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Resolution to Reverse the Determination of the Code Enforcement Officer

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Activeformal_resolutionongoingReverse the Code Enforcement Officer's determination that the property at 26 Elizabeth Street is an illegal three-family use, finding instead that it is a pre-existing non-conforming use that predates the Village's 1955 zoning adoption.
First seen
2023-05-25
Latest event
2023-05-25
adopted
Expires
—

Resolution text

RESOLVED

  1. the determination of this Appeal is a Type II action under the State Environmental Quality Review Act pursuant to 6 NYCRR 617.5 and no further review under the Act is required
  2. the Violation dated February 1, 2023 subject of this Appeal, was factually accurate and correctly issued given the information the CEO had before him at the time of its issuance
  3. the Owner of the Property at 26 Elizabeth Street confirmed the primary structure at the Property is a three-family or three-apartment residential structure at this time
  4. having been raised by the Owner of the Property at 26 Elizabeth Street now on appeal to this body, the question of whether the use of the primary structure at the Property as a three-family or three-apartment residential structure preexisted the Village of Red Hook's adoption of Zoning in or about September 1955, or that this use has continued since then, has only been answered by evidence submitted in the form of affidavits and written public comments in support of its preexisting status
  5. the ZBA at this time has no evidence before it and has received no written or oral public comments that would suggest the representations made to it that the use of the primary structure at the Property as a three-family or three-apartment residential structure did not preexist the Village of Red Hook's adoption of Zoning in or about September 1955, or that this use has continued since then
  6. the herein appealed Violation is hereby reversed given the further evidence submitted to the Village of Red Hook Zoning Board of Appeals since the Violation was issued
  7. this holding by the Village of Red Hook Zoning Board of Appeals in its quasi-judicial capacity is a decision rendered based on the record evidence before it at the time of its rendering and only addresses the allegations of the Violation herein appealed
  8. this holding by the Village of Red Hook Zoning Board of Appeals is not an affirmation of the current use of the Property in any other respect. It is incumbent on the owner of the Property at 26 Elizabeth Street to come into and/or to maintain compliance with all other applicable requirements for three-family structures, including applicable state and local building codes and fire codes, zoning requirements, including all other portions of the Village of Red Hook Code
Show preamble — 12 WHEREAS clauses
  • WHEREAS, on or about February 1, 2023, the Code Enforcement Officer ("CEO") of the Village of Red Hook issued a notice of violation to Elizabeth 26 LLC (the "Violation"), the owner of the property at 26 Elizabeth Street in the Village of Red Hook (the "Property")
  • WHEREAS, the Property at 26 Elizabeth Street is located in the R10,000 Zoning District of the Village of Red Hook, the restrictions for which are provided for in Village of Red Hook Code section 200-9 which provides, inter alia, that one-family dwelling units are permitted principal uses, and that accessory apartments are a permitted accessory use subject to section 200-19 which states, inter alia, "one accessory apartment for a total of two dwelling units shall be permitted in a residential structure"
  • WHEREAS, the Violation alleged that the Property at 26 Elizabeth Street was in breach of Village of Red Hook Code section 200-9, as well as section 200-19, as it is an "existing illegal 3-family" and required that the third apartment be vacated within thirty days to correct the violations
  • WHEREAS, the owner of the Property at 26 Elizabeth Street timely appealed the Violation issued by the CEO within sixty days as required by Village of Red Hook Code section 200-50(D)(3) by submitting through their attorney an Application for an Interpretation on or about April 17, 2023
  • WHEREAS, the owner of the Property at 26 Elizabeth Street has not disputed that the property is in a Zoning District in which three-family or three-apartment residences are not permitted
  • WHEREAS, the owner of the Property at 26 Elizabeth Street has disputed the applicability of the Village of Red Hook's Zoning Laws, cited above, to the Property at issue here, by alleging that the CEO did not consider or adjudge whether the use of the Property as a three-family or three-apartment residence preexisted the Village's adoption of Zoning
  • WHEREAS, the owner of the Property at 26 Elizabeth Street has submitted material in support of their application, including an Affidavit from Rose E. Rider, whose immediate family members followed by herself, continuously owned the Property at issue from 1945 until selling it to the current owner and the appellant herein in or about 2021 and who attested that "the [P]roperty has been used as a 3 residential unit building continuously and uninterrupted since the early 1950's" based upon her knowledge and recollection as well as conversations with her immediate family
  • WHEREAS, the Village of Red Hook adopted Zoning in or about September of 1955
  • WHEREAS, Village of Red Hook Code section 200-42 states, "[t]he lawful use of any land or a building or structure or a part thereof existing at the time this chapter or any amendment thereto becomes effective may be continued, although such use does not conform with the provisions of this chapter" which is consistent with rulings from Courts in the State of New York that have found a constitutional right to continue a preexisting nonconforming use after the enactment of zoning restrictions on that use
  • WHEREAS, a duly noticed public hearing was opened during the regular monthly meeting of the Village of Red Hook Zoning Board of Appeals which was open to the public and held in person at the Village Hall, 7467 South Broadway, Red Hook, New York on May 25, 2023, during which all those who wished to speak were heard, and several written comments were received by the Board from members of the Public, and that this Public Hearing was subsequently closed on May 25, 2023
  • WHEREAS, 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 order, requirement, decision, interpretation or determination appealed from and shall make such order, requirement, decision, interpretation or determination as in its opinion ought to have been made in the matter by the administrative official charged with the enforcement of such local law and to that end shall have all the powers of the administrative official from whose order, requirement, decision, interpretation or determination the appeal is taken"
  • WHEREAS, the Zoning Board of Appeals has reviewed all relevant submissions, information, and documents pertaining to the Appeal

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Lifecycle (1 event)

2023-05-25adoptedvote: 4-0
Approve the Resolution to reverse the determination of the Code Enforcement Officer for Elizabeth 26 LLC at 26 Elizabeth Street.
moved by Cuthell · seconded by Reilingh
Show text snapshot for this event
Resolved
  1. the determination of this Appeal is a Type II action under the State Environmental Quality Review Act pursuant to 6 NYCRR 617.5 and no further review under the Act is required
  2. the Violation dated February 1, 2023 subject of this Appeal, was factually accurate and correctly issued given the information the CEO had before him at the time of its issuance
  3. the Owner of the Property at 26 Elizabeth Street confirmed the primary structure at the Property is a three-family or three-apartment residential structure at this time
  4. having been raised by the Owner of the Property at 26 Elizabeth Street now on appeal to this body, the question of whether the use of the primary structure at the Property as a three-family or three-apartment residential structure preexisted the Village of Red Hook's adoption of Zoning in or about September 1955, or that this use has continued since then, has only been answered by evidence submitted in the form of affidavits and written public comments in support of its preexisting status
  5. the ZBA at this time has no evidence before it and has received no written or oral public comments that would suggest the representations made to it that the use of the primary structure at the Property as a three-family or three-apartment residential structure did not preexist the Village of Red Hook's adoption of Zoning in or about September 1955, or that this use has continued since then
  6. the herein appealed Violation is hereby reversed given the further evidence submitted to the Village of Red Hook Zoning Board of Appeals since the Violation was issued
  7. this holding by the Village of Red Hook Zoning Board of Appeals in its quasi-judicial capacity is a decision rendered based on the record evidence before it at the time of its rendering and only addresses the allegations of the Violation herein appealed
  8. this holding by the Village of Red Hook Zoning Board of Appeals is not an affirmation of the current use of the Property in any other respect. It is incumbent on the owner of the Property at 26 Elizabeth Street to come into and/or to maintain compliance with all other applicable requirements for three-family structures, including applicable state and local building codes and fire codes, zoning requirements, including all other portions of the Village of Red Hook Code
Whereas
  • WHEREAS, on or about February 1, 2023, the Code Enforcement Officer ("CEO") of the Village of Red Hook issued a notice of violation to Elizabeth 26 LLC (the "Violation"), the owner of the property at 26 Elizabeth Street in the Village of Red Hook (the "Property")
  • WHEREAS, the Property at 26 Elizabeth Street is located in the R10,000 Zoning District of the Village of Red Hook, the restrictions for which are provided for in Village of Red Hook Code section 200-9 which provides, inter alia, that one-family dwelling units are permitted principal uses, and that accessory apartments are a permitted accessory use subject to section 200-19 which states, inter alia, "one accessory apartment for a total of two dwelling units shall be permitted in a residential structure"
  • WHEREAS, the Violation alleged that the Property at 26 Elizabeth Street was in breach of Village of Red Hook Code section 200-9, as well as section 200-19, as it is an "existing illegal 3-family" and required that the third apartment be vacated within thirty days to correct the violations
  • WHEREAS, the owner of the Property at 26 Elizabeth Street timely appealed the Violation issued by the CEO within sixty days as required by Village of Red Hook Code section 200-50(D)(3) by submitting through their attorney an Application for an Interpretation on or about April 17, 2023
  • WHEREAS, the owner of the Property at 26 Elizabeth Street has not disputed that the property is in a Zoning District in which three-family or three-apartment residences are not permitted
  • WHEREAS, the owner of the Property at 26 Elizabeth Street has disputed the applicability of the Village of Red Hook's Zoning Laws, cited above, to the Property at issue here, by alleging that the CEO did not consider or adjudge whether the use of the Property as a three-family or three-apartment residence preexisted the Village's adoption of Zoning
  • WHEREAS, the owner of the Property at 26 Elizabeth Street has submitted material in support of their application, including an Affidavit from Rose E. Rider, whose immediate family members followed by herself, continuously owned the Property at issue from 1945 until selling it to the current owner and the appellant herein in or about 2021 and who attested that "the [P]roperty has been used as a 3 residential unit building continuously and uninterrupted since the early 1950's" based upon her knowledge and recollection as well as conversations with her immediate family
  • WHEREAS, the Village of Red Hook adopted Zoning in or about September of 1955
  • WHEREAS, Village of Red Hook Code section 200-42 states, "[t]he lawful use of any land or a building or structure or a part thereof existing at the time this chapter or any amendment thereto becomes effective may be continued, although such use does not conform with the provisions of this chapter" which is consistent with rulings from Courts in the State of New York that have found a constitutional right to continue a preexisting nonconforming use after the enactment of zoning restrictions on that use
  • WHEREAS, a duly noticed public hearing was opened during the regular monthly meeting of the Village of Red Hook Zoning Board of Appeals which was open to the public and held in person at the Village Hall, 7467 South Broadway, Red Hook, New York on May 25, 2023, during which all those who wished to speak were heard, and several written comments were received by the Board from members of the Public, and that this Public Hearing was subsequently closed on May 25, 2023
  • WHEREAS, 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 order, requirement, decision, interpretation or determination appealed from and shall make such order, requirement, decision, interpretation or determination as in its opinion ought to have been made in the matter by the administrative official charged with the enforcement of such local law and to that end shall have all the powers of the administrative official from whose order, requirement, decision, interpretation or determination the appeal is taken"
  • WHEREAS, the Zoning Board of Appeals has reviewed all relevant submissions, information, and documents pertaining to the Appeal
Subject key: elizabeth_26_llc_zoning_appeal