The zoning board of appeals, by a vote of 3 to 2, denied an application for a use variance from the law firm of Sclather and Birch which would have allowed them to convert another Main Street home to professional office space.

The denial came after the board gave the application a positive declaration for the mandated State Environmental Quality Review Act (SEQRA) process which examines the impact the project would have on its surroundings.

The positive declaration calls into question the denial of the project because it should have triggered the completion of a draft environmental impact statement (DEIS) by the applicant, according to Otsego County Planning Director Diane Carlton.

Carlton said Wednesday morning that once a positive declaration is made, a board can not deny an application until the applicant has an opportunity to complete a DEIS, the public has an opportunity to make comment and a final environmental impact statement is completed. Only after the environmental impact statement is complete may a board make its decision to approve or deny an application.

The application from the law firm is for a use variance for the house at 194 Main Street. The firm wants to be able to use the house for both apartment and office space. The property is flanked by two homes which the firm has already converted to offices. Sclather and Birch have a contract to purchase the property, but it is contingent on their ability to obtain the use variance.

The area of Main Street where the homes are located is across from the courthouse and county office building and is zoned residential. Over the years, the number of homes converted to business and office use has grown through the granting of use variances.

During a public hearing on the application earlier this month, Mayor Wendell Tripp voiced his concern about the affect of use variances.

"I would suggest that what the ZBA has done through granting use variances has in effect changed the zoning of that area without going through the process," he said. The zoning law, he reminded them, is supposed to preserve the residential character of the village.

"The purpose of the law as set forth in the preamble is not to solely preserve residential quality. The area of the county office building has been changing. Certainly it has in the 25 years since I've been here," replied attorney Bob Schlather.

In Tuesday's ZBA meeting, Debra Crampton, who owns the home at 194 Main St. with her husband Robert, said that they are surrounded by what she considers a commercial environment. "It has become less of a neighborhood because of the changes," she said.

Those changes, she reminded the board, came about through decisions made by the ZBA.

The ZBA gave the application a positive declaration because during the completion of the evironmental assessment form it was determined that granting the use variance would be inconsistent with the village zoning law and map. They also cited the possibility that granting this use variance would lead to more applications for variances. "Allowing one opens it up for others," said board member Judith Insinga.

"Unfortunately," said new board member June Christman, "the property is in the middle of what you've done."

Once the positive declaration was approved, the board turned its attention to the zoning law's procedure for granting use variances.

Snell told the board that they had to look at the critiera in the law when deciding whether or not to grant the variance and not whether it would be a good use for the property. "The reality is is that we need to use the criteria in the zoning law for our decision," she said.

Schlather, a certified public accountant, presented information that he contended demonstrated not granting the use variance would create a financial hardship for the owners, but Snell was not swayed by the arugment. Schlather said that as a CPA he takes "umbrage" at the fact they did not accept his financial analysis. "Unless you have other information, you have to accept what is presented," he said.

The fact that a property owner would not make as large a return as they could with the use variance does not constitute hardship, Snell said.

The board also found that the situation facing the owners of the property is not unique to them, but is faced by other property owners too.

Christman again brought up the fact the owners did not grant the variances on either side of their property and create the current situation.

The ZBA chairman alluded to the appropriateness of those earlier variances when she said, "my understand if the criteria is much clearer than ever before."

Schlather again addressed the changing character of the neighborhood and suggested that there is a need to alter the zoning. "One of your duties is to recognize the area is changing and maybe you need to recognize that fact and take a proactive approach," he said.

"I think we need to defer to the board (of trustees) for that decisoin," Snell replied.

The board voted 3 to 2 to deny the application with Snell, Rick Jagels and Insinga in favor and David Adsit and June Christman opposed.

Schlather said Wednesday that he is reviewing available options, but is not at liberty to discuss them. "We're working with the seller to reach an accord," he said.

He said he suggested as early as the mid-1980's that a professional office zone might an appropriate way to zone the Main Street area near the county buildings.

The cost of maintaining large Victorian homes can be prohibitive to private owners, but that in a business setting it is a viable way to keep the residential appearance of the homes while using them for office space. It would also help keep jobs in the village because so much of downtown has been given over to tourist related business.

Snell said Wednesday afternoon that the board seldom is required to go through the SEQRA process and that she would follow up to be certain the proper procedures were adhered to and would work to make sure the ZBA correctly reviews and decides on the application.