RESOLUTION TO UPHOLD THE DETERMINATION OF THE CODE ENFORCEMENT OFFICER

WHEREAS

• on or about December 11, 1986, the Village of Red Hook Zoning Board of Appeals granted an area variance to allow construction within the side yard setback for a carport over an existing driveway serving a one-family dwelling in the R10,000 Zoning District (the "1986 Variance") for property identified as 28 Prince Street, tax no. 6272-10-337721 (the "Property")
• the 1986 Variance permitted a side yard setback of 1.5 feet where a 15-foot setback was required
• the applicant, Nicholas Sperry, a subsequent owner of the Property, reconstructed the carport to be closer to the property lot line and constructed a deck/porch with railings above the carport with a door installed on the second floor of the dwelling to provide a means of access to the deck/porch to be used as a living space (the "Project")
• by letter dated December 11, 2020, the Village of Red Hook Code Enforcement Officer issued a Notice of Violation and Order to Remedy to Nicholas Sperry regarding the Project, stating that the 1986 Variance did not permit the installation of a porch above the carport and that the Project impermissibly intensified the use within the side yard setback (the "Notice of Violation")
• the applicant has submitted an appeal of the Notice of Violation (the "Appeal") and has alternatively submitted an application for an area variance to allow a side yard setback of 0 feet where 15 feet is required in order to permit the Project as constructed (the "Requested Variance")
• the Project is depicted on plans entitled, "Sperry Residence," prepared by Michael R. Berta, dated December 15, 2012 ("Project Plans")
• the neighboring landowners, the Wheelers, have provided an uncertified copy of a survey depicting the deck, entitled "Lands of Wheeler" dated January 7, 2020, prepared by John H. Decker L.S., 050572 (the "Survey")
• on January 28, 2021, the Zoning Board of Appeals determined, pursuant to 6 NYCRR 617.5, that both the Appeal and the grant of the Requested Variance are Type II actions under the State Environmental Quality Review Act and that no further review under the Act is required
• a duly noticed public hearing was opened on February 25, 2021, and closed on May 27, 2021, during remote meetings held by the Zoning Board of Appeals in accordance with New York State Governor Cuomo's Executive Order 202.1 and the subsequent extensions thereof, during which all those who wished to speak were heard
• pursuant to Village Law Section 7-712-b(1), upon an appeal of a determination of the Village of Red Hook Code Enforcement Officer, the Zoning Board of Appeals may reverse or affirm, wholly or partly, or may modify the determination appealed from and shall make such determination as in its opinion ought to have been made in the matter by the Code Enforcement Officer and to that end shall have all the powers of the Code Enforcement Officer
• the Zoning Board of Appeals has reviewed all relevant submissions, information, and documents pertaining to the Appeal

RESOLVED

• that the Zoning Board of Appeals makes the following findings in accordance with Section 7-712-b of the Village Law regarding the Appeal of the Notice of Violation: (1) The application for the 1986 Variance stated that the proposed carport was 10 feet in height. Neither the written application nor the hand-drawn sketch included living space above the carport. The resolution granting the 1986 Variance does not contemplate a porch or any other construction above the carport. The sole listed purpose for the carport is to "minimize the difficulties [the Owners] encounter when they use their car in winter." The only addition to the carport discussed in the resolution is the installation of a gutter along its roof. (2) The grant of the 1986 Variance for the carport does not allow additional construction or new uses within the setback other than what was expressly presented to the Board in 1986. The construction of the porch is an intensification of the use within the side yard setback on the Property. Thus, the second-floor porch or deck is not permitted under the 1986 Variance as it is a change in use from solely that of a carport. (3) It also appears that the carport structure has been reconstructed to be located closer to the property line. The Survey shows that the corner of the carport is located at the property line. The Survey also depicts concrete footings that encroach on the Wheeler property, although it is unclear from the Survey if the footings are related to the carport. The applicant has not provided its own survey to dispute the location of the carport as shown on the Survey. (4) As the Project was not approved by the 1986 Variance, the Village Zoning Law's standard side-yard setbacks apply. Pursuant to Zoning Law § 200-9D(7), the required side yard setback for the R10,000 Zoning District is 15 feet. The Project is in violation of this restriction because it is located at the side yard property line and contains second floor living space. (5) The Zoning Board of Appeals has considered the applicant's argument that the prior Building Inspector determined that the deck and railings were permitted when it issued a building permit for the Project, as shown on building plans dated as of 2009 and 2012. (6) Even if the former Code Enforcement Officer was explicitly aware that the carport was being increased in size to be closer to the property line and would be modified to contain a deck with railings, the Code Enforcement Officer was without authority to vary the Zoning Law or modify the variance. The Code Enforcement Officer's actions were therefore ultra vires. (7) To the extent that the carport structure is closer than 1.5 feet to the property line and contains second floor living space consisting of a porch/deck, it constitutes a violation of the Zoning Law. The Notice of Violation is upheld and modified to the extent it may be inconsistent with the Zoning Board's findings herein.