Zoning Board of Appeals
Special Meeting
March 7, 2013
8:00 p.m.
The Special Meeting of the Zoning Board of Appeals of the Village of Briarcliff Manor, New York was held in the Village of Briarcliff Manor Village Hall, at 1111 Pleasantville Road, Briarcliff Manor, New York on the 7th of March 2013 commencing at 8:00 p.m.
Present
Ronald Alenstein, Chairman
Christopher Bogart, Member
Michael Gioscia, Member
Nicholas Moraglia, Member
Also Present
David Turiano, Building Inspector
Absent
Hillary Messer, Member
V-5-2012 - Holly Hill, LLC 298 Scarborough Road
A variance was requested because an application to construct an accessory building and illuminate tennis courts at an existing single family dwelling was denied due to nonconformity with Column 18, Accessory Building Maximum Height for Sloping Roof and Section 220-8, Regulation of Tennis Courts of the Code of the Village of Briarcliff Manor.
The following items were marked as Board Exhibits:
- Code Compliance Worksheet dated October 25, 2012
- Letter from Shamberg, Marwell & Hollis, P.C. dated October 26, 2012
Application for a variance to the Zoning Board of Appeals by Bill Manderville
Code of Ethics signed by Bill Manderville dated October 24, 2012
Affidavit of Publication
Short Environmental Assessment Form dated October 24, 2012
Property Cards
Site Plan dated November 21, 2012
Architectural Plans dated October 21, 2012
Lighting and Control Design Plans dated November 28, 2012
Affidavit of mailing signed by Julianne C. Lopez
Building Department letter of denial to Holly Hill, LLC dated October 25, 2012
Letter from Village Clerk to John Marwell dated November 15, 2012
Letters to the Planning Board from the Applicant dated October 26, 2012 and November 28, 2012.
Survey of Property dated November 19, 2012
Letter from the Building Inspector to the Village Clerk regarding public notice
- 29 Certified Mailing Receipts
- Email from Leslie Allen dated February 28, 2013
DISCUSSION:
Chairman Alenstein stated at the conclusion of the last hearing the Board requested an additional submission that basically consisted of an analysis of whether or not the pavilion structure could be located elsewhere on the site. He thanked the applicant for their submission and apologized for the scheduling conflict that arose earlier in the week. He further stated that since the last meeting the most proximate neighbor, Leslie Allen, who appeared at the first public hearing and made a fairly vigorous presentation in opposition to the application, submitted an email to the Board rescinding her opposition stating she met with the owner of the property and further reviewed the plans. Chairman Alenstein asked if any of the Board members had comments or questions.
Member Gioscia read aloud the following statement:
“Since the magnitude and complexity of this project is significant, and also since I do not have the time to actually prepare a dissertation and presentation on the present application for and area variance regarding a roofed pavilion with lighting at the Holly Hill estate, I did have time to perform my due diligence and take some significant notes, so I would feel more comfortable introducing my comments at this meeting by reading them into the minutes.
In reference to Mr. Marwell’s letter dated February 27, I would like to first reply to his reasoning and supportive arguments substantiated by law and case studies before I render my vote as to the granting of the variance. Mr. Marwell’s comment that “consideration of other sites on the property being feasible… to the pavilion” is superfluous is flawed, using the analysis under Section 7-712-b(3) of the village law as the most applicable argument. The most applicable sections regarding area variances are Section 3b(1)- referring to undesirable change in neighborhood character, Section 3b(2)- alternative cure sought, and 3b(4)- adverse effect or impact, are clearly those sections that must be considered in the balancing test. Along with the initial concerns expressed at the public meeting by Ms. Leslie Allen,
these clauses pertain specifically to the negative impact on the neighbors and the direct neighborhood. Additionally, then if the alternative site as outlined west of the pool actually then comes under consideration, Section 3b(3)- whether the requested area variance is substantial, would also directly apply.
Mr. Marwell’s second argument citing the case Baker vs Brownlie, which suggests the Zoning Board limit its review to the proposed location rather than an alternative, is a nominally applicable argument in the current consideration since the initial stated purpose of the proposed pavilion by the applicant was primarily as a tennis court, and that the area chosen was for convenience seem neither convenient (being some 950 feet away from the main house with no proposed plumbing to the pavilion), nor conducive to playing tennis matches due to the constriction of the height of the ceiling, even with its proposed increased height. The alternative location provides considerable advantages regarding both convenience and impact, and with regards to
area variance considerations-those causing an adverse effect or impact on the physical or environmental conditions of the neighborhood or district or an undesirable change in neighborhood character detrimental to nearby properties, an alternative site should definitely be one such consideration for cure. Although the alternative site requires additional variances, the alternative site would appear to have far less impact on these particular balancing issues. I also thought it was interesting that Mr. W. Charles Utschig, PE, rendered his written opinion as to how the alternative site would require retaining walls, yet there was no mention of my request to consider gradual grading with sloping on either side, or both, instead of retaining walls. I also was not clear as to why the alternative site is specifically labeled a "front yard" which requires additional variance consideration.
Mr. Marwell's third argument regarding the movement of soil (Section 220-8B6 of the tennis court regulations) may very well not apply since it is the pavilion with its multiple stated purposes of tennis, entertainment, etc. that actually requires such significant movement of earth for construction and not the tennis court itself. Should such a pavilion as proposed, with or without a tennis court, be constructed with even a moderate amount of leveling for people to walk, the additional leveling for tennis court would be minimal.
The next comment in the February 27 letter regarding the "front yard", although briefly mentioned above, once again raises the question as to how that area was labeled as such, and if this was an absolute, then no consideration would've been given to this site since Section 220 -8B5 prohibits a tennis court, but not evidently an accessory structure. Why was an entire alternate structure rendering with professional engineering commentary even submitted if this was by law prohibited?
All of the above comments and arguments regarding this area variance dilemma, whether they be the concerns of the requested variances, or (any and all) considerations for alternatives including denial, were, for the most part, satisfied by the recent letter written by Ms. Leslie Allen, the neighbor most impacted by this project. As she had expressed initial concern at a public hearing, and now has stated in writing in a letter addressed to the Zoning Board of Appeals, that she has met personally with the owner, Mr. Gutfleish, and is now satisfied that the intended use of the structure, the lighting of the structure, as well as the plantings between her property and the applicant’s property,
will not significantly nor adversely impact her home or property. It had been suggested by this Board from the beginning that a clarification of the intentions of the proposed pavilion is made clearer, either by the owner or by any representative of the owner, which would adequately address the “direct impact” concerns on the neighborhood. This simple means of communication may likely have avoided the significant time, effort, money, and involvement of various engineers, architects, landscapers, and lawyers spent in order to satisfy the concerns of the Zoning Board so that they could make the responsible and informed decision on this application. I believe a very important responsibility of the Zoning Board of Appeals is to protect the integrity of the neighborhood and its neighbors, and weighs heavily in the
balancing test. This philosophy appears to be completely substantiated by the Guide to Planning and Zoning Laws in New York State. And it is for this reason that I am inclined to vote to approve the proposed pavilion in its current location with the provisions of additional plantings. The setback towards the unmarked wetland should make no significant difference. I would also vote to approve the additional variance requested requiring the movement of some 461 yd.³ of soil.”
Member Bogart stated he did not have any questions for the applicant.
Member Moraglia stated he did not either.
Chairman Alenstein asked what convinced the applicant that the alternative location was considered a front yard.
Mr. Charles Utschig, Engineer for the Applicant, stated the lot had frontage on more than one road and they weren’t entirely clear if it was a front yard but it would be up to the Village’s Code Enforcement to determine.
Chairman Alenstein stated that pools were prohibited in front yards as well.
Village Engineer Turiano stated he would determine if it was a front yard and the code read that if a property abuts a public right-of-way it would be considered a front yard. He stated some property’s had more than one front yard and a pool needed to be 100 feet or more from the property line if placed in a front yard.
Member Gioscia stated Mr. Marwell’s letter defined the area as the front yard.
Chairman Alenstein stated the Board had granted variances for pools in front yards before and he didn’t think placing a tennis court in the alternate location would present any insurmountable obstacles. He stated the point that the applicant’s counsel made was that the applicant did not want the pavilion in the alternate location. He stated the Board could not order the applicant to move the pavilion but they could consider whether in the course of balancing the benefit to the applicant against the detriment to the neighborhood the same benefit to the applicant could be achieved by moving the pavilion. He stated he did not feel the exercise was superfluous and noted that the case mentioned by the applicant where it was ruled that a Board had no business telling an applicant to move his oceanfront patio to a
non-oceanfront location was not totally valid in relation to the application before the Board. He asked why more than 200 cubic yards of earth would need to be moved for the tennis court.
Mr. Utschig stated the 200 cubic yard threshold in the Village Code was a very tight criterion and unless there’s less than a half foot of grade change they’d exceed the limit. He stated they would not move a lot of earth on or off of the site.
Chairman Alenstein asked if moving the pavilion back would cause more earth to be moved.
Mr. Utschig stated there would be a very small difference.
Chairman Alenstein asked if the applicant had any further information they wanted to present to the Board.
Mr. Utschig stated he wanted to note that the application was submitted as an accessory structure and putting it in to the category of a tennis court changed the calculations used for moving earth.
Chairman Alenstein stated it was a tennis court specific variance requested and tennis courts were not permitted to have lights.
Member Moraglia stated the request seemed to have morphed from a tennis court to a pavilion and it was difficult to see the true intention.
Mr. Utschig stated it was a covered tennis court with lights.
Mr. Marwell stated he appreciated the Board holding a special meeting.
PUBLIC COMMENTS:
Chairman Alenstein stated there weren’t any members of the public present.
Upon motion by Member Bogart, seconded by Member Gioscia, the Board voted unanimously to close the public hearing.
DECISION:
Member Gioscia stated he voted to approve the variances requested for the height and the lighting with the proviso that if it was necessary to require a variance for earth removal in excess of 200 cubic yards for a tennis court and move it 5 or 9 feet further back towards the wetlands he would be in favor of that with the conditions of additional plantings and a motion detector for the lights.
Member Bogart read the following statement aloud:
Briarcliff Manor Zoning Board of Appeal
Holly Hill matter
Comments on the Application and reasons for decision by Member Bogart
The Holly Hill property is a sizeable and historic estate of some 60 acres located in the heart of Briarcliff Manor’s Scarborough corridor. The estate was owned by the Astor family for many years until the death of Brooke Astor and had fallen into some amount of disrepair; the current owner (the “Applicant”) purchased the property recently and has been engaged in a substantial construction and renovation project.
The size of the property means that virtually everything the Applicant wishes to do can be achieved without a variance. However, the Applicant’s plans include a desire to construct a tennis court-sized pavilion with open sides, a high roof and recessed lighting.
A degree of confusion and uncertainty exists around the application for the variance and the use to which the pavilion is to be put. On the one hand, the Applicant has sought variances from portions of the Village Law (the “Law”) that are specific to tennis courts – originally a variance seeking permission to have recessed lighting, whereas no lighting of tennis courts is permitted under the Law, and more recently an additional collateral variance for the amount of earth movement required for the pavilion’s construction because the Law caps the amount of earth movement specific to the construction of tennis courts. On the other hand, the Applicant and its counsel have seemed to go to some pains to avoid limiting the use and characterization of the pavilion to just a tennis court; indeed, phrases like “other recreational purposes” are regularly used in the application and proceedings, and Applicant’s counsel has clearly resisted being limited to a “tennis court” in argument. The
quality of the Applicant’s counsel is such that this does not seem merely to be an accidental turn of phrase and indeed the Board has expressed some anxiety and suspicion about the range of possible uses of the proposed pavilion which have not been met with reassurances that the pavilion is indeed nothing more than a covered tennis court. Moreover, the proposed roof, while high, is not quite as high as one might wish for a covered tennis court, and the architectural renderings of the pavilion do not include accoutrements such as a net. The confusion and uncertainty has recently been exacerbated by the Applicant’s neighbor, who had previously expressed concern about the application, now writing in support of the application because of the Applicant’s principal having assured her that the pavilion was “for the sole purpose of tennis play”.
This is all slightly confusing because the Applicant might well have had an easier time with its presentation had the application been clearly and expressly limited to being a tennis court – but at the same time the Applicant would arguably not have had to seek variances for the lighting and earth movement had the pavilion been presented as a multi-purpose structure rather than a tennis court. (One of the risks, of course, in attempting to regulate use through construction-based regulation and area variances is that use is transitory and structures are permanent. This is a trap into which the Briarcliff Law sometimes falls.) And frankly it is more than merely confusing, because it has left a sense of some absence of candor.
Because I would grant all the requested variances for reasons I will explain further, I need not resolve this confusion and inconsistency, which is not in my view fatal to the application, but it does point to an issue in the Law I wish to address more broadly.
Dealing first with the variance, however, I approach it in the following way.
There is no question that these are substantial variances, in the sense that the roof height variance seeks to come close to doubling the maximum permitted height (from 15’ permitted to 26’8” proposed), the lighting variance seeks lighting in the face of a flat prohibition of lighting, and the earth movement seeks permission to move more than twice as much earth as is permitted. There is also no question that this all relates to an entirely self-created difficulty. As we know, however, those are not dispositive, but simply material, considerations.
Turning to the other statutory factors, I do not believe that an undesirable change will occur in the character of the neighborhood, nor that a detriment to nearby properties will be created, nor that there will be an adverse effect or impact on the physical or environmental conditions of the neighborhood from the grant of these variances. To begin with, I consider the structure divorced from its potential uses. The pavilion is attractively designed. It is sensitively sited in a location that will not require extensive site preparation or tree removal. It avoids the many steep slopes on this property. Uncontested expert evidence was adduced that the recessed lighting would not spill over the property line, or even close to it (and the Applicant is content to have as a condition that the lighting will have
motion-sensitive switching so that the lights cannot be inadvertently left on all night). It is 370 feet from the closest neighboring house. Extensive screening, well in excess of the Village’s minimum requirements, has been proposed. It is hardly exceptional for a 60+ acre estate to have such a structure and it is not out of keeping with the estate or the neighborhood in which it sits.
More discussion at our hearings ensured around the potential uses of the pavilion, and whether those uses could transform the structure into something that might run afoul of the foregoing factors. The principal concern expressed, both by a neighbor and the board, was whether the pavilion would end up being used for entertainment as opposed to tennis, and that entertainment would be loud, late and disrupting to the peaceful character of the area. Again, the Applicant has itself encouraged this anxiety by being explicit that the pavilion might be used “for recreation and entertainment of the guests of the residents of the Property”.
Nevertheless, I believe this inquiry is too wide-ranging. Indeed, I believe that the two tennis court-specific variances are arguably not even relevant here, given that they only come into play if the structure is clearly for use as a tennis court. So, in my view, we are addressing the question of whether our consideration of a roof height variance should be influenced by what may go on under that roof. In my view, it should not, and we should address ourselves to the structural and architectural considerations presented by the application. The Applicant could lawfully and without any variance whatsoever construct a roofed, lit, open-sided practice area for heavy metal bands in the same place as the proposed pavilion as long as the roof height were 15 feet or less. The Village has numerous other ways of
regulating and controlling undesirable uses of the structure if they come to pass.
I would also comment – although I expressly do not base my decision on this point, and as demonstrated above I do not believe I need to do so – that I do view as relevant to a consideration of the foregoing factors the fact that the Applicant could subdivide the property as of right and could build in the site of the proposed pavilion a structure that is larger, higher and more illuminated than the proposed pavilion. To be clear, I do not necessarily view this point as showing that the applicant could do indirectly what cannot be done directly, but rather as an illustration that our Law, by permitting such a result, can be said to imply acceptance of the proposed architectural features.
Finally, I turn to the fifth factor, that of whether the benefit sought by the applicant can be achieved by some other method. I do not believe that this factor entitles the Board to consider the relocation the pavilion to some other part of the property (or deny a variance because the pavilion could indeed be sited somewhere else). This factor seems to me to have its greatest application to setback issues, where modest alterations in design or approach can indeed eliminate the need for a variance altogether. Here, the principal variance relates to roof height of a new structure. That variance will be needed for this structure wherever on the property it may be located. Short of requiring the Applicant to reduce the roof height, which would be tantamount to denying the variance, there is not another feasible
method for the applicant to obtain the benefit of the variance sought. I note that the Applicant has also now demonstrated that relocating the pavilion would substantially worsen the environmental impact of its construction, but I do not regard that as a relevant discussion in any event.
Thus, for the reasons provided, I would grant the variances requested with the agreed condition mentioned above concerning the lighting.
I do want also to comment more generally about the Law’s approach to “accessory structures”, which has bedeviled this board before and which I recommend to the Village Trustees for further consideration. The concept behind the Law’s current approach here seems to be two-fold: first, that each property, however large or small (and whether sub-divisible as of right or not), can have only one principal structure, and every other structure is therefore an “accessory” structure; and second, that while accessory structures face regulation on the basis of lot coverage and setback, there is no real differentiation among them based on size. This can lead to anomalous results. In large estates, we can face the situation – as we did here – where we are essentially inviting
sub-division as some rules relating to principal structures are more relaxed than as to accessory structures. On the other hand, we have looser rules concerning things like setbacks for accessory structures, originally designed, for example, to permit garages and sheds closer to the property line than houses. Those rules, however, are not size-specific, so that one could conceivably construct without any variance a very large accessory structure very close to the property line in a way not at all intended, in my view, by the Law. This application illustrates the issue. While the Applicant sought a variance for roof height, if the Applicant had been content with a very large structure with a 15 foot roof, that structure could have been located remarkably close to the property line, just as though it were a backyard shed on a small suburban lot. I believe this issue should receive further municipal consideration.
Christopher Bogart
Member
7 March 2013
Member Moraglia stated he was basing his decision on the site visit and that given the location the height did not seem to be an issue. He stated his biggest concern was the neighbors and the neighbor has withdrawn her opposition. He stated he didn’t see any adverse effects and as stated by the other members the site chosen seemed to have the least amount of disturbance. He stated he was in favor of the planting and motion detector conditions and didn’t see a difference if the structure was moved back 9 feet. He stated he would be in favor or the application.
Chairman Alenstein stated he appreciated the quality of the work that went into the application and he wished more applicants presented applications in the same manner. He stated that he was very torn about the application primarily because of the mystery surrounding it. He stated that he never understood why if they were requesting a tennis court why the applicant didn’t make every effort to make it more convenient to the main house and plumbing when that seemed like the obvious thing to do. He stated that he also did not understand why a tennis court would need a roof because tennis would not likely be played in the rain and the height of the roof made it difficult to play and deprived players of the lob shot. He stated that it became clearer that the structure had other purposes for entertainment that
were still unspecified. He stated that Mr. Marwell’s letter requested the Board consider the actual benefit sought and the endeavor to find out what exactly the benefit to the applicant was proved very frustrating. He stated he speculated that the structure’s sole purpose was not for tennis but more for parties and the neighbor Ms. Allen strongly objected to the application and then submitted an email dated February 28, 2013 stating that she and the owner spoke and he assured her that the structure’s sole use would be for tennis play and would be used occasionally after dark but never late and withdrew her objection. He stated it was a terrible concern to him that there was such conflicting information regarding the use but he agreed with Member Bogart that perhaps it wasn’t up to the Board to be concerned with the use but instead the architecture and impact on the neighbors. He stated that ultimately he came to the conclusion that
with some reluctance he would vote in favor of the application but wanted to see it moved back 9 ½ feet because it would be an additional protection afforded to the neighbors. He stated he’d like a condition requiring the planting of trees as proposed. He stated he felt they’d go a long way in protecting the other homes and stated that excessive noise would be controlled by other ordinances. He stated he was persuaded that the lighting wouldn’t be obtrusive and because of the property size and configuration he would grant the variances requested for lighting and height. He asked if the rest of the Board was okay with the screening and lighting conditions and moving it back 9 ½ feet.
Member Bogart stated he was perfectly happy with the conditions and saw no difficulty in moving it back.
Member’s Moraglia and Gioscia agreed.
The application was granted with proposed conditions and moved back 9 ½ feet.
ADJOURNMENT
Upon motion by Member Bogart, seconded by Member Gioscia the Board voted unanimously to adjourn the meeting at 9:00 p.m.
Respectfully submitted by,
Christine Dennett
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