Zoning Board of Appeals
Village of Tarrytown
Regular Meeting
December 9, 2013 8:00 p.m.
PRESENT: Chairwoman Lawrence; Members Maloney, Jolly, Brown; Counsel Shumejda; Village Engineer McGarvey; Secretary Bellantoni
ABSENT: Member Weisel
APPROVAL OF THE MINUTES – November 12, 2013
Mr. Maloney moved, seconded by Ms. Brown, and unanimously carried, that the minutes of November 12, 2013, be approved as submitted. Motion carried.
CONTINUATION OF PUBLIC HEARING - Checci, Checci & Robinson – 88 Main Street
Application was adjourned by the Zoning Board for legal clarification.
CONTINUATION OF A PUBLIC HEARING–DCD Realty Holdings LLC (Tarrytown Honda) - 480 S. Broadway
Application was adjourned at the request of the applicant.
CONTINUATION OF PUBLIC HEARING – The Quay – South Broadway
This application has been adjourned at the request of the applicant.
CONTINUATION OF PUBLIC HEARING – Bartolacci – 67 Miller Avenue
Chairwoman Lawrence asked Mr. McGarvey to report on the 56 walls that were constructed. Mr. McGarvey said of those 56 walls, three were discussed last month; 21 Union Avenue, 116 South Broadway and 96 Main Street. The remaining 53 walls were not required to go before the Planning Board because walls still existed at the time of each application and none were in steep slopes. He stated that there is another application which is very similar to 67 Miller Avenue which he referred to the Planning Board. He said the Board should have a memo from his to that affect. Chairwoman Lawrence asked if it is the one for 65 Castle Heights Avenue. Mr. McGarvey said yes. Chairwoman Lawrence read Mr. McGarvey’s letter regarding 65 Castle Heights Avenue (copy attached).
Chairwoman Lawrence opened the meeting to the public.
Peter Bartolacci, 67 Miller Avenue, said it is his opinion that the meetings have focused on the objections of the neighbors, dimensions and construction materials of the wall, and the proceedings thus far with the Planning Board rather than the key issue of whether his application should have been referred to the Planning Board by the Building Inspector. It is his belief that his application does not required Planning Board review and approval because the Planning Board does not have jurisdiction pursuant to Village code 305-67. Mr. Bartolacci quoted the following from the public hearing notice for his application, “Appeal of the decision of the Village of Tarrytown Building Inspector to refer the application regarding 67 Miller Avenue, Tarrytown, New York to the Planning Board of the Village of Tarrytown pursuant
to the Zoning Code of the Village of Tarrytown Section 305-67. The applicant is also requesting an interpretation of Section 305-132 of the Village of Tarrytown Zoning Code.”
He believes it is incorrect to refer applications to the Planning Board based solely on §305-67, Visual character and environmentally sensitive areas (aka steep slopes law) because it states, “in the course of subdivision, site development plan, compatible use permit or any other regulatory procedure embraced by this chapter or other local laws, codes or ordinances of the Village of Tarrytown, the Planning Board shall restrict new construction and/or vegetation removal in such designated areas.” He contends that according to his interpretation this only applies when the Planning Board has jurisdiction over an application and according to §305-132 of the Village Code.
According to Mr. Shumejda at the Board of Trustees meeting on August 19, 2013, under Village Law 7-725a the Planning Board has authorization to review site plans; and this is a site plan. Mr. Bartolacci stated that §305-132A of the Village Code speaks to Village Law 7-725a and he does not feel that his application falls within the requirements of said law and therefore the Planning Board does not have jurisdiction. He said that §305-132A states three conditions whereby Planning Board review is required and none apply to his application (see §305-132A of the Village Code for conditions). He said section (1) does not apply because a retaining wall is not a building; section (2) does not apply because use is not an issue since he seeks to continue the use of his property as a backyard; and section (3) does not
apply because his property is not historic.
Mr. Bartolacci further stated that the Village argues that it is appropriate for his application to require Planning Board review and approval because it falls under the ‘any other regulatory procedure’ clause in §305-67; but according to Village Code §305-117, Planning Board, “the Planning Board is empowered to review and deliberate on site plan and subdivision applications.” Mr. Bartolacci continued by quoting from his attorney, J. David MacCartney, Jr. of Feerick Lynch MacCartney’s letter dated November 12, 2013 (copy attached), “it has been consistently held that each local agency involved in the zoning and planning process may not exceed the bounds of the power specifically delegated to it,” Moriarty v. Planning Bd. of Vill. of Sloatsburg, supra. Mr. Bartolacci
further stated, as such, the contention that a building permit falls under the ‘any other regulatory procedure’ clause of §305-67 is irrelevant; because even if it did, the Planning Board is not empowered to review and deliberate on building permit applications. He said the law is clear; the Building Inspector cannot invoke §305-67 as justification for sending my application to the Planning Board. A site plan application must be one of the criteria of §305-132 in order for it to require approval by the Planning Board. Requiring Planning Board review and approval of my application violates Village Law as well as the Village Code.
Chairwoman Lawrence said they received a letter from Mr. MacCartney of Feerick Lynch MacCartney, Attorneys at Law, dated 12/9/13, which she read into the record (letter attached); as well as a letter and addendum from Geraldine Baldwin of 66 Riverview Avenue, Tarrytown, New York which is attached to these minutes.
Chairwoman Lawrence asked if anyone else would like to speak.
Mr. Maloney asked can’t any use of land sited be construed that it is under the purview of the Planning Board? David MacCartney said that the Village of Tarrytown Zoning Code defines use in §305-5 as, The specific purpose for which land or a building is designed, arranged or intended or for which it is or may be occupied or maintained. The term “permitted use” or its equivalent shall not be deemed to include any nonconforming use. He said literally that would provide jurisdiction for the Planning Board for literally anything that happens in the Village; but that is not the intent of the section. He said everybody is using property at any particular moment but it does not mean that use is subject to site plan review. Subsection 2 of the particular section of the Tarrytown Code
speaks to an application that seeks a use or change of use, a particular use.
Ms. Brown said that Mr. Bartolacci repeatedly referred to §305-132 but failed to read §305-132A further where it states “The Planning Board shall have the authority to review and approve site plans upon those proposed lots which it deems appropriate in the interest of the general welfare and to minimize any potential adverse impact.” She asked how do you respond to that. Mr. MacCartney said that section relates only to buildings and buildings that are erected or are proposed to be erected. You can’t boast that whole section in with a general regulatory that the Planning Board can review anything that it wants to review; it’s contrary to Village Law. New York State Village Law 7-725 does not permit a Village Board to grant blanket review proceeding over any application that the
Planning Board wishes to review; it requires specific criteria by which the Planning Board will review.
Chairwoman Lawrence said you disregard that there is a steep slope; you can’t ignore that. We have the steep slope law to protect them and I haven’t heard much about protecting what is there. Mr. MacCartney said it is a legal issue and a Planning Board can only act within its jurisdiction unless the Board of Trustees enables them to do so; they can’t simply act. Chairwoman Lawrence said what you are saying is that anyone can put up a 20’ wall on a steep slope. Mr. MacCartney said no what I am saying is that the Planning Board only has jurisdiction for categories 1, 2 & 3 and they have the right and should review applications in accordance with §305-67; but that does not apply here.
Mr. Maloney and Ms. Brown asked about the authority of the Building Inspector. Mr. MacCartney said the Building Inspector has the jurisdiction and authority over building permits, not the Planning Board. Ms. Brown said if the Building Inspector says no you cannot built this wall, what happens, the applicant must comply; then maybe you will want the Planning Board to get involved. Mr. MacCartney said the Building Inspector has certain criteria he must use when reviewing a building permit; and if he says it cannot be done, the applicant has no choice but to abide by his decision.
Mr. Bartolacci asked to clarify the purpose of bringing up the 55-56 retaining wall applications spoke about earlier. It was their expectation that they would all be on steep slopes; and if you were to classify his retaining wall as a use of land under §305-132 then any retaining wall would fall under that classification. The fact the 55 retaining walls have been built in the Village since 2005 without going to the Planning Board tells me that a retaining wall either doesn’t fall under the piece of land provision in §305-132 or Mr. McGarvey failed to forward 55 applications to the Planning Board. He stated that the thinks he knows the answer to that. That was the purpose of presenting 55 walls, not that they were all in steep slopes, only three specifically. Chairwoman Lawrence said you feel your
application was singled-out as the only one to go before the Planning Board; when in fact it was not. Mr. McGarvey pointed out one in particular at 65 Castle Heights Avenue that has been referred to the Planning Board. She felt that was very clear as well as the purpose of the exercise. Mr. Bartolacci said the purpose was to say that 55 walls should have gone to the Planning Board but to show that 55 walls did not go. There were three that did: one on South Broadway, 96 Main Street and 65 Castle Heights which he considers “after-the-fact” because it came after these proceedings started. He said Whisper Hill Condominium is another retaining wall which did not go to the Planning Board. Mr. McGarvey said Whisper Hill Condominiums is residential but is considered a commercial property. The retaining walls are being replaced in the exact location and to the exact height as the existing walls. The lower wall has been
referred to the Architectural Review Board. Mr. Bartolacci disagreed that they were going in the same location; he feels they are new walls.
Ms. Brown moved, seconded by Mr. Maloney, to close the public hearing. All in favor; motion carried.
Counsel Shumejda asked the Board to give him direction for the preparation of a draft decision; not a vote on the application, just what kind of decision for:
- Appeal of the decision of the Village of Tarrytown Building Inspector to refer the application regarding 67 Miller Avenue, Tarrytown, New York to the Planning Board of the Village of Tarrytown pursuant to the Zoning Code of the Village of Tarrytown Section 305-67.
- The applicant is also requesting an interpretation of Section 305-132 of the Village of Tarrytown Zoning Code; does it apply to Mr. Bartolacci’s application.
Counsel Shumejda asked the board to take a straw vote on item #1. They should vote to have the decision drawn up to approve or disapprove the decision of the Building Inspector to refer 67 Miller Avenue’s application to the Planning Board pursuant to §305-67 of the Zoning Code. The board voted as follows:
Chairwoman Lawrence: Approve decision
Mr. Maloney: Approve decision
Mr. Jolly: Approve decision
Ms. Brown: Approve decision
Counsel Shumejda then asked the board to take a straw vote on item #2, an interpretation of Section §305-132 of the Village of Tarrytown Zoning Code. They should vote to have the decision drawn up as yes it does apply or no it does not apply. The board voted as follows:
Chairwoman Lawrence: Yes it does apply
Mr. Maloney: Yes it does apply
Mr. Jolly: Yes it does apply
Ms. Brown: Yes it does apply
Counsel Shumejda reiterated to the board members that this vote was only a vote as to how they wanted him to draw up the draft decisions. At the next meeting they will vote on both decisions. At that time they can vote as they choose, for or against each decision.
PUBLIC HEARING – Vidal – 13 Hanford Place
The Secretary read the following Notice of Public Hearing:
PLEASE TAKE NOTICE that the Zoning Board of Appeals of the Village of Tarrytown will hold a public hearing at 8:00 p.m. on Monday, December 9, 2013 in the Municipal Building, One Depot Plaza, Tarrytown, New York to hear and consider an application by
Antonio G. Vidal
13 Hanford Place
Tarrytown, NY 10591
For area variances from the Zoning Code of the Village of Tarrytown §305-62.A(2) Nonconforming buildings; lots and uses and §305-11.A Side yards, coverage to allow for the construction of a 1 story (32 SF) addition, that will permit the expansion of the existing kitchen floor area on an existing under-sized lot. The following variances are required:
- Increasing existing side yard non-conformity from 8’ required to 4.55’ proposed for a length of 4’-6”.
Documents are available for inspection in the Planning and Zoning Office at Tarrytown Village Hall. The property is located at 13 Hanford Place and is shown on the Tax Maps of the Village of Tarrytown as Sheet: 1.40, Block: 7, Lot: 22 and is located in an R 5 zone.
All interested parties are invited to attend and be heard. Access to the meeting room is available to the elderly and the handicapped. Signing is available for the hearing impaired; request must be made to the Village Clerk at least one week in advance of the meeting.
By Order of the Zoning Board of Appeals
Dale Bellantoni, Secretary
Dated: November 29, 2013
The certified mailing receipts were submitted and the sign was posted
Board members visited the property.
Sean McCarthy, Architect, said he is representing Mr. and Mrs. Antonio Vidal, the owners of a single-family home at 13 Hanford Place . They are before the Zoning Board for variances in order to make alterations to an existing storage space for the expansion of that space in order to enlarge the footprint of their kitchen. The requested variances are a result of the existing non-conforming conditions in the R-5 zone which requires a minimum lot size is 5,000 s.f. and the current lot size is 3,097 s.f.; the required width should be 50’ and the width of this property is 40’. As a result of those existing conditions, the current house, in its current location, has an existing non-conforming side yard setback of 4.55’, which we propose to extend. The storage area will be extended approximately 2’-2” on the north side with the existing width of 4.5’; and on the south side, it will be extended 5’ with a width of 4.5’. This small one-story addition will add approximately 32 s.f. to the
existing footprint of the house.
Mr. McCarthy said with this addition there will be no undesirable change in the neighborhood. The addition will be in the back of the house which will not affect any of the neighbors. Secondly this addition cannot be achieved in any other way without expanding the footprint of the house. On one side is a dining room and on the other side is the stairway for the basement. This addition of 32 s.f is not substantial and there are no adverse environmental impacts. Finally this is not a self-created hardship; the original footprint of the house has never been expanded. Because of the non-existing condition of this house, any expansion would require a variance.
Chairwoman Lawrence asked if there will still be a door from the storage area. Mr. McCarthy said no, but there will be a side door leading into the kitchen near the basement stairway.
Chairwoman Lawrence read the following environmental review from Michael Blau, Environmental Review Officer dated December 9, 2013:
I have reviewed this application to construct a one-story (32 s.f.) addition to the existing non-conforming house in order to expand the existing kitchen and determined the proposal appears to pose no significant adverse environmental impact.
Mr. Maloney moved, seconded by Ms. Lawrence, and unanimously carried, that the Board determines there will be no significant adverse environmental impact as a result of granting the requested variances for 13 Hanford Place.
Ms. Brown moved, seconded by Mr. Maloney, and unanimously carried, that the hearing be closed and the Board having arrived at the Findings required by the ordinance:
1. That no undesirable change will be produced in the character of the neighborhood nor will a detriment to nearby properties be created by the gr anting of the area variance;
2. That the benefit sought by the applicant cannot be achieved by some method, feasible for the applicant to pursue, other than an area variance;
3. That the requested area variance is not substantial;
4. That the proposed variance will not have an adverse effect or impact on the physical or environmental conditions in the neighborhood or district; and
5. That the alleged difficulty was not self-created which consideration shall be relevant to the decision of the Board of Appeals but shall not necessarily preclude the granting of the area variance.
grants the above-referenced variances for 13 Hanford Place.
ADJOURNMENT
Mr. Maloney moved, seconded by Mr. Jolly, and unanimously carried, that the meeting be adjourned – 8:45 p.m.
Dale Bellantoni
Secretary
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