Tarrytown NY - Zoning Board of Appeals Minutes 10/15/2013

Zoning Board of Appeals Minutes 10/15/2013

Zoning Board of Appeals

Village of Tarrytown

Regular Meeting

October 15, 2013; 8:00 p.m.

PRESENT: Chairwoman Lawrence; Members Maloney, Jolly, Brown; Counsel Shumejda; Secretary Bellantoni; Assistant Village Engineer Pennella

ABSENT: Member Weisel

APPROVAL OF THE MINTUES – September 9, 2013

Mr. Maloney moved, seconded by Mr. Jolly, and unanimously carried, that the minutes of September 9, 2013, be approved as submitted. Motion carried

CONTINUTATION OF PUBLIC HEARING–88 Main Street – Checci, Checci & Robinson

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 A PUBLIC HEARING – Cunningham/Levin – 121 Neperan Road

NEW PUBLIC HEARING – Cunningham/Levin – 121 Neperan Road

The secretary read the following public hearing notice:

PLEASE TAKE NOTICE that the Zoning Board of Appeals of the Village of Tarrytown will hold public hearings at 8:00 p.m. on Tuesday, October 15, 2013 in the Municipal Building, One Depot Plaza, Tarrytown, New York to hear and consider the re-opening of the public hearing on the existing application and a public hearing on a revised application by

Edward Levin and Camille Cunningham

121 Neperan Road

Tarrytown, NY 10591

for the following variance from the Zoning Code of the Village of Tarrytown §305-25(A) Maximum Floor Area in the R-10 Zoning district (the revised application) in order to construct an addition to the existing house with a footprint of 391.7 s.f. and a total floor area of 510.2 s.f.:

Required Existing Proposed

Total Gross Floor Area (FAR): 3,500 s.f. 4,398.7 s.f. 4,875.8 s.f.

Documents are available for inspection in the Planning and Zoning Office at Tarrytown Village Hall. The property is located at 121 Neperan Road and is shown on the Tax Maps of the Village of Tarrytown as Sheet: 1.50, Block: 22, Lot: 2 and is located in an R-10 (Residential) 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: September 26, 2013

David Steinmetz, of the Law Firm of Zarin and Steinmetz, introduced himself, his colleague David Cooper; Christina Griffin and her colleague Suzanne Levine; and Ken Nadler, a professional architect to conduct a peer review of the FAR calculations. This is their third appearance in connection with the application for their clients to create a modern family room. Because of the constraints with the basement, they chose to put a small addition on the rear side of their house. The original proposal was for an 821 s.f. addition. This would have increased their FAR from 4,396.7 s.f. to 5,203 s.f., which would require a 48.7% variance.

Counsel Shumejda asked the board to make a motion to re-open the prior public hearing, which was closed at last month’s meeting.

Mr. Maloney moved, seconded by Mr. Jolly, to reopen the public hearing. All in favor; motion carried.

Mr. Maloney moved, seconded by Mr. Jolly, that all documents submitted with the first application should apply to the second application before the board at tonight’s meeting. All in favor; motion carried.

Mr. Steinmetz said tonight they are dealing with two public hearings simultaneously; one the reopening of the original application and the second is a revised proposal which brings the FAR down to 4,875 s.f. and brings the FAR variance down to 39.3%. In order to lower the variance needed, they have eliminated the enclosed space below the proposed family room which will be used as a covered porch.

He stated that his clients feel that the original application meets the required criteria to obtain a FAR variance based on the character of the surrounding properties, the character of the neighborhood, the magnitude of the variance, the fact there is no adverse impact on the community and no adverse environmental impact. It was entirely tasteful, particularly in light of the two surrounding homes. Despite that, the applicant has come back to this board with a revised application along with more support letters which were unsolicited.

He stated that the revised addition is still well over 50’ from the Mr. Sands’ house which provides ample separation, distance and screening. We believe there is no adverse environmental impact on the neighborhood. It is essential to look at the entire neighborhood not just one neighbor. Letters from thirteen neighbors have already been submitted in support and Ms. Cunningham will read several others that have been received. It is highly unusual to have that many come forward.

According to Christine Griffin’s analysis, 111 Neperan Road is 35.2% over the allowed FAR and 131 Neperan Road is 40% over. The mathematical data shows that both neighbors on each side are over. It shows that you need to take a look at what is going on in this neighborhood as a matter of law. The applicant’s application is over but it is in similar scale to the other houses in the neighborhood, and the expansion will harmonize with the neighborhood. There will be no undesirable effect on the other houses in the neighborhood. In terms of detriment to the nearby homes, it will be 38’ from the property line and 50’ from Mr. Sands’ house. Substantiality: 40% variance is sizable but the neighbors on either side have similar variances. The cost of modifying the basement was prohibitive in comparison to new and more functional construction.

The neighbor at 131 Neperan Road sought a 16’ encroachment into the rear yard which is 45.5% deviation. A 37% FAR variance was granted to 120 Cobb Lane because it would fit into the scale. This variance is not self-created because of the FAR cap analysis by the Village.

Christina Griffin described the redesign. She handed out a revised Zoning Compliance sheet so as to prevent any confusion. She showed a photograph from the street showing the house with the addition. She stated that she set the addition to the rear because by doing so it makes it recedes and it doesn’t compete with the symmetry of the existing house. Another reason for setting the addition back is so that they don’t disturb or damage the large tree on the front property, and this tree will also hide the addition somewhat. Ms. Griffin said the sloping grade in the rear of the property will make the addition look like it is nestled in the hillside. The trees in the back of the house will be removed. This addition will have minimal impact on the view as you walk down Neperan Road.

Ms. Griffin said in response to comments made at previous meetings they made the following changes with the revised plan. They reduced the total floor area from 5,203 s.f. to 4,875 s.f. which is a 39.9% above code maximum. The house at 139 Neperan Road has a floor area of 4,900 s.f., which is 41.1% above code. The required front setback is 25’ and they now have a 39.3’ front setback. There is approximately 55’ from the neighbor’s house to the addition, so they have a nice green space. They reduced the basement from 405 s.f. to 119 s.f which is a reduction of 286 s.f. The staircase is in the kitchen which is very small and congested, so they moved the staircase into the addition. The family room has been reduced in size from 290 s.f. to 271 s.f., similar in size to the living room which is 18’ x 16’. The mud room has also been reduced. It only has a closet and a staircase for access to the basement. We have compacted as much as possible. She showed the elevations which are very similar to the original design. It will be an attractive addition and she hopes the board appreciates the changes that were made.

Camille Cunningham, owner of 121 Neperan Road, said although they are not in a historic district they are treating it like one. They are restoring the house not remodeling it. She read the attached letter from Jennifer Ross in support of the addition. Ms. Cunningham said she believes her neighbors at 131 Neperan Road don’t fully understanding what they propose to do to the house and hopes that today’s pictures will help them to understand. She also stated that only one tree was slated to come down. It is an ordinary garden variety yew and not a North Pine and now even that tree won’t need to come down.

She said she has had many unsolicited letters and statements, people even just knocking at our doors, in support of what we are doing.

Ms. Cunningham read the attached letter from Ann Hull of 111 Wilson Park Drive in support of the addition. She stated that she does not even know Ms. Hull.

She stated that there is not much opposition to their project and the only person opposed has the largest house on the street. With their addition, he will still have the largest house. She stated if there was overwhelming opposition they would be the first ones to back out. She stated again that she does not understanding Mr. and Mrs. Sands’ opposition. They are only improving their property; and when someone in the neighborhood improves their property, it improves the whole neighborhood.

Chairwoman Lawrence asked if anyone would like to speak.

Nathaniel Parish, President of Parish & Weiner Inc., 279 Knollwood Road, White Plains, New York said he was asked by Benjamin and Dana Sands to review the plans and impact issues related to this project. Mr. Steinmetz told you the good news. The question is if you grant the variance what is the impact. FAR became part of residential one-family homes because of the large "mac-masions" being built. Tarrytown added Section 305-23 to its Zoning Ordinance in 2007 to address this issue.

Mr. Parish said the major negative impact that the ZBA must consider is the width of this house which will increase from 44.9' to 61.10'; a 38% increase in the width of the house. Mr. Parish said the historic nature of the homes in the neighborhood makes this application different than others. He made reference to Mr. Krattinger of the New York State Office of Parks, Recreation and Historic Preservation letter (attached) and Ms. Sara Mascia, Executive Director of the Historical Society, Inc. letter (attached).

Mr. Parish said a 38% increase in the width changes the house looking from the road and will change the scale of the neighborhood; it is not in keeping with the architectural character of the neighborhood; it is out of scale. He said Mr. Krattinger and Ms. Mascia felt they are changing architectural features which are important in terms of designating this historic area. He said it sets precedence. Mr. Parish suggested that the board hire their own historic architect to look at the plans so that it can get an independent opinion.

Mr. Parish said in summary, the approval of the proposed expansive addition to 121 Neperan Road would:

(a) Violate the intent of the FAR regulations in that a 38% increase in width would change the scale of the house with respect to its relation to nearby residences.

(b) Have a negative impact on the architectural character of an important architectural and historic streetscape.

(c) Have a negative impact on a neighborhood that includes an historic district and a number of historic landmark buildings.

(d) Have a negative impact on 111 Neperan Road, an adjacent house which has been landmarked.

(e) Have a negative impact on 131 Neperan Road, an immediately adjacent home.

(f) Violate the long standing policy of the Village of Tarrytown and the Tarrytown Planning Board with respect to preserving the integrity of buildings and areas which have architectural and/or historic importance.

Aris Economides, 27 LeGrande Avenue, said Mr. Parish quoted two experts but neither commented on the proposal. They are only speaking about what is there; is that correct? Mr. Parish said the purpose of citing those is to provide an historical architectural setting, and whether the proposal is consistent with that setting is part of the arguments that they and I have made. Again he suggested that the board hire their own historic architect to get an independent opinion.

Ms. Brown asked why this house is not an historical site. Mr. Parish said once it is cited as a candidate to be on the register it gives it the status and that impact must be considered by your board.

Ms. Brown said the Historical Society of Tarrytown is charged with helping us to maintain our historical view. If this proposal were a real violation, you would think the Historical Society would address that, and they don't seem to have. Chairwoman Lawrence said it is not designated. There is an architectural significance but it is not historical. It is not on the national register. We have to bear that in mind. Mr. Parish said the State said it is a valid candidate as stated in Mr. Krattinger's letter. Chairwoman Lawrence said this is only his opinion. Mr. Parish said it wasn't solicited. Ms. Brown said Mr. Sands asked their opinion so he sort of solicited it.

(Mr. Parish's comments are more detailed in the attached documentation.)

Clifford Davis, 202 Mamaroneck Avenue, White Plains, attorney hired by Mr. and Mrs. Sands. He stated that he would like to focus the board on its limited jurisdiction. The applicant has come before this board for an area variance. Pursuant to New York State and Village law there is a five-part balancing test for an area variance:

Self-created hardship. Mr. Steinmetz said it is not self-created and he submits that is not true. Mr. Davis handed out a copy of New York Zoning Law and Practice by Patricia E. Salkin (copy attached) with cases included. He said what these cases make very clear is that a perspective purchaser of property takes the property subject to zoning. The applicant should have knowledge of the zoning when they purchased the property; thus, this is a self-created hardship. It is his understanding that the applicant bought the property when the current zoning was in place, so they knew what they were getting into.

Is the requested variance substantial? It is approximately 40%, which is substantial. As of right now, the applicant already has an over 26% grandfathered variance; and is now seeking an additional 510.2 s.f., which is a total of 1,480.9 s.f above the allowable 3,500 s.f., which is imposed on all the other houses in the district. This is not a balance; the applicant is tipping the scales too much in favor of expansion for a family room and a mud room. The village decided that 3,500 s.f. was a good balance. He quoted §305-23B (attached) regarding the Floor Area Ratios Cap pointing out that expansion must be in consistent scale of houses in the neighborhood. This addition will increase the width of the house over 17’, an increase in over 38%. He stated the widths of the following houses:

11 Neperan Road – 39’ in width
21 Neperan Road – 45’ in width, the largest in the neighborhood
31 Neperan Road – 43’ in width
45 Neperan Road – 43’ in width

If this board grants the variance the width of 121 will be 49.5% wider than the average of 111 and 131. The variance is large and the impact is large.

Can the benefit be achieve by an alternative feasible method. The applicant has not sought another feasible method. The house has been this way for 120 years. What happened that they now need to change it?

Ms. Brown said, didn’t your client do the same thing, buy a big house and then expand it? Mr. Davis said my client is not before this board. Ms. Brown said ok what about other houses on that block, have they not expanded. Mr. Davis said he did not think so.

Mr. Davis continued that there is no thorough explanation why the house cannot remain the same other than that they would like to expand it for their growing family. The applicant cannot buy a house that is too small for them and then cry that their house is too small. They should have bought a larger house.

Will there be an undesirable change in the neighborhood by granting the variance. As already stated by Mr. Parish, we are dealing with an historical area as set forth by local and state historical societies. The increase in width of the house vastly changes the historical house and makes it out of character with houses in the neighborhood which are less wide. The house will look much wider which will be very noticeable and will create historical inconsistence which is not what §305-23 requires.

Will the granting of the variance have adverse physical or environmental impact on the neighborhood or district? For the reasons stated above, there will be an adverse impact on the community. The board must grant the minimum variance that is necessary. Why do they need 510 s.f., can it be smaller, can they eliminate the mud room or the laundry room. He re spectfully submits that this board should hire an independent architect to determine what is feasible and what can be eliminated. If this board wants to grant a variance, it should grant a minimum variance and it cannot do that unless it has something to rely on. This variance will set precedence for other families who want more room.

Nat Parish said that precedence is important and Mr. Sands did not get a variance equal to what they are asking for. He stated that what Ben Sands did to his house did not achieve what this addition will do to the neighborhood.

Ms. Brown said but there was one.

David Steinmetz stated that his clients are not before this board crying for a variance; they are just seeking their legal rights just like the Sands came before this board seeking their legal right for a variance and received one to balloon their deck into the back yard. This is not a "MacMansion." It is a very tasteful addition to the house with no adverse changes to this neighborhood and that is why the unsolicited opinion of an historical advisory to an historical committee said otherwise. It is important when a local expert comments on something as opposed to someone from Albany who has been prompted by a neighbor to write a letter about a candidacy of potential structure. The structure is not being ballooned. This house is zoning compliant in every respect other than FAR. There is nothing unlawful, inappropriate or inconsistent with the public policy of Tarrytown based upon the width as designed. The width of the structure with the addition is compliant. Regarding hiring an outside architect, this board does not hire surveyors, architects, environmental consultants; they are capable of making decision on their own; and they have a team of experts on staff who are very capable professionals. You all know that self-created hardship is the fifth factor because it is not a dispositive factor as it is in a Use Variance. Ironically the FAR ordinance was amended the same month the Cunningham/Levins purchased the house.

In terms of substantiality, mathematically 38% is substantial but once you examine the other factors as well it is not substantial.

Lastly, Ms. Griffin went into great length at the last meeting to explain why there is not another way to achieve a family room, and we are not going to retrace those steps.

Ken Nadler, Architect, did a peer review and agrees that the numbers are irrelevant. He said he does a lot of historic work and he feels that the scale and character of the addition is totally appropriate for this house. The way the addition is situated from the street there is very little visual impact. The house at 131 Neperan Road appears to be a 4-story building because the basement appears to be about 14' high with three stories above that. In terms of architectural detail and character, he feels Ms. Griffin has done an excellent job. He stated the Ms. Griffin did the methodology according to industry standards by using grades and pictures and Google maps because she couldn't go on the properties to measure as well as whatever information they can get from municipal records.

Ms. Brown asked if something has been designated an historical site, does that mean it can't be expanded; and if a property has been expanded, does that mean it cannot be designated as historical. Mr. Nadler said no, not at all; you can take advantage of modern technology. Chairwoman Lawrence said she thought if it was on the National Registry you can't touch it. Mr. Nadler said not necessarily, it depends.

Ben Sands, 131 Neperan Road, spoke about his deck. They talked to the neighbors and showed them the plans before they came before the board; they had no problem with it. They put it behind the house so that you cannot see it from the street. It stayed in line with the house; they did not make it wider. They moved the deck back 15' for complete privacy and it cannot be seen from the street. He said Ms. Griffin's numbers have not always been correct. He handed out a spread sheet (copy attached) and stated that all of the numbers have been taken from Ms. Griffin's and Ms. Levine's worksheets and/or plans. He proceeded to explain the worksheet; they are not FAR numbers but the floor areas. Ms. Brown said they are all approximately 25%, there is symmetry. Mr. Sands said they are the current number, not including the addition. Chairwoman Lawrence asked Mr. Sands how he came up with these numbers. Mr. Sands said he used Ms. Griffin's worksheets which are different because the numbers changed as stated in an e-mail from Ms. Levine to Mr. McGarvey stating that they made some mistakes on 121 Neperan's numbers. All houses are almost equal. He said 145 and 111 enclosed their porch to include living space for their family; 121 did not do that and that is why the floor area is different.

Chairwoman Lawrence asked Mr. Sands what he is trying to say. Mr. Sands said there are three points:

Now they are the same.

Very effective in making it seem small by using words like a bump-out.
His house is not bigger then theirs.

Isaac Kommenidites, owner of 27 LeGrande Avenue, spoke about old buildings converted into something new and useful throughout the world. We have an opportunity to retain from our past and create or make it better. He is in favor of the addition which he feels will not look like an addition but as if it was always part of the house.

Suzanne Levine, with Christina Griffin Architect, said she did at lot of the numbers for this project. As they went through these meetings the number came under a lot of scrutiny so they took a fresh look and discovered that there was an error in the basement calculation of about 2 ½ square feet in their original submission because the stone foundation comes beyond the wall above; so they added that into their calculation. She explained how they came up with the floor area calculations for all of the neighbors, not using balconies, not taking porches, not taking garages, but taking what's in the code.

Mr. Sands wanted to make it clear that his numbers were not FAR numbers, but actual numbers.

Mr. Maloney moved, seconded by Ms. Brown, to close the public hearing for 121 Neperan Road. All in favor; motion carried.

Counsel Shumejda suggested that since they have closed the public hearing, if they would like him to, he will prepare a draft resolution for the next meeting. In order for him to prepare said resolution, he will need a consensus, not a vote on the application, only a consensus of how he should prepare the resolution; approval or denial. The results of the straw vote on how Counsel Shumejda should prepare the resolution for this application for the November 12, 2013 meeting is as follows:

Mr. Maloney: Approval

Ms. Lawrence: Approval

Mr. Jolly: Approval

Ms. Brown: Approval

NEW PUBLIC HEARING – The Quay – South Broadway

The secretary read the following public hearing notice:

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 Tuesday, October 15, 2013 in the Municipal Building, One Depot Plaza, Tarrytown, New York to hear and consider an application by

Quay of Tarrytown

261-299 South Broadway

Tarrytown, NY 10591

for a variance from the Zoning Code of the Village of Tarrytown §305-47B(7) Yards; setbacks, to allow the installation of a 6’ fence with posts that exceed 6’.

Documents are available for inspection in the Planning and Zoning Office at Tarrytown Village Hall. The property is located at 261-299 South Broadway and is shown on the Tax Maps of the Village of Tarrytown as Sheet: 1.100, Block: 70, Lot 3 and is located in an R 7.5 zone.

By Order of the Zoning Board of Appeals

Dale Bellantoni, Secretary

Dated: September 30, 2013

The certified mailing receipts were submitted.

The sign was posted.

Board members visited the site.

Sherry Alperstein, representative for the Quay, explained that they are proposing the installation of a 6’ fence with the same simulated stone on both sides on the north border of the property. They need a variance because the caps on the posts go beyond the 6’ about 2”.

Chairwoman Lawrence said that they will need a survey of the lot line because of the adjacent homeowners on that side of the property and it’s possible that the fence that is already there belongs to them. Mr. Maloney said some fences are right up against each other and it cannot be determined who owns what. Ms. Alperstein said it is their intention to put the new fence right up against what is there. Chairwoman Lawrence said there are two fences in some areas and three in others. Ms. Brown said you cannot determine if the fence is going on your property or not. Ms. Alperstein said the fence that is there now belongs to the Quay. Ms. Lawrence said some areas already have three fences and this new one will be the 4^th so you really want to know where your lot line is. Ms. Brown said the survey should include who the fences belong to. Mr. Pennella said it can be a condition of the building permit. They can only put up or remove a fence on their property. Ms. Alperstein said they will move it further in on their property because they don’t care about losing 2’ of property. Counsel Shumejda said in order to construct this fence you are going to need a survey so the board is suggesting that you get it now rather than later. The survey will show where the fences are, whose fences they are, and where your proposed fence will be; so it avoids confusion and it will make your building permit application go more smoothly.

Ms. Alperstein said she thought the reason they were here was because of the additional height of the cap. She understands why they want her to get a survey but they are only asking for permission to put the fence up with the 2” cap. The fence will be installed on their property. Counsel Shumejda said a reasonable condition of the variance is to know where the fence you are proposing is to be constructed. The board needs to know where it is going and how much fence you are going to install. You need a survey.

Ms. Lawrence said you might want to think about taking down any other fence that belongs to the Quay. Counsel Shumejda said you might want to make it a condition of approval that there can only be one fence there. Ms. Alperstein said but some of those fences belong to the property owners adjacent to our property. Counsel Shumejda said that is the problem; get the survey so you will know who they belong to. Ms. Alperstein said you mean we can only have one fence but the homeowners on the other side can also have a fence. Counsel Shumejda said yes. Mr. Maloney said to be sure the survey show who owns all of the fences.

The board agreed to continue the hearing until the November 12, 2013 meeting.

PUBLIC HEARING – Bartolacci – 67 Miller Avenue

The Secretary read the following Notice of Public Hearing:

Peter Bartolacci

67 Miller Avenue

Tarrytown, NY 10591

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.

Documents are available for inspection in the Planning and Zoning Office at Tarrytown Village Hall. The property is located at 67 Miller Avenue and is shown on the Tax Maps of the Village of Tarrytown as Sheet: 1.70, Block: 40, Lot 4 and is located in an R 10 zone.

By Order of the Zoning Board of Appeals

Dale Bellantoni, Secretary

Dated: October 3, 2013

The certified mailing receipts were submitted.

The sign was posted.

Board members visited the site.

Peter Bartolacci, 67 Miller Avenue, stated that he is requesting an interpretation of the Village Code §305-132, Uses Subject to Site Plan Review. Mr. Bartolacci proceeded to read the attached statement dated 10/15/13 and addressed to the Zoning Board of Appeals.

Chairwoman Lawrence said after looking at the site it does seem that you are building a new wall. She doesn’t know of the other sited cases and what they were doing.

Ms. Brown asked how high is your proposed wall? Mr. Bartolacci said it hasn’t been determined yet. We submitted a 12’ wall; Attorney Shumejda would say 14’, but it was 12’.

Chairwoman Lawrence said this matter has been before the planning board for a long time, approximately a year and a half. Mr. Bartolacci said it has been before them since January 2013. Chairwoman Lawrence asked if anytime during those planning board sessions did he ever state that he was before them in error. Mr. Bartolacci said yes.

Mr. Bartolacci said to back up and take a look at 305-132. Chairwoman Lawrence said that is what she is looking at and you are saying that your application should not have gone before the planning board in the first place. Mr. Bartolacci said that is correct. Chairwoman Lawrence said the members of the planning board are very, very knowledgable and I can’t imagine that they would take on something that they would not need to. Mr. Bartolacci said that may be the case however we have asked for explanations and again we are asking for an interpretation. Look at the law, does it say anything in there about my project needing to go to the planning board for approval. Chairwoman Lawrence asked Counsel Shumejda what projects do. Counsel Shumejda said that since the building department issued those permits that Mr. Bartolacci is referring to, we should have some input from Mr. McGarvey at the next meeting so that we can describe the comparisons. Chairwoman Lawrence agreed.

Ms. Brown said you are saying that since your project does not meet the three criteria of the zoning law 305-132 you don’t need to go before the planning board, and you are totally discounting the fact that you have a steep slope there and it should not even be considered that you have a steep slope there. Mr. Bartolacci said no, we are before the planning board for site plan review and there is an ordinance that itemizes what is required for approval by the planning board. Ms. Brown said yes, and there is another ordinance for steep slopes that has its own requirements and one of them is approval by the planning board if steep slopes are involved. Isn’t that correct? Mr. Bartolacci said it says in the course of site plan review, it shall consider steep slopes. If our site plan never should have gone before the planning board/Ms. Brown said that is silly. No one would ever consider steep slopes if the other three things were not applicable. Mr. Bartolacci said that is not true. He tried to demonstrate that in his statement. He then summarized what he initially said that there are three conditions that Section 305-132 requires and he showed how, if applied correctly, you get to steep slopes; but his application would never get there because he never should have gone before the planning board. He proceeded to read the requirements of 305-132 and 305-67 (both attached). Ms. Brown said she was involved with the steep slopes law and it does not apply entirely to new development. Mr. Bartolacci said it is not a new wall, it is a repair. Chairwoman Lawrence said that is not true; there is no wall left. We don’t know what it was made of or how high it was. Mr. Bartolacci said the planning board agreed to a certain methodology to determine the height of the wall, which he proceeded to explain. Mr. Jolly asked what step they are at with the planning board, has the process stopped with the planning board? Mr. Bartolacci said every time we go something else comes up. We are at the point where we just need to get this resolved. Mr. Jolly said they don’t want to give you an interpretation as you are asking us to do. Mr. Bartolacci said he has asked multiple times for a reason. Mr. Jolly said and they just don’t answer you. Ms. Brown said they don’t say it’s because of steep slopes, they just simply don’t answer you.

Chairwoman Lawrence doesn’t know why it keeps going on and on. Have you made any compromises or you just want to build this wall, which in my opinion is a new wall; so you just don’t want to compromise with them. Mr. Bartolacci said we are not here to discuss the project; we are here for an interpretation. Chairwoman Lawrence said that is part of it and we have to look at the whole picture. You have to take into consideration quite a bit. You can say you don’t need site plan approval; however, you are going to building a wall and you might have neighbors who might object to the wall. At some point you can’t just throw up a wall. I am going to make an interpretation. Mr. Bartolacci said the question is there was a wall there and the issue is it has just fallen into complete disrepair, the whole thing has collapsed.

Chairwoman Lawrence said they cannot make any determination until they speak with Mr. McGarvey. We need to hear what he has to say.

Counsel Shumejda responded to Mr. Jolly’s inquiry as to where they are at the planning board process and Chairwoman Lawrence’s comment about compromises. He said the applicant submitted plans for a retaining wall as follows:

On 9/5/12 20’ high on the left side 6’ high on the right side

On 4/1/13 14’ high on the left side 6’ high on the right side
On 6/12/13 12’ high on the left side 6’ high on the right side
On 8/22/13 20’ high on the left side 14’ high on the right side

The wall is 157’ long, involves 86 cy of fill, and has to be excavated 16‘ back for the geogrid.

Regarding compromise, the planning board has responded to Mr. Bartolacci on several occasions that if he came with a plan to have a two-tiered wall made of something other than masa block they will be favorably inclined to consider that. Mr. Bartolacci asked Counsel Shumejda how long is the existing three-side retaining wall. Counsel Shumejda said he took those numbers from his plans. Mr. Bartolacci said the size of the wall is exactly what it was, or what the current wall is; the only thing that will change is the height of the wall because the whole thing collapsed downhill.

Mrs. Bartolacci asked Counsel Shumejda to repeat what the height of the wall is now. Counsel Shumejda said it was a plan that was sent to Mr. McGarvey by your engineer or architect and it showed 20’ on one side and 14’ on the other. Mrs. Bartolacci showed the design presented at the last planning board meeting which will be built to the original height provided they could determine that height. They had neighbors and former neighbors speak about the height of the wall. Mr. McGarvey was to come to the property to determine the height of the original wall. He came and walked the property with a neighbor. A few days later he asked us for a drawing from our engineer, which originally he did not want to use because he wanted to be impartial. He presented it to the planning board in the September work session because we adjourned for the September meeting. Counsel Shumejda said he did not know if or when it went to the planning board; he only knows that he has a plan with that date on it.

Chairwoman Lawrence asked if anyone in the audience would like to speak.

Geraldine Baldwin, 66 Riverview Avenue, whose property is directly adjacent to 67 Miller Avenue (down slope) read the attached statement on her behalf and on behalf of her neighbors Lin Snider and Scott Voth who reside at 64 Riverview Avenue and Dina Potocki and Bruce Follmer who reside at 67 River Avenue.

She included two appendices which are attached.

Ms. Brown stated that Mr. Bartolacci is before the zoning board because he feels his project never should have gone before the planning board. We do not have a copy of the plan. We have heard a lot of different numbers for the size of the wall. The original plan was submitted in September 2012 but there have been changes and the latest plan is dated January 2013. What is the actual plan that is part of this appeal? Did you get to the January 2013 plan with the planning board?

Mr. Bartolacci gave the history of what has been going on. He stated in September of 2012 they had a plan for the wall designed which they brought to Mr. McGarvey who determined it had to go to the planning board. That original plan was a larger structure in length and height and it went down further so it was closer to his neighbor’s property. At the work session there was a lot of discussion about filling in the steep slopes. He then directed his architect to design something within the footprint of what they had and preserve what they have. He did not want to lose anymore backyard; this is the current design. During the process they learned that the backyard extended out to the wall; basically there is a huge amount of property that was gone so they then looked at another design which would restore the property to its current condition. The plan that is currently before the planning board just keeps what they have now, no more or no less. The reason for that was because he did not want to go before the planning board. He just wanted to get it done and correct a dangerous situation. I sat with Mr. McGarvey who called my engineer and we explained that we are just going to put it into the exact footprint of the existing wall. It would be higher than it is now because the wall has collapsed. We asked Mr. McGarvey if they would have to go before the planning board with this plan. Mr. McGarvey said he thought they might be ok. In April they found out they had to go to the planning board, and we have been there since.

Mr. Bartolacci said someone asked if the planning board ever addressed his concerns and he said no. At the Board of Trustees meeting Attorney Shumejda provided his opinion as to why my project needed to go to the planning board, but it related entirely to steep slopes, 305-67; but the reason I am here is for 305-132. No one has given me a reason why my project was subject to site plan review.

Mr. Bartolacci stated that he was told by the Board of Trustees that this is the appropriate course of action because I am contesting a decision by a village employee.

Chairman Lawrence said she understands but said she feels they should adjourn until the November 12, 2013 meeting in order to speak with Mr. McGarvey and to look at sites similar to this project.

Mr. Maloney moved, seconded by Ms. Lawrence, to adjourn the hearing for 67 Miller Avenue until the November 12, 2013 meeting. All in favor; motion carried.

Mr. Bartolacci, Sr. asked to speak. After seeing all of the documentation, this is pretty clear cut. The adjacent property is the only one with an objection. There isn’t a tree on the property anywhere near the backdrop of that property. In order for him to proceed, he needs a decision. The longer it goes the longer there are two 4-year olds in danger in that back yard. You saw how it is. One way or another I am going to protect my grandchildren. Chairwoman Lawrence said she understands.

ADJOURNMENT

Mr. Maloney moved, seconded by Ms. Lawrence, and unanimously carried, that the meeting be adjourned – 11:15 p.m.

Dale Bellantoni

Secretary