024 VIA E-MAIL & HAND City of Rye Zoning Board of Appeals 1051 Boston Post Road Rye, New York 10580 Re: 6 Laurel Street (S/B/L 146.11-1-22) Application #23-24 Dear Chairman Weil & Members of the Board: As you may recall, we represent Kenji Nakano (the “Applicant”) in connection with the above referenced property (the “Subject Property”). The Applicant was granted side yard setback variances under Application #23-24 to legalize an existing deck and staircase (the “Determination”). A neighbor, Michael Rothman, filed an Article 78 petition with the Supreme Court of the State of New York, County of Westchester, seeking an to annul the Determination under Index the No. 1365/23. The Court issued a Decision Order & Judgment on October 12, 2023, remitting proceedings back to the Zoning Board of Appeals for further proceedings. The Court simply found there to be a lack of substantial evidence in the record and findings supporting the Determination (the “Decision”). We now wish to make the record abundantly clear. Accordingly, the Applicant submits herewith the following for your consideration in reaching a de novo determination on the Application: ° Exhibit 1: Original 2023 Zoning Board of Appeals Application Package (#23-24) ° Exhibit 2: The Determination e Exhibit 3: The Decision Exhibit 4: Denial Letter, Application, Plans and Determination from the 2012 Application (#12-34) Exhibit 5: Existing Condition Survey Exhibit 6: Prior Condition Survey 3000 Marcus Avenue, Suite 2E1 2975 Westchester Avenue, Suite 415 Lal NY 11042 Purch NY 10577 516.355, F 516.355.9601 T9147 4-708-0808 CORO02 4 of 144 INDEX NO. 2788/2024 NYSCEF DOC. NO. 3 RECEIVED NYSCEF: 05/16/2024 i Vvt ws Executive Summary To refresh the Board’s recollection, the Applicant was previously granted area variances in Application #12-34 to elevate the residence above the floodplain (the “Prior Approval”). In the original 2023 Application to your Board (#23-24), the Applicant mistakenly stated that the Applicant modified the plans following receipt of the Prior Approval to relocate the stairs to the side yard at the request of the Planning Commission. As the Applicant explained at your meeting on April 20, 2023, upon a closer review of the history of the prior proceedings the deck and stairs were shown in their current location at the time of the Prior Approval; however, due to a draftsman’s error the deck and stairs were not identified on the plans as requiring side yard setback variances. After experiencing flood damage to the residence at the Subject Property the Applicant sought requisite approvals to elevate the existing residence above the floodplain. The southern side of the existing residence had a side yard setback of 9.1 feet to the face of the house (see Exhibit 6). There was a door out of the kitchen on the southern side of the house that exited to a landing with steps down to grade that encroached into the side yard setback an indeterminate distance (the Prior Condition Survey does not provide a setback measurement to the landing or stairs). The plans for elevating the residence that were presented to the Board under the Prior Approval unmistakably show the new elevated deck and stairs along the southern side of the house which were required to maintain the existing door from the kitchen to the deck and rear yard. However, the plans mistakenly note the side yard setback of 9.1 feet to both the southern face of the house and the newly elevated deck and stairs, rather than identifying the reduced setback for the deck and stairs of 5.77 feet. There was and is no alternative location for the encroachment of the deck along the side of the residence as the deck provides safe egress from the previously existing side door from the kitchen to the deck and rear yard. Similarly, there is no feasible alternative location for the stairs. To place the stairs on the opposite (northern) side of the deck would require the removal of an existing mature tree immediately adjacent to the deck. Placing the stairs in the middle of the deck would result in a greater encroachment into the wetland buffer and would bifurcate the rear yard essentially splitting it into two and reducing the utility and aesthetics of the rear yard. In addition, any relocation of the stairs would require modifications to the existing irrigation system installed throughout the yard. Therefore, the Applicant respectfully requests the Zoning Board of Appeals reaffirm the Determination to grant the requested variances of: i) shortest side yard setback (required 8° / proposed 5.77’ / variance 2.23’); and ii) total of two side yard variance (required 20’ / proposed 15.17’ / variance 4.83’). In determining whether to grant an area variance, the Zoning Board of Appeals is to to consider the benefit to the applicant if the variance is granted, as weighed against the detriment a the health, safety and welfare of the neighborhood or community by such grant. In making such determination the Board is to consider the following five factors: CORO03 5 of 144 INDEX NO. 2788/2024 NYSCEF DOC. NO. 3 RECEIVED NYSCEF: 05/16/2024 HKP A. Whether an undesirable change will be produced in the character of the neighborhood or a detriment to nearby properties will be created by the granting of the area variance. The requested variances will not produce an undesirable change in the character of the neighborhood or a detriment to nearby properties. The existing deck and stairs have been in place for many years and serve only as a means of access to the kitchen door and the rear yard. The portions of the deck and stairs that encroach into the setback are not areas where residents of the home linger or congregate for any period of time. B. Whether the benefit sought by the applicant can be achieved by some other feasible method, other than an area variance. The benefit sought by the applicant cannot reasonably be achieved by another method. The portion of the deck along the side of the house is necessary in order to provide access to the kitchen tree or door. As noted above, relocating the stairs would require either the removal of a mature would result in the splitting of the Subject Property’s rear yard into two. C. Whether the requested area variance is substantial. Given the totality of the circumstances the requested variances are not substantial. The variances requested are minor and are limited solely to encroachments of a portion of the deck and stairs which are mostly obscured from view by existing vegetation. By way of comparison, Section of up 197-61 of the Code permits projections of bays, balconies, chimneys, flues and fire escapes feet into to 3.5 feet into the side yard setback. Here, the deck and stairs only encroach up to 2.23 the setback. D. Whether the proposed area variance will have an adverse effect or impact on the physical or environmental conditions in the neighborhood or district. Pursuant to 6 N.Y.C.R.R §617.5(c)(17), this is a Type II exempt action under SEQR. The ental area variances will not have an adverse effect or impact on the physical or environm with the conditions in the neighborhood or district and the residence has been elevated to comply floodplain ordinance. E. Whether the alleged difficulty was self-created, which consideration shall be relevant granting to the decision of the Zoning Board of Appeals but shall not necessarily preclude the of the area variance. While it can be argued that almost every area variance request is a self-created difficulty, but the mere fact that the difficulty is self-created does not preclude the granting of the variance, Sasso v. instead, is one of the listed factors that should be taken in to consideration by the board. preclude the Osgood, 86. N.Y.2d 374, 285 (1995) (holding that a self-created hardship does not granting of an area variance). CORO04 6 of 144 INDEX NO. 2788/2024 NYSCEF DOC. NO. 3 RECEIVED NYSCEF: 05/16/2024 In consideration of the foregoing, we respectfully request the Board re-affirm the Determination to grant the requested variances and provide a written decision providing the Board’s rationale in reaching the Determination. Thank you for your attention to this matter. Very truly yours, HARFENIST KRAUT & PERLSTEIN, LLP By: Leo K. Uapion Leo K. Napior CORO05 7 of 144 FILED: WESTCHESTER COUNTY CLERK 05/16/2024 05:42 PM INDEX NO. 2788/2024 NYSCEF DOC. NO. 3 RECEIVED NYSCEF: 05/16/2024 CORO06 8 of 144 (FILED: WESTCHESTER COUNTY CLERK 0571672024 05:42 PM INDEX NO. 2788/2024 NYSCEF DOC. NO. 3 RECEIVED NYSCEF: 05/16/2024 H KP | HARFENIST KRAUT & PERLSTEIN LLP LEO K. NAPIOR RECT TEL : 914-701-0800 MAIN FAX: 914-701-0808 HKPLAW COM March 30, 2023 VIA E-MAIL & HAND City of Rye Zoning Board of Appeals 1051 Boston Post Road Rye, New York 10580 Re 6 Laurel Street (S/B/L 146.11-1-22) Dear Chairman Weil & Members of the Board: nced We represent Kenji Nakano (the “Applicant”) in connection with the above refere setback variances to legalize existing property (the “Subject Property”). The Applicant is seeking the existing elevated residence at stairs and a portion of an existing elevated deck on the side of the Subject Property. ation #12-34 to elevate the The Applicant was previously granted area variances in Applic the Prior Approval, the residence above the floodplain (the “Prior Approval”). Following ssion during the wetland permit Applicant modified the plans at the request of the P| Janning Commi part of the Wetland approval process under Wetland Permit #377 (the “Wetland Approval”). As fror m the elevated deck be moved to the Approval the Planning Commission requested the stairs side of the deck rather than extend into the rear yard; ho’ wever, it has now been brought to the side door encroach into the side Applicant’s attention that the relocated stairs and access to the yard setback. Accordingly, the Applicant is seeking setbac k variances to maintain the stairs and portion of the deck in the side yard setback. Enclosed herewith are the following: Exhibit A - Zoning Board of Appeals Application Exhibit B - Denial Letter Exhibit C - Tax Map with Notice Area Exhibit D — Existing Condition Site Photos Exhibit E — Prior Condition Site Photos Exhibit F — ZBA Findings & Decision #12-34 Exhibit G — Wetland Permit #377 Exhibit H— Existing Condition Survey Exhibit I — Prior Condition Survey 2075 Westcnesten NYAvEXuE, Sure 415 3000 Marcus AVENUE, SUTE ZEI 10877 Lawe Success,NY 1/042 7 -914.701 0800 F ~ 914-708-0608 7-516 355 9600F~ 516 355 960) CORO07 9 of 144 (FILED: WESTCHESTER COUNTY CLERK 0571672024 05:42 PM INDEX NO. 2788/2024 NYSCEF DOC. NO. 3 RECEIVED NYSCEF: 05/16/2024 HKP Executive Summary The Subject Property is located in th ¢ RA-3 zoning district and is improved with an existing cant previously received area variances to single family residence. As noted above, the Appli Prior Approval). Following the Prior elevate the existing structure above the floodplain (see Approval, the Applicant also needed to obtain a wetla nd permit as portions of the improvements 100-foot wet land buffer from Blind Brook associated with elevating the residence were within the to the rear of the Subject Property. requested the Applicant During the Wetland Approval process the Planning Commission of the deck instead to minimize relocate the stairs from the deck down to the yard to the side the Applicant to impacts within the wetland buffer. The Planning Commission also directed remove the previously existing detached garage. The Applicant complied with the Planning Commission’s requests, however, upon obtainin; ig a new as-built survey it has come to the deck extendi ing along the side of the Applicant’s attention that the stairs and a portion of the residence to access the kitchen door are within the requir ed side yard setbacks. Unfortunately, this encroachment was not flagged during the Wetland Approval process and the improvements have plans. been constructed in accordance with the previously approved ck of 8 feet and a total of two The RA-3 zoning district requires a single side yard setba the side of the house encroach up to side yards of 20 feet. A portion of the stairs and deck along 2.23 feet into the single side yard setback. As the side setback on the other side of the residence by 4.83 feet. is only 9.4 feet, the total of two side yards is deficient ces: i) shortest side yard setback Accordingly, the Applicant is seeking the following varian of two side yard variance (required 20” (required 8’ / proposed 5.77’ / variance 2.23’); an d ii) total / proposed 15.17’ / variance 4,83’). whether to grant an area vari ance, the Zoning Board of Appeals is to In determining ed, as weighed against the detriment to consider the benefit to the applicant if the variance is grant y In making such a itgrant. or commun by such the health, safety and welfare of the neighborh ood factors: determination the Board is to consider the following five A. Whether an undesirable change will be produced in the character of the will be created by the gra inting of the area neighborhood or a detriment to nearby properties variance. irable change in the character of the The requested variances will not produce an undes ies. The existing deck and stairs are minor neighborhood or a detriment to earby propertic place for upwards of 9+ years. The encroachments into the setback and have been in with the having redesigned the plans in accordance encroachments are a result of the Applicant the Wetland Approval Process. comments of the Planning Commission during CORO08 10 of 144 (FILED: WESTCHESTER COUNTY CLERK 0571672024 05:42 PM INDEX NO. 2788/2024 NYSCEF DOC. NO. 3 RECEIVED NYSCEF: 05/16/2024 HKP other feasible B. Whether the benefit sought by the applicant can be achieved by some method, other than an area variance. The The benefit sought by the applicant cannot reasonably be achieved by another method. side of the deck to minimiz e impacts Pi ing Commission requested the stairs be relocated to the within the wetland buffer. C. Whether the requested area variance is substantial. ial. The Given the totality of the circumstances the requested variances are not substant of the deck and variances requested are minor and are limited solely to encroachments of a portion stairs which are mostly obscured from view by existing vegetation. impact on the D. Whether the proposed area variance will have an adverse effect or physical or environmental conditions in the neighborhood or district. SEQR. The Pursuant to 6 N.Y.C.R.R §617.5(c)(17), this is a Type Il exempt action under mental area variances will not have an adverse effect or impact on the physical or environ elevate d to comply with the conditions in the neighborhood or district and the re: sidence has been g Commission to floodplain ordinance. The relocation of the stairs was requested by the Plannin minimize impacts in the wetland buffer related to the raising of the residence. shall be relevant E. Whether the alleged difficulty was self-created, which consideration rily preclude the granting to the decision of the Zoning Board of Appeals but shall not necessa of the area variance. difficulty, While it can be argued that almost every area variance request is a self-created g of the variance, but the mere fact that the difficulty is self-created does not preclude the grantin by the board. Sasso v. instead, is one of the listed factors that should be taken in to consideration p does not preclude the Osgood, 86, N.Y.2d 374, 285 (1995) (holding that a self-created hardshi granting of an area variance). answering any questions We look forward to discussing this project with your Board and that you may have at your next meeting Very truly yours, HARFENIST KRAUT & PERLSTEIN, LLP By Leo K. Wapior Leo K. Napior CORO09 11 of 144 =: INDEX NO. 2788/2024 NYSCEF DOC. NO. 3 RECEIVED NYSCEF: 05/16/2024 EXHIBIT A CORO10 12 of 144 INDEX NO. 2788/2024 NYSCEF DOC. NO. 3 RECEIVED NYSCEF: 05/16/2024 Application #: Applicant/Representative: APPLICATION BOARD OF APPEALS CITY OF RYE PARTI Property Information: Kenji Nakano A. Owner Name: 6 Laurel Street B. Property Address: RA 146.11-1-22 D. Zoning District: C. Tax Assessment SBL: 146 51 Depth: E. Lot Size: 7° sq. ft. Width: ft. F. Allowable Sq. Ft. °° Existing Sq. Footage: Proposed Sq. Ft.: Difference:___ 7 Existing Floor Area Ratio: G. Allowable Floor Area Ratio Proposed Floor Area Ratio structures on the property: H. Description of all existing buildings and Rye City Single family residence that was elevated to conform with FEMA and removed Variance for side stairs that were originally to be |. Description of proposed project: Easterly Laurel Street J. Located on the side of 100 feetina Northerly direction from the intersection of Laurel Street Central Avenue and. ? Yes First Fl. Elev. K. Is property located ina flood plain Yes solely to a on e-family residence? L. Does this application pertain CORO11 13 of 144 INDEX NO. 2788/2024 NYSCEF DOC. NO. 3 RECEIVED NYSCEF: 05/16/2024 PART Il Variance Information: n? A. What is the general objective of this applicatio Appeal fro m City Code?[_] Area Variance? Appeal from Board Determination? Oo Use Variance? [] Flood Plain Mgmt Law Variance? [] Code Interpretation? [] the Board of Appeals or Planning Have any previous applicati ions been made to mmons or warrant issued for a Commission concerning the property, or any su ariz the e e= Ifso, summ the matter in question? itso, summ aric court appearance concerni ing . ion and/o r of each decis proceeding and the disposi tion and attach a copy resolution. Yes- #12-34. Granted FAR, Front Yard, and Bullding Height Variances- State whether the is (are) in question? What Section(s) of the RyeCity Code Board's jurisdiction is appellate, origi nal, or interpretive. The Board's jurisdiction is appellate. Article VIll, Sec. 197-86, Table A, Col. 9 Article VIII; Sec. 197-86, Table A, Col. 10 the Board of Appeals? If a variance is What specific relief is requested from of feet) and the requ irement (e.g. number requested, state the app licable zoning requested variance (e.g. num ber of feet) from that requirement. Singe side yar 'd; Required - 8 ft/ Proposed - 5.77 ft/ Variance - 2.23 ft Two side yard Required - 20 ft / Proposed - 15.17 ft/ Variance - 4.83 ft requested relief is not granted? Will there bi e hardship or practical difficulty if the State your reasons. Yes. the application and/or any oth er relevant State any other reasons for granting information. See attached cover letter. CORO12 14 of 144 INDEX NO. 2788/2024 NYSCEF DOC. NO. 3 RECEIVED NYSCEF: 05/16/2024 PART Ill - General Information: ing interest Applicant: (If Applicant is not owner, attach document confirm in property): Kenji Nakano Nam 6 Laurel Street Address: NY 10580 city: °° State: Zip: 646-872-6366 Email:_*2nivakano@msn.com Telephone No.: B Applicant Representative (attorney, architect), if applicable Rex B, Gedney, AIA Name Crozier Gedney Architects PC Firm: 41 Elm Place Address: Rye Zip:_1958 City: State:_NY 914-967-6060 Email ; "exX@oroziergedn ey.com_carolyn@rraziergedney.com Telephone No.: PART IV Signatures: By signing this application the applicant t attests that to the best of his/her knowledge all information provided herein is accurate and truthful. The signature of the applicant and owner also grants consent to have an y City Staff or City Board or Commission members responsible for the review or approval | of this application(s) to enter the property of the subject application. Las Mapscor as attomey 3/30/23 Owner Signature Date Lue Mapper as attorney 3/30/23 Date Applicant Signature COR013 15 of 144 INDEX NO. 2788/2024 NYSCEF DOC. NO. 3 RECEIVED NYSCEF: 05/16/2024 22 & Bu oe & Ss acs a= as ge. ooh as 24 5 & 3 BS Saa 3 & 3 2 a0 fa ed & & 2 & = 2 vf nN) 2 ao 2p a = eff — Ba a8 & aq 2 2 & Qo = 4 a RR & 3 £ a8 2