VILLAGE OF RED HOOK
ZONING BOARD OF APPEALS MEETING
May 28, 2020
7:00 PM
REMOTE MEETING VIA RINGCENTRAL
Present: Acting Chair Erik Cuthell; Member Caroline Rider, Member Maarten Reilingh and
Member William Noonan
Acting Chair Erik Cuthell opened the May 28, 2020 ZBA Meeting at 7:05pm.
Acting Chair Cuthell informed tonight’s meeting is being held in accordance with NYS Executive
Order 202.1 which governs the Open Meetings Law and makes it possible for the applicant and public to continue the business of the Village. Tonight’s meeting is being held via Ringcentral and a transcript will be provided at a later date.
Acting Chair Cuthell thanked the Community, essential workers and everyone else doing their best to stay home and wear their mask. Acting Chair Cuthell thanked both Lara Hart and Chris Donohue for their efforts in making sure this meeting happens.
Acting Chair Cuthell advised that Chair George Beekman resigned from the ZBA Board after 24 years of service and commended him on all his efforts and on behalf of all Board members thanked
George Beekman for his service.
Acting Chair Cuthell went over some basic rules regarding tonight’s meeting speaking on
agenda; roll calls, motions and voting. Acting Chair Cuthell requested decorum and that everyone stick to issues at hand and advised that it is not required that the Board respond to the “chats” during tonight’s meeting.
Acting Chair Cuthell did a Roll Call for all Board Members present:
Acting Chair Cuthell – present
Member Rider – present
Member Reilingh - present
Member Noonan – present
Acting Chair Cuthell stated that we have a quorum for tonight’s meeting.
Acting Chair Cuthell made a motion to accept and approve the minutes of the ZBA dated January 23, 2020.
Roll Call:
Member Rider – yes
Member Reilingh - yes
Member Noonan – yes
All in favor. Motion approved.
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May 28, 2020 ZBA MTG.
Agenda Item #1.
Dan Wheeler 24 Prince Street Area Variance Continuation
Tax Parcel ID#6272-10-342714 Public Hearing Continuation
Present: Applicants, Dan Wheeler and Lorraine Wheeler
Nick Sperry, who resides at 28 Prince Street, Red Hook
Acting Chair Cuthell advised that applicant Dan Wheeler is seeking relief from the Village of Red Hook Zoning for an Area Variance from Section 200-9-D-(7) which requires a 15 foot side yard setback.
Acting Chair Cuthell advised that the applicant’s original application for a side yard setback of 5 feet has been amended, dated February 24, 2020, to now indicate a 4.5 foot setback and to show is now defined as an accessory building.
Acting Chair Cuthell advised this Board will continue with the public hearing.
Acting Chair Cuthell asked Applicant Dan Wheeler for any comments. Mr. Wheeler said he had nothing to say.
Acting Chair Cuthell asked Mr. Sperry for any comments. Mr. Sperry said once we get going things will be said. Mr. Sperry was advised that once the public hearing is closed he will not have the
option to publicly speak.
Mr. Sperry went over the details of the issue being applicant’s shed being built only a few feet from his fence, he contacted the building department advising this was an illegal structure being assembled; and was assured by the building department that it was legal; Mr. Sperry said he was advised to look at the bylaws, and he was shown a proposal of what the bylaws would possibly be and somehow allowed that to represent his rationale for this shed being built; once the shed was built the rear of the shed is unfinished; was within 5ft feet and over 100 square feet and an eye sore and feels it devaluates his property. Mr. Sperry said in addition there is a shed behind this one that is in total disarray with tarps and siding missing. Mrs. Wheeler said this had nothing to do with this application. Mr. Sperry said he recalled it being a condition that this shed be fixed up to look more presentable. Acting Chair Cuthell said he understood Mr. Sperry’s feelings on this but at this point the subject of this meeting is the variance request in front of this Board to reduce the side yard setback to 4.5 feet and unfortunately it is not this Board’s place to determine the finished quality of the shed. Mr. Sperry asked who would be responsible for that. Member Cuthell said this does not fall within the purview of the ZBA and this Board is here to determine the acceptability of providing a variance for the location of the building on the property. Mr. Sperry asked typically variances are applied for before construction correct. Acting Chair Cuthell said correct.
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May 28, 2020 ZBA MTG.
Acting Chair Cuthell made a motion to close the Public Hearing for the area variance application for property located at 24 Prince Street listed under Tax Parcel ID#6272-10-342714.
Roll Call:
Member Rider – yes
Member Reilingh - yes
Member Noonan – yes
All in favor. Motion approved.
Acting Chair Cuthell said the Board will now move to complete 617.20 Appendix B - SEQR.
Acting Chair Cuthell advised that the Village of Red Hook ZBA is acting as lead agency.
SEQR – Part 2
Question #1
Cuthell – no, small impact
Rider – no, small impact
Reilingh – no, small impact
Noonan – yes, moderate to large impact (by going from 15 feet to 4.5 feet)
Question #2 –
Cuthell – no, small impact
Rider – no, small impact
Reilingh – no, small impact
Noonan – no, small impact
Question #3 Cuthell – no, small impact Rider – no, small impact Reilingh – no, small impact Noonan – no, small impact Question #4 Cuthell – no, small impact Rider – no, small impact Reilingh – no, small impact Noonan – no, small impact
Question #5 Cuthell – no, small impact Rider – no, small impact Reilingh – no, small impact Noonan – no, small impact
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Question #6
Cuthell – no, small impact
Rider – no, small impact Reilingh – no, small impact Noonan – no, small impact
Question #7 Cuthell – no, small impact Rider – no, small impact Reilingh – no, small impact Noonan – no, small impact
Question #8 Cuthell – no, small impact Rider – no, small impact Reilingh – no, small impact Noonan – no, small impact
Question #9 Cuthell – no, small impact Rider – no, small impact Reilingh – no, small impact Noonan – no, small impact
Question #10
Cuthell – no, small impact
Rider – no, small impact Reilingh – no, small impact Noonan – no, small impact
Question #11 Cuthell – no, small impact Rider – no, small impact Reilingh – no, small impact Noonan – no, small impact
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May 28, 2020 ZBA MTG.
Acting Chair Cuthell advised that it was determined, based on the information and any supporting documentation that the proposed action will not result in any significant adverse environmental impacts.
Acting Chair Cuthell made a motion to accept a negative
declaration on SEQR impact.
Roll Call:
Member Rider- yes
Member Reilingh – yes
Member Noonan – yes
All in favor. Motion approved.
Acting Chair Cuthell referenced Village Law Article 7-712
Acting Chair referenced Village Zoning Section 200-9-D-(7) – side yard setback of 15 feet and that the application in question is seeking to reduce to 4.5 feet.
Acting Chair Cuthell continued with AREA VARIANCE TEST per Section 7-712-b – Tests for Granting an Area Variance.
Question #1. Undesirable Change in the Neighborhood Character:
Member Comments:
Acting Chair Cuthell: Stated his concerns about reducing side yard setback, especially where there is a fence involved to such a minimum amount of space, and has concerns going forward with the negative precedent that would be established by this consideration and feels there is potentially an undesirable change and recognizes from the neighbor’s perspective it being
Undesirable, but it does not preclude this as an item.
Member Rider: Stated she does not feel this variance would
adversely affect the character of the neighborhood but feels the granting of this variance would adversely affect the adjoining property to the West which is the property owned by the neighbor Mr. Sperry.
Member Reilingh: Concurs with Member Rider. Member Reilingh asked Acting Chair Cuthell about question #4 addressing physical or environmental conditions. Acting Chair Cuthell said he would take a semantic difference there where the word environment is considered and this Board will get to that question as it comes up.
Member Noonan: Concurs with Member Rider.
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Question #2. Alternative Cure Sought:
Member Comments:
Chair Cuthell: Stated this would be a difficult question as the structure already exists.
Member Rider: Stated that she acknowledges the difficulty of this situation but does think there are other places on this property where you could grant some sort of setback variance that would not be as much of a problem to neighbors as this particular one; so in that sense if you
say 15 feet , then that creates other difficulties, which would not be within the philosophy of
area variances which is, according to the County, if you can grant an area variance the minimum necessary with the proper conditions, then good, but feels this does not address concern of question #4, as it being very close to the fence..
Member Reilingh: Concurs with member Rider, but if this Board had to be ruled by that material fact then this Board has nothing to discuss, so feels if the building was not already in place there would be alternatives.
Member Noonan: This Board is in a difficult place with the building being in place already and does not want any undue burden to the applicant, but we have a Zoning Law that states 15 feet and feels going to 4.5 feet is a lot.
Acting Chair Cuthell: Stated had this come before us in a more appropriate moment in the process he feels this Board would not have considered such a setback and believes to be problematic.
Question #3. Substantiality:
Member Comments:
Chair Cuthell: Stated that going from 15 feet to 4.5 feet is substantial.
Member Rider: Agreed with Acting Chair Cuthell.
Member Reilingh: Agreed with Acting Chair Cuthell.
Member Noonan: Agreed with Acting Chair Cuthell.
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May 28, 2020 ZBA MTG.
Question #4. Adverse Effect or Impact:
Member Comments:
Acting Chair Cuthell: Defined the question and does not see how it does because it is a structure in a back yard and feels that this cannot have an effect on the physical or environmental conditions of the neighborhood.
Member Rider: Agreed with Acting Cuthell, but if everyone had 4.5 setbacks in the area it could pose a problem for various types of services, but feels this is aimed at the District as a whole and does not feel this does anything to it.
Acting Chair Cuthell: Agrees with Member Rider.
Member Reilingh: Agrees with Member Rider.
Member Noonan: Agrees with Member Rider.
Question #5. Not Self-Created:
Member Comments:
Chair Cuthell: Stated that this question is always up for debate, and without exception, an area variance is someone seeking to do something because they are creating from it, and in this case it is compounded by the process of permit and inspection and the determination that the variance is required really muddies the water on this so feels yes it is self-created, but is not enough to preclude granting this.
Member Rider: Stated that everything Chair Cuthell stated about the process is correct, but at the same time the self-created part of this is (….want to add on record that in the opinion of Village Counsel this is an accessory structure) and therefore its size and materials are not regulated per say and this Board could probably have to say that there is nothing specific in the Statute that precludes an accessory structure of this size. But at the same time, the structure “as built” is quite a lot larger than he plans which were submitted originally and after the site visit of the Board it is in fact the height and the bulk of the structure which creates most of the adverse impact on the neighbor, so to the extent that the applicant decided to enlarge the building after the plans were submitted, it seems to be self-created or making the situation worse.
Acting Chair Cuthell: Agrees with Member Rider, but unfortunately as this Board knows, those considerations are really not part of this Board’s review process, and it is whether or not this can stand as a single item in terms of denying a permit.
Member Reilingh: Feels yes and no. No is obvious in the fact that at some point an Official of the Village said yes to go ahead, and Mr. Wheeler is not responsible for that advice, but yes any request for a variance is usually self-created interest, so yes the applicant wanted to build there and this is of his own devising.
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Member Noonan: Agrees with both Member Rider and Member Reilingh, but stated his dilemma is the rule of the previous zoning officer and if it is extenuating or not.
Acting Chair Cuthell felt it was his understanding, after some research, that those extenuating circumstance are ultimately not a reason for this Board to consider, at this point, and is strictly the question of can this Board grant a variance for this setback and the question about whether or not it was self-created, and he cannot remember a time this Board reviewed an area variance where they did not say yes… but…. but not like divine power suddenly put it there, no it was located deliberately and in the best of all possible worlds yes they would have reviewed earlier on and sought to have it locate somewhere else in the yard with a more reasonable setback.
Member Rider: Said there are some area variances which are not self-created when the physical characteristic of the property make it…..
Acting Chair Cuthell: Said he agreed, but believes with small Village lots some of these standardized Zoning regulations probably would benefit from an update and feels this questions will continue in the future, and would suggest that in the future when this Board gets a request for an accessory building, he feels that this Board would not allow a 4.5 side yard setback.
Acting Chair Cuthell went over all the questions & answers and summed up as follows:
Questions #1. No desirable change to the neighborhood but to neighboring property a visual
undesirable change, which is a consideration.
Question #2. Board asked if the shed could be moved but felt that would be a difficult task.
Questions #3.
Board was in agreement substantial request.
Question #4. No adverse effect or impact on the physical or environmental conditions of the neighborhood
Question #4. Board agreed was self-created, but not necessarily a reason to deny.
Acting Chair Cuthell asked the Board now for any stipulation, conditions or restrictions:
Member Comments:
Member Rider: Felt that most of the adverse visual impact to the West is caused by the height of the building and that is self-created and not what was in the plans submitted to the Zoning Officer, and feels if someone said they were willing to make it shorter so it didn’t go over the fence, we would be still be a substantial request with no impact on the neighbor and then
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as they say we would be “sitting on the fence”…, because the substantial nature of the variance is still there, but feels moving it is a nontrivial job and cutting its top off is a nontrivial job, so she does feel she could propose yes, as long as you take it down so that it does not loom over the fence would be her suggestion, but knows it is not practical.
Acting Chair Cuthell: Said this was an opportunity to include some language that directs attention to some of the Board’s questions.
Member Noonan: Given the situation as it exists he does now know and is not skilled on construction issues.
Acting Chair Cuthell: This Board is restricted to the process of determining on granting a side yard setback variance this is the opportunity to try and address the concerns expressed by Mr. Sperry and as the Board went and looked at the site, he would stipulate that if this Board approves this variance that the building must get finished because in his opinion it is unfinished and needs paint or finish to give it a neater appearance and looks to have a temporary roofing on it, so he feels it needs to be finished with some considerations to the aesthetics.
Member Rider: felt there was so much room with building being “finished” but perhaps grant subject to approval by the Planning Board of the remainder of the construction. Acting Chair Cuthell said we could not go that far, and the Board needed to come to an end to this, and hoped that if the Board did approve that the Wheeler’s would pay attention to the concern of the visual impact that this has; and feels this is a precedent to allow such a small setback, and although he has concerns, would want to make sure that the very real concerns expressed by Mr. Sperry are addressed. Secretary Hart said the condition could fall on the Building
Inspector. Acting Chair Cuthell felt considering how close it is to the property line it needs to be cleaned up. Member Rider said either it has to be enforceable or this Board should not do it.
Member Noonan: Said we are talking about aesthetics and one person’s view of that is different from another. Acting Chair agreed, but said it is in a semi-finished condition and that maybe it could be because of this process and hopes that the Wheeler’s would finish it up.
Member Reilingh: Stated that would be a stipulation only in the event the variance was approved. Acting Chair Cuthell said yes. It is his intention to not play building inspector on this and if the structure that is there, if the certificate was never closed, then that would be an issue for someone else to take up, and he does not see himself in a position to deal with procedural errors of the past and contribute to what is there and looking at the request for the 4.5 feet variance and not considering there is a building in place.
Member Noonan: Asked if the Law changing the side yard setback from 15t feet to 5 feet has been enacted. Acting Chair Cuthell stated no and Zoning right now states 15 foot for a side yard setback.
Acting Chair Cuthell said after discussion this Board was in agreement to not include any stipulations, conditions or restrictions.
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Acting Chair Cuthell stated it was time to take a vote.
Acting Chair Cuthell said the Motion/Vote would be to grant a side yard setback variance from 15 feet to 4.5 feet for the structure *(located at 24 Prince Street listed under Tax Parcel ID #6272-10-342714).
ROLL CALL:
Member Rider: No
Member Reilingh: No
Member Noonan: No
Acting Chair Cuthell: Yes
Vote 3-No
1-Yes
Motion for variance is denied.
Acting Chair Cuthell asked Secretary Hart what the next step would be. Secretary Hart said she will speak with Gary Beck, Code Enforcement Officer, and advise the Board.
Acting Chair Cuthell said this ends our business and thanked everyone for attending.
Applicant Dan Wheeler asked Secretary Hart to provide this decision at earliest convenience to submit to his attorney.
Acting Chair Cuthell made a motion to close the May 28, 2020 ZBA Meeting at 8:00pm. All in favor. Motion approved to close meeting.
/S/
Lara Hart,
Secretary
Village of Red Hook ZBA