Planning Board Minutes 11/09/04


A regular meeting of the Planning Board of the Village of Croton-on-Hudson, New York was held on Tuesday, November 9, 2004 in the Municipal Building.

MEMBERS PRESENT:                Ann Gallelli, Chairman
Fran Allen
Ted Brumleve

                        ABSENT:         Tom Burniston
                                        Joel Klein

                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 from the Village Board for an Amendment to Section 230-40G of the Zoning Code – “Existing Small Lots in all RA and RB Districts”

Maria Modica-Snow, Attorney, and Joanne Jackson, owner of the property on Morningside Drive, were present for this application.

Ms. Modica-Snow referred to her letter to the Village Board dated September 16, 2004 and stated that, in this letter, she is proposing an amendment to the “Small Lots” provision of the Zoning Code.

Ms. Modica-Snow gave a history of Mrs. Jackson’s property stating that in 1969, Mr. & Mrs. Jackson bought a house lot and an adjacent vacant lot on Morningside Drive.  The Jackson’s considered the vacant lot as a future investment. The Jackson’s were told by the Village Engineer at that time that the vacant lot would qualify as a building lot under the “Small Lots” provision of the Zoning Code.  The only stipulation would be that it would have to be held “individually” and “separately” from their adjoining lot. To ensure its “small lots” status, the lot with the house on it was held in both their names, and the vacant lot was held in Mr. Jackson’s name.  In the early 1990’s, the Jackson’s divorced.  To provide Mrs. Jackson with a means of retirement, Mr. Jackson transferred his ? interest in the house as well as the title to the vacant lot to Mrs. Jackson.  Both lots were put in common ownership in Mrs. Jackson’s name.  The Jackson’s attorney prepared two separate deeds for the two lots.  Mrs. Jackson’s attorney thought that, by having two separate deeds, the “small lots” requirement would be satisfied.      

In 1999, Mrs. Jackson decided to sell her two lots. However, the buyers of the lot that had the house on it were not interested in purchasing the vacant lot.  In 2002, Mrs. Jackson found a buyer for the vacant lot.  It was discovered at that time that in order to build on this lot, a Steep Slopes Hardship Permit would be required.  The prospective buyers, Timothy Puff and Michael DiVitto, went before the Village Board for a Steep Slopes Hardship Permit.  The Village Board referred the application to the Planning Board.  The Planning Board recommended that the permit be granted.  When the Steep Slopes application came back before the Village Board, it came to the attention of one of the board members that both of Mrs. Jackson’s lots had been held in Mrs. Jackson’s name since 1992.  Mrs. Jackson was told that the vacant lot had lost its “small lots” status.  Mrs. Jackson then decided to go before the Zoning Board of Appeals for variances to build a house on the substandard lot.  The application was denied.  

Ms. Modica-Snow stated that Mrs. Jackson is now “back to square one with a lot that is worth nothing.”

Ms. Modica-Snow gave a brief history of the “Small Lots” provision.  In the early 1960’s, the Zoning Law was revised, and many areas of the Village were “up-zoned.”  The “Small Lots” provision, Sec. 230-40G, was established to protect existing small lot owners’ investments. The “Small Lots” provision protected owners of those lots that had lost their conformity because of changes in the Zoning Law.  Under this statute, if the lot met the zoning and bulk requirements before the law was changed, the lot would be “grandfathered.”  In order for a property to maintain its “small lots” status, the lot would have to be owned “individually” and “separately.”

Ms. Modica-Snow stated that the current law penalizes a lot owner who, owning adjoining lots, because of a divorce or the death of a spouse, comes into common ownership with that adjoining lot.  Once the two lots are in common ownership, the adjoining lot loses its “small lots” status.

Ms. Modica-Snow recommended that a new paragraph “3(a)” be added to Sec. 230-40G as follows:  

A lot meeting the “individually and separately held” requirements of Section (1) and (2) above and therefore governed by Section 230-40G herein shall continue to be deemed individually and separately held if a) the property becomes commonly owned with an adjoining lot either due to divorce or separation of the parties or by operation of law, i.e. death of a spouse, and b) it is clearly evidenced by objective standards that the intent of the parties was to maintain the lots individually and separately.

Ms. Modica-Snow noted that item “b” in paragraph “3(a)” should help to “narrow down” that category of property owner(s) whose intent it has always been to maintain a “small lots” status.  She noted that there would not be this intent if, for example, the property owner were using the vacant lot as a yard.  Ms. Modica-Snow stated that, in Mrs. Jackson’s case, it is clear by the evidence that Mr. & Mrs. Jackson had always intended to hold their two lots “individually and separately.”

Ms. Modica-Snow stated that she does not believe that this amendment to the “Small Lots” provision would have far-reaching implications.  She also did not believe that this change in the law could be considered “spot zoning.”

Ms. Modica-Snow recommended that a new paragraph “3(b),” pertaining to the date of initial ownership of the property, should also be incorporated into the “Small Lots” provision.  She read aloud the proposed wording of paragraph “3(b).”  Ms. Modica-Snow stated that the purpose of including the language in “3(b)” would be to avoid the “date of ownership” problem that Mrs. Jackson encountered with the Steep Slopes Law, in which case she was not the original property owner.  She thought that the wording of this paragraph would resolve the issue(s) regarding “date of ownership.”

Ms. Allen asked Ms. Modica-Snow what the word “individually” implies, to which Ms. Modica-Snow stated that “individually” implies that a lot is held separately from another lot.  

Ms. Allen wanted to know how a property owner could lose his/her “small lots” status, to which Ms. Modica-Snow replied that a property owner would lose it, if he/she owns two adjoining lots in exactly the same name.   Starting on January 22, 1962, if a person owns two lots side by side, he/she would have to show separate ownership to maintain the “small lots” status.  If both lots are held in the same name, then the two lots become merged.  

Mr. Brumleve asked Ms. Modica-Snow where, in the Village Code, it says that the two lots would become merged. Where is it written in the Code that the two lots become merged if they are not owned “individually” and “separately?” Ms. Modica-Snow stated that she thinks it is in case law.  Mr. Brumleve asked if it were incorporated in the Village’s Zoning Law by inference, to which Ms. Modica-Snow said that it would be.  Mr. Brumleve said that he has a problem with the fact that this concept of “merged lots” is not clearly stated anywhere in the Code.  He thought that it needed to be clearly stated that, once a person has two individual lots that are adjacent and owned by the same entity (held in the same name), then, these two lots become a merged lot.

Chairman Gallelli stated that she thinks the intent, in the case of the Jackson property, was, indeed, to keep the two lots “individually” and “separately” owned.

Mr. Brumleve asked the Village Engineer how many other applications he thought might result from such a change in the law, to which the Village Engineer thought that the number would probably be less than ten, maybe only five.  He noted that it would be difficult to predict the exact number.

Ms. Allen asked how many existing small lots there are in the Village, which are not yet developed. The Village Engineer stated that there are quite a few people in the Village who have double lots.  In many instances, the house is built on one of these lots and, over the years, the two lots become merged.  Once merged, the “small lots” status is lost.  Ms. Allen wanted to know if someone could own two existing small lots and build a house on one of them, to which the Village Engineer said it could be done.   

The Village Engineer stated that the change being proposed is probably a fairly minor change.  He noted that, if the same set of circumstances were to occur, and all of the other standards of the “Small Lots” provision were met, then, this statute would apply.   

Mr. Brumleve stated that, from his perspective, the Applicant’s attorney and the Village Attorney would need to be “on the same page” with respect to any change to this law.

Chairman Gallelli stated that, although she feels that there is an inequity in the “Small Lots” provision of the Code, she would not want to make a change, which is too narrowly defined.  She thought that there might be other “entities,” other than people who are divorced or have lost a spouse, who could suffer from the same situation.   

Ms. Allen said that she thinks, independent from the hardship that is bringing this case forward, that this is an anomaly in the Zoning Code. She suggested that, whatever the intent was at the time the “up-zoning” took place and the law was changed, the updating of the Zoning Code at that time might not have been done properly. Ms. Allen thought that, perhaps, the next step should be to take a look at the intent of the law.  In her view, any “grandfathering” should go with the land, as is usually the case.  Ms. Allen thought that the terms “individually” and “separately” should be eliminated altogether.  The Village Engineer gave an example of what might happen in this case. A property owner could demolish any structure or discontinue any use on the second lot.  The lot, which was once merged, could then be brought back as a separate “vacant” lot.  Once brought back, it would be covered once again under the “Small Lots” provision.   Ms. Allen wanted to know why one could not say that the two lots had been treated as a “merged” lot, to which the Village Engineer replied that it is always difficult to show intent.  It would be difficult to clearly show the intent of the property owner(s).  

Chairman Gallelli asked if the wording of item “b” in the proposed new paragraph “3(a) could be changed so as to include “entities” other than people who are divorced or who have lost a spouse. She pointed out that the ownership of lots might not always be a situation involving a husband/wife.  Ms. Modica-Snow suggested that the wording could be changed to “a joint tenant with the right of survivorship.”  

Ms. Allen noted that the change in the law in the 1960’s has affected many residents of the Village. Ms. Allen stated that what seems to be wrong with this law and what troubles her is that a property owner requires the professional expertise of a good lawyer to protect his/her individual rights.  
Chairman Gallelli stated that she thinks the intent of the “Small Lots” provision was to protect the investment of the small lot owner. However, what would be difficult to know is how many people have had to “work around” this statute.  The Village Engineer said that he does not think it applies to too many properties.

Ms. Allen stated that she still thinks the “merging” issue could be solved by a statute that says that the “grandfathering” of properties goes with the land and not by ownership.  

Mr. Brumleve asked how many small lots there are in the Village today, to which the Village Engineer thought that there might be 20 small lots that would apply.  Ms. Allen wanted to know how many small lots there are in the Village, regardless of whether or not they apply to the “Small Lots” statute, to which the Village Engineer thought that there might be 50 to 100.  The Village Engineer noted that if someone were to research the deeds for these properties, the outcome would probably be that most of these lots are now merged.  He did not believe that there would be many situations where this statute would apply.

Ms. Modica-Snow referred to the proposed new paragraph “3(a).”  She gave an example of what is meant by the term, “by operation of law.”  A person owns a piece of property, and his/her parents own the property next door.  He/she inherits the piece of property from the parents, and the property becomes merged.  The “small lots” status of the property is lost.  The term “by operation of law” simply means that the situation would be something out of a person’s control.

Mr. Brumleve stated that it seems to him that the “spirit” of what Ms. Modica-Snow is asking for is properly placed. He thought that, in this particular case, the reasonable enjoyment of property ownership is being denied and should be remedied.  

Chairman Gallelli suggested that the letter of recommendation to the Village Board could say that the Planning Board believes that the proposed amendment would be consistent with the intention of the law; however, the Planning Board has some concerns about the wording.  The wording of paragraph “3(a)” seems too restrictive.  Ms. Modica-Snow suggested that the wording of paragraph “3(a)” could be changed from “…death of a spouse…” to “…a joint tenant with right of survivorship…”  

Ms. Allen referred to proposed new paragraph “3(b),” which pertains to the “date of ownership” of a property.  She pointed out that the date of ownership does not matter as long as the land itself is held separately.  She did not see the relevance of this paragraph. The Planning Board decided that, since paragraph “3(b)” does not appear to add anything to the amendment, it should be taken out.

Chairman Gallelli summarized for those present what the letter of recommendation would say.  The wording of new paragraph “3(a)” should be changed from “…death of a spouse…” to “…a joint tenant with right of survivorship…” The second paragraph “3(b)” should be stricken as it does not add anything of relevance to this amendment.  The Planning Board would want to make sure that this change would be consistent with the original intent of the “Small Lots” provision established in 1962.  The intent seems to have been to safeguard the investment of people who owned adjoining lots “individually” and “separately.”  Finally, the Planning Board would recommend that the Village Attorney review the record of the “Existing Small Lots” provision at the time of its initial adoption to ensure that the initial intent is preserved.  

Chairman Gallelli stated that Board members, Tom Burniston and Joel Klein, who were unable to attend the meeting tonight, contacted her regarding this application. Chairman Gallelli noted for the record that one of these members was supportive of the change in the law and the other was not.  

Chairman Gallelli stated that she would prepare the letter of recommendation to the Village Board in time for the next Village Board meeting.

Chairman Gallelli stated that the Advisory Board on the Visual Environment (VEB) has written a letter to the Planning Board asking for a joint meeting between the two boards.  Chairman Gallelli noted that, at the last meeting, the Planning Board decided to table this discussion about a joint meeting until tonight’s meeting; however, two Planning Board members are absent tonight.  Chairman Gallelli suggested that the Planning Board could arrange to meet with the VEB on one of the VEB meeting nights.  The VEB’s next meeting would take place on Wednesday, December 15th.  

Chairman Gallelli noted that the VEB has some suggestions for specific changes to the Signage Code.  They mention in their letter that they would want to hire a consultant in this regard.  Also, they say that they would like to meet with the Planning Board and the Chamber of Commerce again.  

Mr. Brumleve suggested that the VEB should enumerate their proposed changes to the Signage Code in writing before any consideration is given to hiring a consultant.  

Chairman Gallelli noted that the VEB would also like to know how the VEB would fit into the review process, should the Planning Board be granted architectural review authority.

Mr. Brumleve stated that he would be attending the VEB meeting tomorrow night.  He would ask the VEB if a joint meeting on December 15th would be agreeable to them.  He would suggest that they discuss the agenda items for the joint meeting.

Chairman Gallelli stated that the Village Engineer has received an inquiry regarding the Albert property on Croton Point Avenue.  He has been asked whether or not the use being proposed for the upstairs of the building – a Pilates studio (fitness center) – would require a Change of Use Permit and/or whether this use is allowed in the Light Industrial Zone where the property is located.   

The Village Engineer told the Board members that there are two office spaces upstairs in this building.  As he understands it, there would be rooms available for both group sessions and private sessions. He thought that the Pilates operation would be “by appointment only.”  The Village Engineer noted that the downstairs office of the building would be a one-person tax office.  

Chairman Gallelli pointed out to the others that, on the original site plan application for this building, the Applicant presented the “new” space as being an adjunct to Mr. Albert’s real estate office. Now, a Pilates studio is being proposed.  In the past, the Planning Board has viewed almost any change in a building as a “change of use.” In this instance, the space in question is new and has not been occupied yet.   She thought that it would be useful in this regard for the Planning Board to ask for an interpretation/clarification on what constitutes a “change of use.”

Mr. Brumleve noted that, with respect to a Pilates gym, any classes before 8:30 A.M. and after 5:00 P.M. might be problematic traffic-wise.  Ms. Allen expressed her concern about the limited parking in this area.  Mr. Brumleve added that, with respect to the parking situation, any parking on Croton Point Avenue would have to be “off limits.”

The Village Engineer noted to the Board members that the “new” building was originally approved as a “professional office” building.  A discussion ensued among those present as to what constitutes a “professional office.”  There were differing views as to whether a Pilates gym could be considered a “professional office.” The Board discussed whether it could be called a “personal service establishment.”  Chairman Gallelli noted that “personal service establishments” are not specifically identified as uses in the Light Industrial Zone.  If it were not a permitted use, then the Applicant would have to go before the Zoning Board of Appeals for a use variance.  

The Village Engineer told the Board members that he would inform the Applicant of the discussion that took place tonight. The Planning Board decided to table the discussion for the time being.  Chairman Gallelli noted that the Planning Board would need to have more time to look into the issues raised tonight.  


Approval of the minutes of the Tuesday, October 26, 2004 Planning Board meeting was adjourned until the next Planning Board meeting.


There being no further business to come before the Board, the meeting was duly adjourned at 10:22 P.M.


Sylvia Mills,