VILLAGE OF CROTON ON HUDSON, NEW YORK
PLANNING BOARD MEETING MINUTES – TUESDAY, JULY 22, 2003:
A regular meeting of the Planning Board of the Village of Croton-on-Hudson, New York was held on Tuesday, July 22, 2003 in the Municipal Building.
MEMBERS PRESENT: Ann Gallelli, Chair
ABSENT: Ted Brumleve
ALSO PRESENT: Daniel O’Connor, P.E., Village Engineer
1. Call to Order:
The meeting was called to order at 8:00 P.M. by Chairman Gallelli.
Referral to the Planning Board from the Village Board for an Amendment to the Steep Slopes Law
Chairman Gallelli stated that the first item on the agenda tonight is a referral from the Village Board for an amendment to the Steep Slopes Law. At the Village Board meeting last night, a public hearing on the proposed amendment(s) was scheduled for August 20th.
Chairman Gallelli stated that this amendment proposal affects only two sections of the law. Firstly, in Sec. 195-9A, the eligibility requirements to apply for a hardship permit would be changed. Secondly, a new section (Sec. 195-11) would be added, which provides for bonding.
Chairman Gallelli stated that, as it stands now, a property owner would have to own the property before the Steep Slopes Law came into effect in 1989 in order to be eligible to apply. The new law would eliminate such a restriction. The new law would allow the property owner to apply for a hardship permit no matter when he/she took ownership of the property. Chairman Gallelli stated that the Applicant/property owner would still have to meet all of the other steep slopes requirements.
Chairman Gallelli stated that the Village Board would like to have the Planning Board’s comments on these amendments prior to the public hearing scheduled for August 20th.
Carol Tirella of 49 Truesdale Drive was present. She stated that the reason for the current proposal to change the law is so that her neighbor, Mrs. Jackson, on Morningside Drive would be eligible to apply for a Steep Slopes Hardship Permit. Ms. Tirella expressed concern about the amendment being proposed which, she noted, would open it up to everyone to apply. She thought there might be a substantial increase in the number of applications, which, in her view, would make it difficult for the boards involved. Chairman Gallelli pointed out that, in the past, there have not been as many applications as there are now. Chairman Gallelli noted that one of the reasons for the increase is that the Village has less and less land to build on. People are thinking about building on lots that, ten years ago,
they would not have considered building on.
Chairman Gallelli stated that, since the passage of the law and the imposition of ownership at a certain date, the Village Board found itself in a position of frequently amending the law to broaden the eligibility requirements. The law was amended a number of times to accommodate, in a fair way, the people who wanted to have an opportunity to prove their case. Chairman Gallelli stated that the Village should not keep manipulating the laws for individual cases but, rather, the law should be amended in a way to allow all owners to have the ability to apply. Chairman Gallelli stated that the Village has looked at five or six other Steep Slopes laws in the County and in neighboring areas and has found that, although these laws contain stringent requirements pertaining to steep slopes, they do not
have dated eligibility restrictions. Chairman Gallelli stated that, when the law was passed in 1989, the County tried to discourage the Village from placing these eligibility requirements in the law.
Mr. Zelman questioned whether, by changing the law in this way, it would take the issue of hardship out of play, to which Chairman Gallelli noted that no other municipality calls it a “hardship.”
Ms. Tirella noted that there are quite a few people in the Village who own multiple lots. Some people are concerned that under the new law, if someone owns two adjacent lots that are held in his/her name, someone else can now buy one of the two lots and build on it. Ms. Allen noted that, under the proposed law, the situation that Ms. Tirella is describing could, indeed, arise, to which Chairman Gallelli said that it certainly could. However, it would have to be demonstrated that, given the fact that there are steep slopes on the property, the lot could still be built on.
Mr. Zelman had a question about the word “separate” when the word is used to describe lot ownership. He asked if it would be possible for someone to separately own two adjacent pieces of property. Chairman Gallelli stated that there is a section of the Village Code that deals with the circumstance of someone owning two adjacent parcels. If the same person owns these two adjacent parcels in the same name, those lots are considered to be merged.
The Village Engineer stated that he is not sure whether the term “separate” and “individual and separate” mean the same thing. He noted that under the “small lot” regulations, the term that is used is “individual and separate.” The Village Engineer stated that he did not know if the intent is to have the merger doctrine apply to the Steep Slopes Law. The merger doctrine certainly applies to the “small lot” regulations. If a parcel does not meet zoning, and the parcel fits into the “small lot” category, then, the setback requirements are (automatically) less than the setback requirements that are normally applied.
Mr. Zelman asked, “If you own two adjacent lots, can you apply for a hardship exemption, or do you have to file separate applications for each lot,” to which Chairman Gallelli responded that the person who owns the two adjacent lots would have to file twice if both lots were undeveloped and restricted by steep slopes beyond the law’s minimum requirements. The Village Engineer noted that if a developer owns two vacant lots and he/she needs Steep Slopes permits for each lot, it would be worthwhile for the developer to come before the Village Board for both lots at the same time.
Ms. Allen stated that she finds the word “merging” to be confusing when it is being used for zoning purposes and it is also being applied to describe/define developed and undeveloped parcels. She wanted to know what the definition of “merging” is. Chairman Gallelli stated that when two adjacent lots are held in exactly the same name, they are considered to be merged. The Village Engineer added that these two adjacent lots are merged for purposes of zoning. He did not know if the merger doctrine would apply to the Steep Slopes Law.
The Village Engineer stated that the idea of “merging” for purposes of a subdivision has a different connotation than the idea of “merging” for zoning purposes.
Ms Allen stated that, in the Harmon area, many buildings are on merged lots from long ago. She wanted to know if these lots would be treated any differently. Does it come down to what someone wants to do with the lot? The Village Engineer told Ms. Allen that a merged lot would probably not need a variance from the Zoning Board of Appeals. However, if the lot in question were a substandard lot, then, a variance would be required before a Building Permit could be issued. A variance would not be required if the lot falls within the “small lot” category.
Ms. Allen recalled a case in the Trails area where the property owner wanted to merge two lots. Chairman Gallelli noted that in this particular case, a reversed subdivision was required, which is a different matter. Chairman Gallelli stated that, oftentimes, the house on a merged lot is “right smack in the middle” of the property. Chairman Gallelli stated that the only time this issue of merging/merged lots would come into play is when there is an undeveloped lot that does not otherwise meet the standards of the Steep Slopes Law. In this case, the owner would not have enough area to build a house. This proposed change in the Steep Slopes Law would allow the owner of the lot to apply to the Village Board for a Steep Slopes Hardship Permit.
Mr. Zelman expressed concern that, once the Applicant for a Steep Slopes permit were to prove that he/she could meet the six conditions outlined in Sec. 195-9A of the Steep Slopes Law, there would be no grounds for a permit to ever be rejected. Chairman Gallelli noted to Mr. Zelman that, even under the current law, the Village Board/Planning Board could say to an Applicant that building on the lot looks impossible. She added that now, more than ever before, an Applicant is being forced to meet higher and higher levels of substantiality.
The Village Engineer noted to the Planning Board that there are slope percentages for building which, once exceeded, the Applicant has to go before the Village Board for a Steep Slopes Hardship Permit. However, there is no “upper limit” that, if exceeded, would prevent an Applicant from going before the Village Board. Chairman Gallelli thought that the Village Engineer’s point was a valid one. She stated that, with respect to this issue of imposing upper limits, the Village Board has expressed interest in comparing our current law to the laws of other municipalities. There has been some discussion about hiring a consultant to try to determine what this “upper limit” should be in the Village of Croton-on-Hudson. Chairman Gallelli stated that, at this juncture, the sense of the Village Board is that
people who have difficult lots should have the privilege of trying to prove their case, regardless of when and how they took ownership of the lot.
Chairman Gallelli stated that she thinks the intention of the Steep Slopes Law in the late 1980s was to provide protection of very substantial open spaces. These open spaces were all on steep slope areas. Once the Steep Slopes Law was passed, the law had to be adjusted to accommodate these smaller lots around the Village. About two years after the law was passed, the Village Board put in the language about “hardship.”
Ms. Allen stated that, the way she sees it, the problem is that everyone is equally eligible to apply under the new (proposed) law, to which Chairman Gallelli noted to Ms. Allen that a lot must be a legal lot for the owner/Applicant to apply for the hardship permit.
Chairman Gallelli stated that the law is written in a way that allows the Village Board/Planning Board to be as particular as they need to be for every single application.
Ms. Allen stated that, in the end, it would be up to the engineers and the two boards, the Village Board and the Planning Board, to make a judgement on the Steep Slopes application. She thought that the new amendment being proposed could potentially open up a lot of cases. Chairman Gallelli did not think that there would be a lot of cases. Ms. Allen stated that there would probably be more builders/developers applying for permits, to which Chairman Gallelli responded that these builders would still have to go through the Steep Slopes application process. Mr. Zelman noted that under the current law, these land developers could not apply for a Steep Slopes Hardship Permit, to which Chairman Gallelli stated that, indeed, they could, and the owners have consistently made the applications with the
builder/developer as the contract vendee.
Mr. Zelman pointed out that, under the present law, if the owner purchased the lot before the law came into effect, the owner of the property would have a hardship that could be addressed. If this element is removed, then, what the law is basically saying is that any lot might be buildable. The permitting boards are left to make a subjective judgement about what is and is not buildable. Chairman Gallelli stated the reason for the amendment(s) to the current Steep Slopes Law is that it has proven to be unworkable that the owner has to own a piece of property at a certain time, place, etc. as shown by the continued need to amend it.
Mr. Zelman was still concerned about the subjective nature of the decision-making process, to which Ms. Allen suggested that there might be a way around this problem. She noted that the Planning Board relies on the Village Engineer and the engineer for the Applicant to provide the technical/engineering expertise. She suggested that, perhaps, there could be some language added to the law that the Village Board/Planning Board has an option to hire, at the Applicant’s expense, an independent engineer to make a recommendation. Chairman Gallelli stated that this language could, indeed, be added. She noted that the Planning Board always has the option of hiring an expert in the field, if deemed necessary. Ms. Allen thought that it would be useful to make it explicit in the law.
Mr. Zelman wondered if it makes sense to do away with the hardship requirement. He noted that there is no “personal hardship to the owner” concept in the law. Chairman Gallelli noted again that no other Steep Slopes laws have these ownership requirements. The County was opposed to the Village having these requirements.
Mr. Zelman stated that removing the hardship requirement reverses the presumption that a lot is not buildable and makes it possible to “have a shot at” making it buildable. Under the old (present) law, the owner could not build. The new law opens up the possibility. Chairman Gallelli stated that the intent of the proposed amendment is to say that people who own a lot, in whatever circumstance and at whatever time, should be able to have the opportunity to demonstrate that the lot is buildable.
Ms. Allen wondered if there would be a way of making the wording of the law tighter and more specific.
Chairman Gallelli thought that Mr. Zelman’s assessment that the new law takes away the old concept of hardship was accurate.
Chairman Gallelli suggested that, in order to keep the viable parts of the law in place and have something to work with, the Planning Board could endorse the amendment(s) being proposed with a qualifier that the Village Board immediately take the next step of hiring consultants to look at the specifics of the law. The consultants would be asked to look at Steep Slopes laws in other municipalities and compare slope definitions, degree of slopes, and the amount of steep slopes on a property. Ms. Allen asked if, for example, these consultants would look at the first condition outlined in Sec. 195-9A and change the language by making it more specific. Chairman Gallelli stated that they might do that, or they might go into that part of the law that defines steep slope measurements and lists the various
restrictions, etc. The formula itself could be revised.
Ms. Allen thought that the Village should be careful about touching the formula for calculating steep slopes. She said, “We would be back to grandfathering again.” Chairman Gallelli stated that by looking into, and possibly changing the technical requirements an Applicant, from the start, would have to meet very strict standards.
Mr. Zelman referred to condition 3 in Sec. 195-9A pertaining to erosion control(s). He suggested that the language of condition 3 should be strengthened. He said that it should be made a requirement that there can be no significant erosion. Mr. Zelman thought that the language in condition 2 pertaining to adverse environmental impacts should also be stronger. It should be a requirement that the Applicant/property owner must show that there would be no adverse environmental impacts. Ms. Allen agreed with Mr. Zelman and stated that there has to be careful wording applied to each situation. She stated that she too thinks the language about erosion control and protecting the environment must be stronger so as to require more from the Applicant than just “trying to do a good job.”
Chairman Gallelli thought that the Planning Board had been thorough in its past review of steep slopes applications. She expressed her concern about the consequences of using wording in the law that is too precise. She noted that the Planning Board spent the better part of a year reviewing the steep slopes application on Morningside Drive. She thought that, when the review was completed, the Planning Board felt that it had worked out a plan that was environmentally sound. Ms. Allen noted that there were some issues that the Planning Board could not resolve e.g., managing the trees and vegetation. Chairman Gallelli reminded Ms. Allen that the Planning Board had the Applicant submit a tree survey. The Planning Board also required some replanting. Chairman Gallelli pointed out that
the backyard of the property on Morningside Drive is low and flat and not subject to erosion. She would not want something in the law that says a property owner could not cut down a tree on a flat backyard.
Mr. Zelman stated that his biggest concern is, “After we are finished with this, are there lots that the Village Board can say “no” to?” Chairman Gallelli stated that the Planning Board’s responsibility in the application process is to make sure that the Applicant/owner has a workable plan to meet all of the steep slope requirements. She noted that, in terms of reviewing the application and ultimately making a decision, the Village Board has much more discretion than the Planning Board. Mr. Zelman stated that there might be a time when the Planning Board says it has serious reservations about granting a steep slopes permit. Chairman Gallelli stated that the Planning Board has no authority to approve or disapprove an application. It only gives its recommendation to the Village Board. Chairman
Gallelli noted that there have been times when the Planning Board has outlined for the Village Board a number of recommended restrictions on properties with steep slopes. Then, at other times, Applicants have come before the Planning Board and, when they are told what they have to do, they never come back.
The Village Engineer stated that, if the Village intends to hire a consultant, an option could be to impose a pseudo-moratorium on the granting of Steep Slopes permits. He said that restrictions that are imposed could be removed later on based on the revision(s) of the technical requirements of the law. Chairman Gallelli stated that she would rather go with the option of immediately hiring a consultant to strengthen the technical aspects of the Steep Slopes Law.
Ms. Allen expressed concern about the new changes to the law, stating that she thought the purpose of the law was to protect steep slopes so that they would never be built on, to which Chairman Gallelli responded that this is not the case. The law requires that, if building takes place on steep slopes, there must be measures taken to protect the slopes. She added that there is no place in the law that says, “This is to prevent building on steep slopes.” The purpose of the law is to control the building on steep slopes.
Chairman Gallelli noted to the others that there are bulk requirements and other restrictions specifically recommended in the Village’s Comprehensive Plan, which would affect properties with steep slopes by affecting the overall buildable area.
Mr. Zelman stated that he is beginning to understand the purpose of the law. It is not to make places buildable but to control what is being built. He questioned why the word “hardship” is being used in the Steep Slopes law. He thought that the term “hardship” was irrelevant in this case. Chairman Gallelli stated that the word “hardship” usually has economic/financial connotations, etc. in zoning matters.
Mr. Zelman wondered if there would be room to tighten up the standards of the Steep Slopes Law. He referred back to condition 3 pertaining to erosion control(s). He questioned why a permit should be granted if there were any possibility at all that there might be significant erosion, even with mitigation measures taken. The Village Engineer noted that, just by having a family living on the property, there is always potential to have erosion on steep slopes. The problem is “never minimized down to zero.” Mr. Zelman stated that he thinks the standard needs to be tightened so that there could be no significant erosion.
Mr. Zelman referred to condition 2 pertaining to adverse environmental impacts. He questioned whether a lot should be built on if after mitigation measures are imposed/proposed on a piece of property, there is still concern that there might be more than a minimal adverse environmental impact on the steep slope area(s). Chairman Gallelli suggested that the language in condition 2 could be changed to read as follows: “Appropriate mitigation measures will be taken to prevent significant adverse environmental impacts of such disturbance of the steep slope areas.”
Chairman Gallelli agreed with Mr. Zelman that the wording of conditions 2 and 3 was not as strong as the other conditions (conditions 1, 4, 5 and 6).
Chairman Gallelli suggested that the Planning Board could also recommend to the Village Board that, at some time in the future, it should engage a consultant(s) to examine the Village’s Steep Slopes Law. These consultants could review the law to see if it meets the standards that the Village would find desirable and/or appropriate for analyzing building on steep slope areas. The Village Engineer stated that the Village would want these consultants to review the technical requirements of the law to make sure that the law protects to the greatest extent possible the environment, the aesthetics of the neighborhood, and any other concerns that the Village would want addressed.
The Village Engineer asked the Planning Board members if they had any problem with the new Sec. 195-11 of the Steep Slopes Law requiring performance and/or erosion control bonds, to which the members did not have a problem.
Ms. Allen said that she thinks the law should include a statement that the Village could hire an outside consultant/expert to assist in the review process at the Applicant’s expense. The hiring of this consultant could be at the discretion of the permitting board. Chairman Gallelli stated that she thinks the hiring of the consultant should be at the discretion of the Planning Board. The law could say that the Planning Board has the option to hire an expert to assist in the review, at the Applicant’s expense. Mr. Zelman pointed out that it would be helpful, for those people who want to apply for a permit, to explicitly state in the Steep Slopes Law that the Village has this option of hiring a consultant.
Chairman Gallelli stated that the proposed new section in the law on bonding would allow the Village Board to impose a performance and/or erosion control bond.
Ms. Tirella stated that the only concern she would have about the bonding is what might happen “12 months down the road” after the bond is pulled. She wanted to know what the specifications about bonding are for other communities. She said that she is concerned about the safety of the neighbors. Chairman Gallelli stated that the Village has imposed bonding on Applicants in the past. The Village Engineer sets the bond amount based on what it would cost to remedy a given problem/situation. She told Ms. Tirella that the bond is in place until the work for which the Applicant is being bonded is concluded. Mr. Zelman noted that it may not be practical, financially-speaking, to ask a property owner to have a bond in place for two years. He added that he thought the protection offered by
a bond has to be in the professional assessment of how something works and if it has been built properly.
Chairman Gallelli told the Planning Board members that she would prepare the letter to the Village Board incorporating the Planning Board’s recommendations discussed tonight.
Hudson National Golf Course – Additional Amendments to the Environmental Management Plan (EMP), as per Stuart Cohen’s Letter of 7/10/03
Chairman Gallelli stated that the most recent amendments to the EMP, as outlined in Dr. Cohen’s letter to the Planning Board of July 10, 2003, pertain to 1) a correction to the EMP and 2) an additional amendment, respectively.
Chairman Gallelli stated that Stephen Reid of Environmental & Turf Services (ETS) came across an error of omission when he was preparing the summary list. He discovered that the chemical, Paclobutrazol, should have been included in the EMP’s summary list of allowed pesticides, and it was not included.
Chairman Gallelli stated that the other (additional) amendment has to do with a concern about Response Thresholds (RTs) for phosphorus. A recent analysis indicated that phosphorus concentrations are generally increasing in certain areas (one of the sampling points and two monitoring wells). Dr. Cohen is suggesting that, to be on the safe side, the RT for phosphorus should be lowered.
Chairman Gallelli said that she was glad that these amendments are being introduced now so that they can be inserted into the EMP at the same time as the other recently approved amendments. It would have been more difficult to insert them later on. Ms. Allen suggested that the Planning Board should hold off on physically making the changes to the EMP. She told the other members that ETS has just provided the Village with their 2000-2001 Annual Report, which she has recently looked at. ETS has noticed certain trends. Furthermore, the Planning Board is planning a field trip to the golf course to look at on-site surface water sampling points SW-3A and SW-5. Something may result from this site visit that would impact the EMP. She thought that the Planning Board might want to wait
before physically making these changes. Chairman Gallelli stated that ETS is planning on doing a summary of trends. She thought that the Planning Board could proceed with making the changes but, at the same time, leave it open in case things need to be added.
Chairman Gallelli asked the Planning Board members if they agreed with the two additional amendments being proposed, as outlined in Dr. Cohen’s letter to the Planning Board dated July 10, 2003, to which they all agreed.
Ms. Allen noted to the other members that ETS needs to get their next report in. She would like to have an opportunity to see the 2001-2002 Annual Report before the site visit in August.
Chairman Gallelli told the others that Dr. Cohen has given the Planning Board Secretary some possible dates in August for the annual audit at the golf course. The Planning Board Secretary read to the Planning Board the list of dates. It was decided that Thursday, August 14th would probably be the best time for everyone.
Chairman Gallelli stated that the Advisory Board on the Visual Environment (VEB) has requested that they be provided with the draft Planning Board minutes so as to be “in the loop,” in a more timely fashion, on issues before the Planning Board. Chairman Gallelli noted that Planning Board minutes are normally not distributed until the Planning Board has reviewed the minutes and made their changes. The current policy is that minutes can only be distributed once they are reviewed and adopted. It was the consensus of the Board members that the current policy being followed on board minutes should be continued. The Planning Board members concurred that the VEB should, indeed, be kept up to date; but, this could (also) be accomplished through the Planning Board’s liaison to
The Village Engineer brought up the issue, discussed at the last Planning Board meeting, of the Ackerman/Morgan lot line adjustment. He told the Board members that it appears, rather than a simple lot line change, that Ackerman and Morgan might have an illegal subdivision. The filing took place last August. Chairman Gallelli recalled that their goal was to keep the property on Batten Road from being subdivided into a number of lots, which Chairman Gallelli thought the Planning Board members supported. However, the reconfiguration of lots was apparently done without the proper procedures being followed and now, the problem of the illegal subdivision of land has come up. Chairman Gallelli stated that the Village Attorney, Seymour Waldman, would have to give the Planning
Board some guidance on how to proceed. Obviously, the issue of the illegal subdivision would have to be resolved. The Village Engineer noted to the Board members that another problem that has arisen is how to assess the property(ies) for tax purposes. Chairman Gallelli stated that the attorney for Ackerman/Morgan should be in touch with the Village Attorney on how best to proceed and, then, advise his clients accordingly.
The Village Engineer stated that Lisa Nardozzi of Happy Tots wants to open up a day care center in the building on Niles Road and NYS Route 129 where General Splice Corporation is presently located. The building is located in a RA-25 Zoning District. Day care centers are allowed but certain requirements would have to be met. At the present time, General Splice Corporation has a use variance to operate a manufacturing facility on the subject property, which is in a residential district.
Chairman Gallelli told the others that she, personally, would have concerns about the traffic situation. People would be dropping the children off in the morning and picking them up after work. Both the right and left turn onto Route 129 is difficult to make. She would be concerned about traffic safety issues.
Chairman Gallelli suggested that the Applicant, Ms. Nardozzi, could come to the Planning Board for a preliminary discussion on her day care center proposal. She noted to the others that a day care center would not be allowed in the RA-25 zone except as an accessory use. A full day care facility is only allowed in the C-2 district.
Chairman Gallelli recalled that, at one time, there were big empty barrels that had been put on the empty lot between General Splice Corporation and the Croton River. She noted that Dr. Dan Salzberg had said at the time that these barrels should be removed. No one knew what had been stored in these barrels. The barrels themselves were not on the General Splice property. Chairman Gallelli noted that if there were anything toxic stored in these barrels, the grounds of the surrounding area would have to be tested.
Chairman Gallelli stated that, due to the proximity of this property to the Croton River, the Applicant would also have to go before the Water Control Commission (WCC) for a Wetlands Activity Permit.
The Village Engineer stated that he has met recently with representatives from the Croton Medical Center. The Medical Center has had a new set of plans prepared for the retaining wall in the rear of the property. They have hired a company to do borings. They will come back before the Planning Board with an application once they are completely ready with their proposal. The Village Engineer stated that, in the new proposal, there might be some additional parking spots added, perhaps as many as six spots.
Chairman Gallelli told the other members that the Village Board is moving ahead with their proposal for a moratorium on building in the commercial gateway sections of the Village. The Village Board announced the public hearing date at its meeting last night.
APPROVAL OF MINUTES:
The minutes of the Tuesday, June 3, 2003 Planning Board meeting were approved on a motion by Ms. Allen, seconded by Chairman Gallelli and carried by a vote of 3 to 0.
The minutes of the Tuesday, June 24, 2003 Planning Board meeting were approved, as amended, on a motion by Mr. Zelman, seconded by Ms. Allen and carried by a vote of 3 to 0.
The minutes of the Tuesday, July 1, 2003 Planning Board meeting were approved, as amended, on a motion by Ms. Allen, seconded by Mr. Zelman and carried by a vote of 3 to 0.
There being no further business to come before the Board, the meeting was duly adjourned at 10:13 P.M.