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1995-07-27 SP ~lGINAL QUEENSBURY ZONING BOARD OF APPEALS SPECIAL MEETING JULY 27, 1995 INDEX Interpretation No. 4-95 Marice Pappo, PH.D Clw istophe)" Hay 1. Use Variance No. 34-1995 Vernan Canape Michael. Canape 14. THESE ARE NOT OFFICIALLY ADOPTED MINUTES AND ARE SUBJECT TO BOARD AND STAFF REVISIONS. REVISIONS WILL APPEAR ON THE FOLLOWING MONTHS MINUTES (IF ANY) AND WILL STATE SUCH APPROVAL OF SAID MINUTES. "'--' ,....../ QUEENSBURY ZONING SPECIAL MEETING JULY 27, 1995 7:00 P.M. BOARD OF APPEALS MEMBERS PRESENT FRED CARVIN, CHAIRMAN CHRIS THOMAS, SECRETARY WILLIAM GREEN ROBERT KARPELES DAVID l'1ENTER THOMAS FORD EXECUTIVE DIRECTOR-JAMES MARTIN PLANNER-SUSAN CIPPERLY STENOGRAPHER-MARIA GAGLIARDI INTERPRETATION NO. 4-95 MARICE PAPPO, PH.D. CHRISTOPHER HOY 55 WILLOW ROAD APPEAL BY MARICE PAPPO AND CHRISTOPHER HOY FROM A DECISION OF THE ZONING ADMINISTRATOR STATING THAT, BASED ON HIS INTERPRETATION OF SECTION 179-7, PSYCHOLOGICAL COUNSELING WOULD BE CONSIDERED A PROFESSIONAL OCCUPATION, NOT A HOME OCCUPATION, THEREFORE WOULD NOT BE AN ALLOWED USE IN A SINGLE FAMILY RESIDENTIAL ZONE. ACCORDINGLY, AN INTERPRETATION BY THE ZONING BOARD OF APPEALS IS REQUESTED. PROPERTY IS LOCATED AT 55 WILLOW ROAD, TAX MAP NO. 90-8-23 IN A SFR-IA ZONE. JON LAP PER , REPRESENTING APPLICANT, PRESENT MR. THOMAS-A letter dated June 2, 1995, to Mr. Fred Carvin, Chairman, Zoning Board of Appeals, regarding Marice Pappo and Christopher Hay, 55 Willow Road, Queensbury "Dear Mr. Carvin: This letter is intended as an appeal pursuant to Section 179-98 of the Queensbury Code of the Interpretation of the definition of 'Home Occupation' (contained in Section 179-7 of the Code) made by James Martin and summarized in his April 6, 1995 letter to my clients, a copy of which I have attached hereto. Essentially, we are asking the ZBA to determine whether a psychologist may be considered a home occupation. It is our position that Dr. Pappo's use of her 55 Willow Road home for aþpointments with her patients is in compliance with all of the requirements of a 'Home Occupation' under the Code. Dr. Pappa also maintains an office at Glens Falls Hospital and schedules patients both at her hospital office and her home. Psychological counseling is a 'service activity' which is 'carried on by a member of the family residing on the premises'. These services are not offered to the general public but rather on a pre-arranged basis with patients whom Dr. Pappa has agreed to counsel. There are no signs or any display that indicates from the exterior of the building that it is being utilized for any purpose other than that of a dwelling. No person is employed who is other than a member of the family residing on the premises. To the extent that Jim Martin's letter seems to indicate that a service activity which is a professional activity is not permitted under the definition of 'Home Occupation' I do not believe that such interpretation is warranted under the Code. Please place this matter on the ZBA agenda in July. Very truly yours, Jonathan C. Lapper" A letter dated April 6, 1995, addressed to Christopher Hay and Marice Pappo "Dear Mr. Hoy and Ms. Pappo: This letter is in reference to David Hatin's discussion with Jon Lapper on March 28, 1995 concerning the existence of a professional (psychologist) office on your property at 55 Willow Road. The nature of the professional use in existence does not comply with the home occupations definitions as listed in Section 179-7 of the Town Zoning Code (see copy enclosed). The use involves the regular scheduling of clients to this location for the provision of a professional service (see copy of definitions for professional - 1 - occupation and office enclosed). Therefore, the use in existence is classified as a professional occupation being provided from an office located in a single-family residential zone. The current situation is nonconforming and not allowed in this single-family zoning district. Should you have any further questions, please feel free to call me at 745-4440. Sincerely, James M. Martin, AICP Executive Director" MR. CARVIN-Okay. Is there anything that you'd care to add? MR. LAPPER-Just a few comments. I think that Jim's not wrong to be confused about the definitions, that is that this, among the many definitions in the Code, the Home Occupation definition is not as clear as it could be, by including some things, saying that it's, what isn't included and then giving examples for what is, but it's not a fully inclusive definition. I do disagree with Jim's interpretation that because a professional occupation is other where defined in the Ordinance, that that precludes it from being in this definition. I think that, but for that interpretation, that Dr. Pappa's use would certainly be included under this definition. As I pointed out in the letter, that it is service activity, and if any of you have had a chance to go by the house, it's an addition in the back that is absolutely in character with the neighborhood. It looks just like the house itself, not open to the general public. She doesn't take walk- ins. It's only by referral, one person at a time. So there'd be one other car, and some of the neighbors volunteered to come tonight and speak to the Board and say that they have no problem with that use and that it doesn't change the character of the neighborhood. So we feel that we're in compliance with all of the specifics of the definition, and that it's really a technical issue that Jim has raised, that if Professional Occupation is listed elsewhere then, by definition, it can't be listed in Home Occupation, and I would just like to point out a couple of things which I think are inconsistent with that interpretation. I think, first of all just Professional Occupation is here because in the commercial zone it's distinguished where you can have a professional occupation in the Town versus the various Highway Commercial, Plaza Commercial and in some of the districts should have it, so it's important that it be defined in the Code to distinguish in a commercial zone, where you can have it, and that's the reason why it's defined here. In terms of the definition itself and in terms of Jim's point, I just want to point out that while the definition of Home Occupation says that you can have small scale crafters, such as knitting, sewing, woodworking, I think those would all fall within the definition of light manufacturing, which is also a defined term elsewhere, but what is allowed here, and by the same token, Bed and Breakfast is a defined term elsewhere in the Code, yet this provision says that the keeping of not more than two roomers or borders shall be considered a permitted Home Occupation, which would also be within the definition of Bed and Breakfast, and the same is true that day care is also provided elsewhere, and I think that that's a typical use within the Town of Home Occupation to have other people's kids over in a day care business. I don't think that it was intended or fair that you can have service activities, but if you have a professional license, that that doesn't count, that you can, knitting, sewing, woodworking, all which can be more intensive uses than just having somebody over into your livingroom for counseling, one on one. I think that's less intensive. So it would make sense that you can have one other person doing crafting and manufacturing that you bring off premises and sell, versus having somebody come over for counseling, and I don't think that that's intended, and I assume that there are other professionals in Town that do Home Occupation, but we haven't taken the time to look for that, but I assume that people are quite aware of that, and tutor is another thing which would also be professional, tutoring kids, and that certainly does happen, even in the area. Dr. Pappo's here to answer questions about the character of her use or anything else - 2 - that the Board wants to ask. DR. PAPPO-I just want to make a couple of comments. I have an office at the new Pavilion in the Hospital, where I see patients. I am also affiliated with Dr. Serlin and will be seeing patients in his office. There a)"e times where, particularly in an emergency or other times where it is better for myself, but often times for the patients, to see them in a more private setting. I don't use any equipment. I don't have any employees. I have a person come in and you go into the library and talk, is the extent of what I do. Hopefully, it's more effective than just talking, but still it's what I do. I don't think, in any way it takes away from the neighborhood, and as I said, I have a major office in the Hospital and I also work in another doctor's office. So that's what I do. MR. CARVIN-Okay. Any questions, gentlemen? Okay. Mr. Lapper, in your letter, you indicate, "these services are not offered to the general public, but rather on a pre-arranged basis with patients whom Dr. Pappa has agreed to counsel". I want to kind of get clarified. Would this be, or could it be used as a, on an ongoing basis, for regularly scheduled patients, or are you indicating that this would only be an emergency situation? MR. LAPPER-No. It's more than just emergency, but I guess what Id.:£. talked about, general public, it's not that someone will look in the yellow pages and see that there is a psychologist at that address and drive up, like you might go to a grocery store, open to the general public, that there's a phone number. Someone would call her at her hospital office. The secretary at the hospital would call her, if she's home, and give her the number. She would call the person back. She doesn't take patients that just call on a cold call and gets referrals from medical doctors in Town. So I guess I interpret that to mean not open to the general public, in that it has to be referred by a physician or for somebody to be, even if she did take a call from somebody, it would be somebody calling up, making an appointment. It's not just people driving over to see what's going on. DR. PAPPO-If you look in the phone book, I'm only listed in the hospital. That's the only office. That is the main office, 102 Park. However, sometimes I schedule a patient at 55 Willow, and some patients do come regularly to 55 Willow, and some come to 102 Park. Was that your question? MR. CARVIN-Yes. I guess my question is that this conceived, in certain situations, as being on a regular could be basis. make it MR. LAPPER-Absolutely, but do you think that, does that general public, if it's private clients? DR. PAPPO-No one comes, or calls, no one comes to the door without an appointment, nor do I take anyone who calls without being referred from a doctor's office or an appropriate referral sou.rce. MR. CARVIN-Okay. How would you interpret stock and trade? What would your stock and trade be? MR. LAPPER-Counselor. MR. CARVIN-Counseling. DR. PAPPO-It's a service, like that says, a service. service activity. It's a MR. LAPPER-It deals with service activity also. MR. CARVIN-Okay, but in a proverbial, if I guess I'm using the term "stock and trade" somebody came up and asked you what your - 3 - stock and trade would be, it would be a counselor. Okay. In other words, according to the Home Occupation definition, it says that there is no stock and trade sold, and I'm assuming you are rendering your services for a fee, upon the premises on a regular basis. MR. LAPPER-I guess it's not like it's 9 to 5 on a regular basis. MR. CARVIN-Okay, but I guess what I'm saying is that it's pretty clear that your stock and trade really doesn't necessarily fall under the Home Occupation, if it's on a regular basis. MR. LAPPER-But if you bring somebody to your house to do woodworking, small scale crafts, knitting, I mean, wouldn't that be more of stock and trade on a more regular basis? MR. CARVIN-Well, I think if we take and add this in conjunction with the definitions of what your occupation is, in other words, a Professional Occupation, it says, one who is engaged in professional services, including but not limited to all members of the field of medicine, a lawyer, architect, engineer, surveyor, licensed beautician or barber, real estate broker, or accountant, and then if you take a look at the definition, obviously, of Professional Office, an office used to conduct a professional occupation, and I guess I don't, I have to agree with Mr. Martin that I have a hard time saying what you do is a Home Occupation, because your very profession is considered a profession, and as a professional occupation, and our definition of professional occupations is that they're conducted out of professional offices. MR. FORD-And did you not, in your original presentation, indicate that there is a designated area, at 55 Willow, for the purpose of providing this counseling? MR. LAPPER-Well, they built a library. DR. PAPPO-I use my library. MR. LAPPER-As an addition in the back, and that's where they do it. I was there. There's just a couch and a couple of chairs, and a lot of books. It looks like a library. It's certainly in character with the architecture of the house. MR. CARVIN-I think, to expand, I mean, certainly, if somebody calls up on an emergency basis, if you have a patient who is in dire need, I mean, and it comes over on an emergency basis, I mean, that's no different than having a neighbor drop in to discuss situations, but I think when you start "having your stock and trade" on a regular basis, and this seems, and again, I'm under the assumption that this is going to be more the case, then I think you lose that Home Occupation cover. MR. LAPPER-Is it a question of degree? MR. CARVIN-No. I think it's a question of, we've got a psychologist or a counselor, which by any normal definition is a profession and that occupation is conducted out of a professional office, and certainly there's nothing in here to preclude you applying for a variance, but I have a hard time with the Home Occupation for this particular profession. DR. PAPPO-Since I have another office, and if all the other payment went to that office, so I wasn't paid, because you said, I think you said something about, I wasn't doing it for free or something, being paid for stock and trade, but if no payment went to that office, does that change it? MR. CARVIN-Well, no. I think it's the regular, in other words, it is an accepted place where you will be conducting business, - 4 - whether the payment. I mean, you know, Niagara Mohawk drops electricity at my house, but I send the money some place else. They're rendering a service. So, I think that you're taking an awful broad interpretation of Home Occupation. It's a much broader interpretation than what l, as a member of this Board am comfortable in agreeing with, in this particular situation. MR. LAPPER-Is there something that you could give us direction, in terms of where you might draw the line? Because I think that, you'll all agree, it's not spelled out here. MR. CARVIN-Well, I the definitions. question. think the line, I think, is pretty clear, in I really do. I guess I don't understand your MR. LAPPER-Okay. I guess, since she has an office in the Hospital, but she also uses her home to meet with people, and you're saying that it's the regularness, is the word that you highlight in the definition, on a regular basis, and I guess the question is where you draw the lines between sporadic, perhaps, and regular, I mean, at the very least she would want to meet with some patients who might have a problem with an institutional setting, depending upon the nature of their problem. MR. CARVIN-Yes. Well, I guess what you're saying is, is that an enforcement issue, and I suspect that it might be. I mean, am I going to go out there and monitor how many folks are going through and asking them to punch a time card, you know, are you here on a personal visit or what not, but why are you bringing it up if there isn't a problem here? I mean, what is the intent? MR. LAPPER-Well, the facts are certainly clear and on the table, and we're, at the very least, looking for some direction as to, I mean, if you're saying that, I don't think I heard that, under no circumstances can she meet with anyone at her house. MR. CARVIN-Well, I think the danger, here, lies if a nèighbor or someone should, obviously, file a grievance, if I can use that term, questioning the use of the residence. In which case, it would be an enforcement action, I would assume, by the Town. I mean, you're asking for an interpretation. I guess you're asking for okay, you know, is it okay for us to do this under Home Occupation, and I'm saying, that is not the case. Can I prevent somebody from showing up on an emergency basis, that's ludicrous for me to sit here and say tha.t we can prevent that, but what I'm saying is that on this. MS. CIPPERLY-Fred, could I interject something here? MR. CARVIN-Sure. MS. CIPPERLY-One thing, two things. One pertains to your discussion right now. One is, when somebody comes to us and asks if they can, say do woodworking out of their horne, and they say, can I sell things there, and we say, no, you can't have somebody coming to your house to buy things. Maybe once a year you could have an open house or something of that nature, but on a regular basis, people should not be coming to your house to buy things. Another point I wanted to make. Jon had said that professional offices were only mentioned in connection with commercial zones in our Ordinance, but there are at least three other residential zones. There's Suburban Residential, Multi family Residential, and Urban Residential, which allow Professional Office incidental to Residential use. So I look at that and I look at the definition, the purpose of SFR, and it appears to be a more strictly Single Family use. So, I think there wa.s some definite thought given to what should go on in a Single Family Residential neighborhood. MR. CARVIN-Yes, and I agree with that, and I think that when you - 5 - are looking at a use that is other than Single Family, then the U~e Variançes and that mechanism kicks in. So, having said that, I 11 ask it anybody else has any questions or feelings on this? MR. FORD-I do. I, obviously, recognize that psychological counseling is a professional occupation, and I believe that it is conducted in a professional office, and both of those are defined, and I don't believe that psychological counseling conducted in a professional office, then, would be appropriately listed as a Home Occupation. MR. GREEN-I have a question. Do you consider yourself a medical profession, or a medical occupation? DR. PAPPO-No, I'm not a medical doctor. Psychologist. I'm not a medical doctor. degree. I do not prescribe medications. I have a Ph.D. I'm a I do not have a medical MR. GREEN-Are you licensed in any way? DR. PAPPO-I am a New York State Licensed Psychologist. MR. GREEN-I, personally, have to throw that into the medical field in general, and that's just the way I look at it, which drops it right in the middle of Professional Occupation. That's how I interpreted this. MR. THOMAS-I have to disagree with everything the gentlemen on the Board have said so far. I see this as right along the lines of, like Jon said, like in the lines of day care, of home tutoring, or anything else along those lines. In fact, it's not as intense as day care, where you have four or more little children running around all day. This is on a, probably a one hour per visit per patient. There's probably less traffic than if it were a home day care center. The same thing with the tutoring. Teachers, in the summer time, I believe, tutor students, and they probably do it two, three, four, five at a time, depending on the subject, and like that, and I see this as right there in that same boat, and I don't see any problem with this, because there are no machines used or other devices, like a dentist would use, like a dentist's chair and a drill and anesthesiology and all the other stuff. This is just, a person comes in, sits down, talks to the doctor. She writes down a few notes, it's over in an hour, an hour and a half, and they're on their way, and there's no really intensive use. It's like me coming over to your house, sitting down and talking to you fo,- an hour, hour and a half. The only thing is, you don't charge me. Those are the lines that I see it, and it's not on a regular basis, either. This isn't like a day care, where the kids are coming in at seven in the morning, leaving at five at night, or students coming in for tutoring, for one, two, three hours at a time, two or three times a day, depending on what's going on. MR. FORD--In fact, don't you meet with clients on a regular basis in your home, not on a daily basis, but on a regular basis? DR. PAPPO-No. I don't know what you mean? MR. LAPPER-Well, it wouldn't be like, I'll see you, every Tuesday at nine kind of thing. It's very loose, depending upon the client, depending upon her schedule, depending upon whether it's more convenient to meet down at the Hospital. So it just changes every day. MS. CIPPERLY-But would there be people coming on a daily basis, each day of the week? DR. PAPPO-Not necessarily every day. MR. FORD-Several days a week, perhaps? - 6 - -~-~"" DR. PAPPO-Yes, there could be, or I could be down in the Hospital. It varies. MR. LAPPER-Because of the nature of the clients, every day could be different, but certainly a couple of days a week, every week, sure. DR. PAPPO-It's not like day care where someone goes to school for a year. It's not like that. MR. THOMAS-Another thing, too, is the doctor not only sees patients in the Hospital. She also sees them at another doctor's office. The poor woman can't be in three places at once. So she can't be there 24 hours a day, seven days a week seeing patients. It's got to be sporadic, at the very most. MR. CARVIN-Well, I guess I have to ask the question, that if this is going to be sporadic, is this going to be a continuing problem? What is prompting the interpretation? I mean, obviously, you must feel uncomfortable with the situation for some reason. MR. LAPPER-What prompted the interpretation was that somebody reported her to Dave Hatin, that this was going on, that had nothing to do, just some personal matter that somebody decided that they wanted to tell the Town that this was going on. Dr. Pappo never disputed it. It's just a question whether this is a legitimate Home Occupation, but she always felt that she wasn't doing anything wrong, and we look at it as a question of interpretation of what is or isn't allowed to be done under the definition. She would certainly like the right to have, and hope the Ordinance gives her the right to see patients on a sporadic rather than regular basis at her home, because it's a nice atmosphere to see people. MR. FORD-Lets not have it be misinterpreted that what she is doing is wrong. MR. CARVIN-No, I'm not saying that. MR. FORD-I think our contention is that where it's being done is w,·ong. MR. LAPPER-Absolutely. MR. MENTER-I think, too, there's two questions. The question before us is more whether psychological counseling is something that is encompassed within the Home Occupation wording. It's not whether you, you know, should be doing it in the home. In!Il:i.. mind, I think the biggest issue here is a much broader one, something that we have to deal with down the road for quite a while. So it's two separate questions. I'm hesitant to say that it .is included, just because there's so many different ways that it could be done, so many different services, licensed and otherwise, that are so close to that. MR. LAPPER--What we're really asking is IrJhether it's not precluded, because we're saying that it º-ª1l be, unde)' some circumstances, and maybe that's a very specific group of circumstances that meet all these other requirements, but that it's not, what Jim is saying is that, as a matter of law, it's absolutely precluded that, under no circumstances can a psychologist be a Home Occupation, and we're saying that, under certain circumstances, that if you comply with everything else that's here, and it is sporadic, and it's not regular, that it's not precluded, and I think that that's the difference. DR. PAPPO-Also, the way I thought about look in the phone book, where I'm listed, professional office, is at 102 Park. Okay. it was, since, if you as having an office, When I see somebody - 7 - in the library in my home, that's not my office. My office is down at the Hospital. This is where, sometimes, I see people, for a variety of reasons, whatever it may be, but my professional office is not there. MR. FORD-What do you call where you meet with people in Dr. Seì" 1 in's? DR. PAPPO-That's an office. I mean, that's an office, and that's in the Hospital, too. So that when I see a patient at home, I don't call that an office. I do not have a shingle. I'm not even listed in the phone book. I don't have an ad. Where my name is listed is 102 Park. So I see this as my home, my library, my study, my husband's an M.D. If he has to meet with a colleague, you do it in the library. So I don't feel like I have a home office, as it's stated here. I have taken the liberty to work with people at home, and I would think if this was the office, it would be listed in the phone book, right, because that's why (lost words). MS. CIPPERLY-Do you have any employees? DR. PAPPO-No. I have no employees. At the Hospital, in the Hospital office there are receptionists, because there's several different doctors there. In my library, I have no one. I am the only one there, and my dog. That's what I am looking for. The case that came up, if I can say, I won't get too into it, but it was really a very, it had nothing to do with, it was not a pat,;. ient of mi ne. MR. LAPPER-It was not a neighbor, either. DR. PAPPO-It was not a neighbor. It was not a patient. It was kind of a bizarre person who, I don't know, viewed this as a lark, which I don't see it as a lark. MR. LAPPER-It was a relative of a patient. DR. PAPPO-No, it was a live-in boyfriend of an estranged wife of the children or something. I do want to be protected from that. So if I am going to see a patient, even on an emergency basis, in my library, I don't want to ever have to deal with that kind of thing. So I want to say, no, I can do this, and talk to people. MR. CARVIN-And I think that, to kind of expand upon what Sue has indicated, and I think this is what L would want to be cautious of, is that by using the Home Occupation interpretation, I think that we actually can be opening the door to other folks in the medical industry, and other professional folks, doing similar situations on a more, on an increasing basis, without the required Use Variances being sought. Now, again, I think the, what brought this to a head, basically, was an unusual situation, but that's not to say that there isn't a neighbor in the area, for some reason, who feels that, gee whiz, maybe you are becoming a little bit more intense than the use of your residence, and that the character of the neighborhood is being changed. MR. LAPPER-If that were the case, it would be because of the character of the use, and, certainly, we're not saying that all psychological uses. MR. CARVIN-What I'm saying it's a Home Occupation, and circumvented what the Single It is, as Sue has indicated, you can give. is that, you go back and say, well, you have, basically, what L feel, Family Residence zone is all about. the most stringent Use Variance that MR. LAPPER-I guess we agree with Chris, and see this more as a real Home Occupation, that she does this on the side, but I think that, in terms of professional, medical doctor or dentist, all - 8 - ...-/ these other types of professionals, they would be different, because they'd have machinery and employees. I think this is a very specific case that we're asking for because a psychologist is one on one, sitting in a chair. DR. PAPPO-With no equipment and there are no employees. MR. LAPPER-And for that reason, it does conform with all of these requirements of the definition. Whereas, other professionals wouldn't. At least that's Q.bl.I. position. I guess I don't want to get bogged down in the definition of what tools or, I think we could be splitting hairs. MR. MARTIN-I think the key here, and it's the long standing issue with this Home Occupation definition, is the term. regular basis. That's what's got to be established, is what constitutes regular use. Is it several times a week? Is it the same patient at the same location every time? MR. KARPELES-How do you enforce regular? MR. CARVII''-!-Yes. MR. MARTIN-Well, it's fraught with just saying from your standpoint, as an interpretation or a decision. enforcement problems. I'm a Zoning Board, handing down MS. CIPPERLY--The other thi ng that., I guess that's t.he two sort of basic questions we ask people when they come in, is, for one thing, are you going to have people coming back and forth, and the other is. are you licensed, and the license really has always been the, thrown you into the Professional Occupation, and I think we had that discussion with Dr. Orban's situation, also, and that's why Beautician is on the Professional Occupation list, is because that's a licensed. MR. LAPPER-How could that be fair, when you have woodworkers, sewers, that could be more intense, and say that that's okay because they don't have a degree, and someone who has a degree, why should they be punished for that? MR. KARPELES-I don't home woodworking shop, something at home. think a woodworker, that's talking about a I would interpret it, somebody that makes MR. LAPPER-But you could have somebody come to the house and build stuff that you sell elsewhere, and that would be fine. MR. KARPELES-I wouldn't consider that the same thing. MR. THOMAS-How about sewing? MR. KARPELES-I interpret that the same way. Somebody's a sewer. MR. THOMAS-For their own use? MR. KARPELES-Well, no. They might sew and sell it, but they do not sell it from their home. MR. THOMAS-The same thing with art work. MR. CARVIN-Well. how about brokerage? I mean, suppose I were to open up a, you know, could I claim a Home Occupation if I have a computer tied in to the New York Stock Exchange? MR. LAPPER-I think there's a real issue there, because so many people now the nature, and it definitely affect.s zoning, although there's not a lot of case law, yet, because so many people are doing so much at home with a PC that's only happened in the last t.wo or three years, and I guess it, ultimately, then will work - 9 - itself down to a lot of the municipal zoning codes, because that's happening now, and we're not, this particular situation isn't quite that, but I guess I think that if someone's on their own with their PC, and they don't have people come, they're home on the phone and people come sporadically and not on a regular basis, I would think that that's something that many Zoning Boards have been starting to deal with allover the Country, and I guess I think that that's a legitimate Home Occupation as long as it doesn't affect the character of the neighborhood. You don't have a shingle, and you don't have a lot of traffic. MR. CARVIN-Well, yes. I think that that's probably true, except that in this particular case, we do have a pretty clear definition of Professional Occupation, and where Professional Occupations are to be conducted in Professional Offices, and if it's on a sporadic basis, there's nothing that says that a person can't stop by and, like you say, have a beer and work out their problems, but the impression and the indication that's being given is that this could be more on a regular basis. In other words, fine, Joe Schmoe comes out and says, why don't we meet here again next week. Now that becomes a regular situation, until his or her problem is resolved, and I think that that is what I am trying to stay away from, under the Home Occupation blanket. MR. LAPPER-I guess I think that there's an issue there that you're not looking at, just in terms of whether or not it's okay to have it sporadically, but the real issue is whether it's regular, and then, certainly, it's an enforcement problem that if she's having people every hour, between nine and five, five days a week, that's certainly a regular basis, and somewhere there's a line that has to be drawn, and that's an enforcement problem, that it's too intense, and I agree with that, but I guess I don't think that this precludes a psychologist from seeing a patient at nine o'clock, a patient at four o'clock, and two days later seeing somebody at twelve and at two. I just don't see that, people coming by, one at a time, at very times during the day, I don't see that as a regular basis, and I guess that's where we differ. MS. CIPPERLY-What would you say if an attorney was seeing people? MR. FORD-That's what I was just, I wanted to draw a comparison, if I could. Normally, I would see my attorney in his office, but in an emergency, I would call him at home, and under no circumstances would consider that a Home Occupation. Although he would provide a service to me on an emergency basis there, and I don't think that would ever be challenged, but if I were to be calling him and meeting with him at home, for legal matters, with frequency, perhaps on a weekly basis, or if he were having several of his clients meet with him at home on a regular basis, then I think that's an infringement on the Home Occupation, and it's inappropriate. MR. LAPPER-I agree with that. I think that that's a matter of, that's a question of degree, and that there's nothing wrong with the attorney, per say, having a Home Occupation. It's just a question of whether it's sporadic, emergency, or regular. MR. FORD-Frequency is certainly an issue, and I certainly would concur with emergency, but I think that's an issue that takes it out of the realm of Home Occupation. I think when the frequency is regular, either with the same or different patients, but with regularity in the home, then that's an inappropriate infringement on Home Occupation. MR. CARVIN-And you could be subject to the Use Variance criteria, and I think then you would be subject to, obviously, enforcement or the Use Variance criteria. I mean, if you really want to protect yourself, I think that that's probably the best course of - 10 - -.."," action, is to apply for a Use Variance under the Professional Office. MR. LAPPER-I guess I think if a Use Variance were granted, it would be more intensive than what we're looking for here, which is just the sort of a loose right to do this on a sporadic basis, which I think this doesn't preclude. MR. CARVIN-Then it's sort of like the insurance policy. If you feel that you've got an exposure, or are subject to criticism, then sometimes it's better to get the insurance policy to protect yourself against that, and my feeling is that the insurance policy is the Use Variance. MR. LAPPER-If this were a did all her paperwork and only office, then I think but since it's only one of case where this was her office and she everything was here, and this was her we'd want to or need to address that, three places. MR. FORD-It's one of three offices. MR. LAPPER-Yes, that I'm not trying to set precedent for the Town, in terms of letting every other psychologist open up a home office, only to say that, this unique pattern where, in our mind is sporadic and is one of the three offices that that fits in with this definition, and that the Ordinance doesn't say that, even though it's licensed, that you can never have a service activity that happens to be a professional service activity. I don't see that. MR. CARVIN-Okay. Any other comments or questions, gentlemen? MR. THOMAS-Not right now. MR. CARVIN-All right. I'll open up the public hearing. PUBLIC HEARING OPENED RICHARD MATES MR. MATES-My name is Richard Mates. I am a neighbor of Marice. I live at 42 Willow Road, which is approximately three doors down across the street from them, and I can tell you that no one would ever be aware that there was any professional counseling going on at their house. It's one of the quietest houses in the neighborhood. I've never seen more than two cars in the driveway, including their own. My own house has more noise coming from it and more cars in the driveway frequently than theirs. There's certainly been no impact on traffic at all, and I, obviously, can't speak for everyone else in the neighborhood, but I think anybody driving by there would have not had a clue that there was any professional counseling being conducted, even on a sporadic basis there. I honestly didn't know it was going on, myself, until I got this letter in the mail a couple of weeks ago. So certainly, speaking personally, I think it has had no impact, whatsoever, on the character of the neighborhood. MR. CARVIN-Okay. this? Thank you. Anyone else wishing to be heard on ALEX FRANK MR. FRANK-My name is Alex Frank. I live at 57 Willow Road. I have the property adjacent to Dr. Pappa and Dr. Hay's property. We have the largest number of linear feet in common with their property, and the part of the house where people enter is directly visible from our home. First, I guess on the comment that it's a disturbance to us, it is most certainly not, and we are, essentially, not aware of it, of any activity outside the comings and goings that are in a normal suburban home. I don't perceive an excess of traffic or an irresponsible behavior on the - 11 - part of people who may come from the home, who I cannot distinguish between other visitors. The aesthetics of the property are very much, to use the term, in keeping with the neighborhood. I think that it is indistinguishable from any of the other homes in the area, and it does not have a look different from any of the other homes in that development, and again, I don't perceive any difference. (Lost word) the tone of what's going on there, if you can use the term, tone. I just, I would say that it is extremely difficult to detect any, there's a remarkable homogeneity of properties in that area. I don't know if you're familiar with it, but it is pretty similar, and it's really possible remark on any difference from any of the adjacent properties. Just as another issue for Mr. Green, I think that the minority of individuals would consider a Psychologist a medical profession. That would be a minority view. MR. GREEN-What type of profession would you consider it, then? MR. FRANK-If you wanted to give it a name, I'd call it a profession, if you were forced to derive a moniker for it, but it usually stands by itself. (lost word) physician. So I guess I'm familiar with those issues. A psychologist represents a group of individuals who don't, they're just not associated with the medical profession. MR. GREEN-Wouldn't you consider, though, your mental health part of a medical condition? MR. FRANK-For the most part, it really depends on the nature of the training, and I don't want to be perceived as splitting hairs, but I'm just trying to give you the majority view, and, yes you could call it a mental health profession. That's adding a term that I think is unwarranted. It's a Psychologist, and it's defined by, a Psychologist is defined by what they do, and, no, I would not call it a medical profession. DR. PAPPO-I Psychiatrist would be a medical. MR. FRANK-Thank you. MR. CARVIN-Okay. Thank you. Anyone else wishing to make comment on the Interpretation? Any comments? Any correspondence? MR. THOMAS-Yes. We have one correspondence. Record of Telephone Conversation dated 7/20/95, time of 1:10 p.m. Conversation between a concerned neighbor, anonymous, and Sue Davidson, Subject is Interpretation No. 4-1995, Pappa and Hoy, "Psychological Counseling is Home Occupation 'Fraudulent use of property from Day One (violation of Zoning Codes)' Doesn't want this use on property." DR. PAPPO-Who is that? MR. THOMAS-Anonymous. DR. PAPPO-There's no address? MR. THOMAS-Nothing. MS. CIPPERLY-Apparently, they got a notice, though. MR. THOMAS-Apparently they got a notice, but I don't take any stock in anybody that signs it anonymous. MR. CARVIN-Okay. Any other public comment? PUBLIC HEARING CLOSED MR. CARVIN-Okay, gentlemen. - 12 - ~",,-,/ MR. GREEN-I've heard a lot of really good arguments that would probably sound very good as a Use Variance, but as far as this Interpretation is concerned, I still can't go along with it. MR. MENTER-To me, the key issue is the SFR-l zone and the importance of that zone and keeping it just that, Single Family Residential. Again, we're talking about an interpretation of the Ordinance, not an interpretation of your situation. I don't see, I think the current Professional definition is correct, as it applies to this zone. I think changing that, it would be difficult and it would have an effect on a lot of neighborhoods, similar types of businesses. MR. KARPELES-I agree with Jim's interpretation. I think psychological counseling would be considered a professional occupation, not a home occupation, therefore would not be an allowed use in the Single Family Residential zone. I agree with that. MR. FORD-I don't want to be redundant. stated the way I feel, and I concur interpretation. I think with I've already t1r. Ma r tin's MR. THOMAS-I disagree with Mr. Martin's interpretation and I think this goes right along the lines of a day care center, someone that tutors in their home, and the home occupation. They said there are no signs and Dr. Pappa has no signs out. There are no employees in there. It's not done on a "regular basis" even though we haven't defined regular basis. It's not as intense as other home occupations that are listed in Home Occupations, such as knitting, sewing, woodworking and artwork, and I think it should be considered a Home Occupation. It doesn't use any kind of mechanical devices or any kind of machinery, like a dentist does, or any other doctor, doesn't use any kind of medical tools. There's no X-ray machines. There's no laboratory vehicles pulling in and out all the time to take specimens, or whatever, in and out of the place. I think it's just two people to go in and talk to each other, one helping another, and that's all it is, and it happens every day, but not all of them are psychologists. It just happens that this one is, and I think Jonathan Lapper has stated in his letter exactly why this should be considered a Home Occupation. MR. CARVIN-Okay. Well, I think my feeling is pretty much unchanged. I think it's an awful broad interpretation of Home Occupation. I think that the Single Family Residence is the hardest residence, the one that we should be protecting the most. I think we have a pretty clear definition of Professional Occupation and Professional Office in this particular situation, and I think that, to go against the Zoning Administrator and his interpretation I think will open up a Pandora's Box. So my feeling basically is that the interpretation is correct. Having said that, I would request a motion. MOTION THAT IN THE INTERPRETATION NO. 4-95 MARICE PAPPO. PH.D & CHRISTOPHER HOY THAT THE ZONING ADMINISTRATOR'S INTERPRETATION WITH REGARD TO THIS PARTICULAR SITUATION BE CONSIDERED A pROFESSIONAL OCCUPATION AND NOT A HOME OCCUPATION, AND THEREFORE WOULD NOT BE AN ALLOWED USE IN A SINGLE FAMILY RESIDENTIAL ZONE. I THINK THE DEFINITIONS OF PROFESSIONAL OCCUPATION AND PROFESSIONAL OFFICE AND THE HOME OCCUPATION DEFINITIONS ARE PRETTY CLEAR, AND I SEE NO NEED TO CORRECT OR ALTER THE ZONING ADMINISTRATOR'S DECISION., Introduced by Fred Carvin who moved for its adoption, seconded by Robert Karpeles: Duly adopted this 27th day of July, 1995, by the following vote: AYES: Mr. Green, Mr. Menter, Mr. Karpeles, Mr. Ford, Mr. Carvin NOES: Mr. Thomas - 13 - MR. CARVIN-We have a support of the Zoning Administrator. USE VARIANCE NO. 34-1995 TYPE: UNLISTED SFR-IA VERNAN CANAPE MICHAEL CANAPE OWNER: FLOYD SHOVAH 637 GLEN STREET APPLICANT PROPOSES TO UTILIZE THE FIRST FLOOR OF A BUILDING FOR PROFESSIONAL OFFICES, AND THE SECOND FLOOR AS LIVING SPACE FOR THE OWNER. A USE VARIANCE IS SOUGHT SINCE THIS IS NOT A PERMITTED USE IN A SINGLE FAMILY RESIDENTIAL ZONE, SECTION 179- 20D. (WARREN COUNTY PLANNING) 7/12/95 TAX MAP NO. 106-1-9 LOT SIZE: 0.21 ACRES SECTION 179-20D HOWARD A. DENISON, REPRESENTING APPLICANT, PRESENT MR. CARVIN-Before we start, with regard to this situation, I believe, Mr. Thomas, as I understand it, you will þe acting as Secretary, but will abstain from any comments or decisions? Is that correct? MR. THOMAS-That is absolutely correct, as I did before on the previous variance request on this property. MR. CARVIN-Okay. MR. THOMAS-IIAt a meeting of the Warren County Planning Board held on the 12th day of July 1995, the above application for a Use Variance to use existing structure for professional office space and occupy ,a second floor apartment., was reviewed and the following action was taken. Recommendation to: Approve Comments: While this is not a residence and it is in a residential zone, this seems to be a very, very light commercial use which would probably make a good transition between the two zones, if another zone is set up." Signed C. Powel South, Vice Chairperson. And that's it. MR. CARVIN-Okay. Before we begin, gentlemen, we have to address a couple of issues. The first issue, basically, is is this the same or similar application that was applied for in 1993 and prior to that in 1991? Now I have a statement that I will,or an opinion that I will read into the record. I will tell you the format. If you agree with my position, four votes will be required to support this. If we have a split vote, then we would proceed with this Use Variance. If four votes or more are agreed with my opinion here, we then would have to have a vote to either re-open and re-hear this particular application, all right. Does everybody understand? MR. KARPELES-No. Could you go over that last part again? MR. CARVIN-Okay. In other words, I have an opinion and a motion, with regard to this application. If this Board feels that my motion is correct, or my oplnlon is correct, then we would need to have a second vote to re-hear this particular application. If this Board feels that my motion is incorrect, or I have less than four votes, then this Use Variance stands on its own merit, and we may proceed. MR. FORD-May that second vote be a simple polling of the individual members? MR. CARVIN-Well, the second vote, my motion, in essence, I feel that this is the same motion that has been presented a number of times, the same application, I'm sorry. If the Board agrees with my position, then we need a unanimous vote to re-open and re-hear this particular application. MR. KARPELES-The unanimous vote would be the five of us? MR. CARVIN-Right. Now, again, I will read this, and we can have a discussion on this. Okay. - 14 - / ~ WITH REGARD TO USE VARIANCE NO. 34-1995 VERNAN CANAPE MICHAEL CANAPE THE APPLICANT IS PROPOSING TO UTILIZE THE FIRST FLOOR OF A BUILDING FOR PROFESSIONAL OFFICES AND THE SECOND FLOOR AS A SINGLE FAMILY RESIDENCE. IT IS MY FEELING AND' OPINION THAT THIS IS THE SAME RELIEF BEING SOUGHT THAT HAS BEEN PREVIOUSLY DENIED UNDER USE VARIANCE NO. 35-1993. TED BIGELOW. ET. AL.. DATED 5/19/93.' IN THAT VARIANCE. THE APPLICANTS WERE PROPOSING TO USE A' SINGLE FAMILY RESIDENCE AS A PROFESSIONAL OFFICE. BOTH APPLICATIONS WERE SEEKING RELIEF FROM SECTION 179-20D. WHICH DOES NOT INDICATE PROFESSIONAL OFFICE AS AN APPROVED USE IN A SINGLE FAMILY RESIDENTIAL ZONE. IN ADDITION. A USE VARIANCE WAS SOUGHT AND DENIED ON 9/18/91. USE VARIANCE NO. 72-1991. CHAIRMAINE SILIPIGNO. IN WHICH RELIEF FROM SECTION 179-20D. WAS SOUGHT FOR THE ESTABLISHMENT OF A BEAUTY PARLOR. BEAUTICIANS. BY TOWN DEFINITION. IS A PROFESSIONAL OCCUPATION CONDUCTED FROM A PROFESSIONAL OFFICE. ALTHOUGH IN ALL THREE CASES THE APPLICANTS ARE DIFFERENT. THE OWNER OF THE PROBLEM IN QUESTION IS FLOYD SHOVAH. WHO PURCHASED THE PROPERTY IN 1988. IN ALL THREE CASES. THE RELIEF BEING SOUGHT IS THE SAME RELIEF FOR THE PROFESSIONAL OFFICE. ALSO. WHEN COMPARING THE REASONS FOR RELIEF BEING SOUGHT FROM THE '91 AND '93 APPLICATIONS TO THE CURRENT APPLICATION. I SEE NO SIGNIFICANT CHANGE IN THE REASONS. ESSENTIALLY THE SAM~ ~RGUMENTS WHICH WERE PRESENTED IN 1991 AND IN 1993 ARE AGAIN BEING PRESENTED. YOU MIGHT ARGUE THAT THE LATEST REQUEST IS DIFFERENT BECAUSE THE APPLICANT IS INDICATING THE SECOND FLOOR WILL BE USED AS A LIVING SPACE. HOWEVER. THE ZONE IS SINGLE FAMILY RESIDENTIAL. AND THERE IS NO NEED TO GRANT RELIEF FOR A SINGLE FAMILY RESIDENCE. SO THE RELIEF BEING SOUGHT IS THE SAME. JUST THE FORMAT AND THE APPLICANTS ARE DIFFERENT. TWO PREVIOUS ZONING BOARDS HAVE HEARD AND DENIED THE USE VARIANCE APPLICATIONS FOR PROFESSIONAL OFFICE USE. AND I PERSONALLY CAN SEE NO REASON WHY THIS BOARD SHOULD BE SUBJECT TO CONTINUALLY HEARING ESSENTIALLY THE SAME REQUEST FOR A PROFESSIONAL OFFICE IN A SINGLE FAMILY RESIDENTIAL AREA AT THIS LOCATION. I. THEREFORE. MOVE THAT THIS APPLICATION IS. FOR ALL PRACTICAL PURPOSES. IDENTICAL TO THE PREVIOUS USE VARIANCE APPLICATIONS. REQUESTING THE SAME RELIEF FROM SECTION 179-20D. AND CAN ONLY BE HEARD BY A UNANIMOUS VOTE BY THIS BOARD TO RE-OPEN AND RE-HEAR THIS REQUEST., Introduced by Fred Carvin who moved for its adoption, seconded by Thomas CaYvin: Duly adopted this 27th day of July, 1995, by the following vote: MR. CARVIN-Now, if four votes support this position, then we would have to go to Phase II. which we would need a unanimous vote to re-open and re-hear this application. If I have less than four votes, then this application is deemed by this Board to be different, and we would hear it on its merit. Now, are there any questions on this motion? Before I ask for a second, I want to make sure that everybody understands this. MR. MENTER-Yes. I mean, the motion's perfectly clear. MR. CARVIN-Okay. Then I would ask for a second. MR. FORD-I'll second. MR. CARVIN-Okay. Is there any discussion on the motion? MR. DENISON-Is there any comment allowed from the applicant? MR. CARVIN-I will allow the applicant, public situation, okay, but certainly the you wish to comment on my motion, I comments. although it is not a applicant, you know, if would entertain your MR. DENISON-Okay. We'd, first of all, like to amend what we had requested there, and it's the first floor, in its entirety, being used for professional offices, which probably doesn't change your motion, but just to allow the Board, we'll only be using two - 15 - rooms total on the first floor, and the kitchen would remain as part of the residence. Directly on to your motion, we would strongly argue that this is quite different as to the intense use of the property. True, it is under the office, under same, 290- D, but the first application was for a beauty parlor, which was very much, in !I!.Z.. eyes, a commercial use, with people traveling in and out of the property on a regular basis, with a large parking lot attached, a large change to the outside parking facilities. The application, the second application, was for professional offices, where there were going to be different uses in the same building, different types of professional offices in the building. The entire building would be used, first and second floor. There would have been three different entities in that building, with 10 spaces being added to the property, taking away a portion of the back yard, moving the garage, and certainly having a larger impact on the area than this application, which is only asking for three parking spaces, and doing no other changes to the property, adding a macadam of maybe 20 feet by 40 feet, at most, which is there in the application, and the other two times that it's been before the Board, I was at one of them, as my associate, Ted Bigelow, who was named in the second application there. At that time, it seemed that the only problem or part that we didn't meet was the change in the neighborhood because of that parking situation, the amount of traffic that would be coming in and out. This application is much, much lighter, and it is two years later, and the property has gone through changes as far as some things that were mentioned in the first application and recommendations to make it more residential, which was putting up a fence around the property. That has been done over a year ago. The property has been continually marketed as residential. I don't think anybody on any of the previous Boards has had any problem with it. The use in all three situations, first as beauty parlor, second as professional offices, and now this much lighter use, I feel it deserves the full review of the Board and all of its particulars, in order to be fair to the applicant and the homeowner, and to the people that wish to purchase it. MS. CIPPERLY-Could we have your name for the record? MR. DENISON-Howard A. Denison. Thank you. MR. CARVIN-Okay. Are there any other questions on the motion? Does anyone wish to have a public hearing on this motion? MR. KARPELES-I don't see where it's necessary. MR. CARVIN-Okay. Do you feel that the significant time to present his argument before I put it to a vote? applicant against the has had motion, MR. FORD-He made a statement. We've listened. MR. CARVIN-Okay. I have a second, don't I? MR. FORD-Yes. MR. CARVIN-Okay. Then I would ask for a vote on this motion, that this, now again, I want to emphasize, okay, I therefore move that this application is, for all practical purposes, identical to previous use variance applications requesting the same relief from Section 179-20D, and can only be heard by a unanimous vote of the Board to re-open and re-hear this request. That is my motion. Okay. I would ask for a vote, Maria. MR. GREEN-One moment, please. What was that last statement you just said, about the unanimous? MR. CARVIN-That this application can only be heard if we re-open it and re-hear it, and we need a unanimous vote to do that. - 16 - / MR. FORD-So an affirmative vote? MR. CAF<VIN-An affirmative vote says, yes, you feel that this is the same situation that has been looked at, and that there is no significant change. AYES: Mr. Green, Mr. Menter, Mr. Karpeles, Mr. Ford, Mr. Carvin NOES: NONE ABSTAINED: Mr. Thomas MR. CARVIN-Okay. Having said that, we now would require a unanimous vote by the Board to re-open and re-hear this particular application. The Board has decided, by a vote of five yea and one abstention, that this is not different than previous applications. I would now ask if anyone wants to re-open and re- hear this request? Okay. I will poll the Board. Bill, do you wish to re-open and re-hear this request? MR. GREEN-No. MR. MENTER-I don't see any changes in the findings from the previous applications. MR. CARVIN-Okay. Would that be considered a no? MR. MENTER-It would be. MR. CARVIN-Okay. MR. KARPELES-No. MR. FORD-No. MR. CARVIN-And I see no need to re-open or re-hear this request. So, having said that and done that, that's the end of the story. We will not hear this Use Variance. Do we have Passarelli tonight? MR. MARTIN-No. MR. CARVIN-Okay. Any other comments? other business, we will adjourn. Otherwise, if there is no On motion meeting was adjourned. RESPECTFULLY SUBMITTED, Fred Carvin, Chairman - 17 -