Planning Board Minutes 11/10/2008



A regular meeting of the Planning Board of the Village of Croton-on-Hudson, New York was held on Monday, November 10, 2008 in the Municipal Building.

        MEMBERS PRESENT:        Chris Kehoe, Chairman
                                        Fran Allen
                                        Vincent Andrews

        ABSENT:                 Mark Aarons
                                        Robert Luntz

        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 Kehoe.


  • Nextel of New York, Inc., New Cingular Wireless PCS, LLC and Omnipoint Communications, Inc. – Application for a Site Plan Approval for the Collocation of a Personal Wireless Services Facility at the DPW Facility, Veteran’s Plaza
Robert Gaudioso, Esq. of Snyder & Snyder, LLP was present to represent the Applicant.  

Chairman Kehoe reviewed for those present the history of the cell tower application, stating that the Village Board had referred this application to the Planning Board for a recommendation on the granting of a Special Permit back in 2006.  At the last meeting on this application the Planning Board voted to recommend to the Village Board that they grant the Applicant the Special Permit.  The public hearing took place on November 3, 2008 at which time the Special Permit was granted.  The Applicant is back before the Planning Board tonight for a Site Plan approval.  Chairman Kehoe noted that a public hearing is also required for the Site Plan approval.

Chairman Kehoe said that he, personally, had nothing to add to the discussions that have already taken place on this application.  He asked if the other board members had any comments, to which there were none.

Chairman Kehoe entertained a motion to schedule the public hearing on this application for the next regularly scheduled Planning Board meeting to be held on Tuesday, November 25th.  The motion was made by Ms. Allen, seconded by Mr. Andrews and carried by a vote of 3 to 0.

  • Wasim Faruqi – 3 Stephanie Lane – (Sec. 67.11 Blk. 1 Lot 13) – Application for a Modification to the Building Envelope for the Construction of a Retaining Wall
Victoria Kulinich and Mark McCarthy of Dominick Salvati & Son Architects were present for this application.

Ms. Kulinich stated that the Applicant is asking for a modification to the building envelope to construct a new retaining wall on the northwest side of the property.  The wall, as it is being proposed, would fall partially outside of the building envelope.  Ms. Kulinich noted that most of the new wall would be situated inside the envelope.

Chairman Kehoe referred to the photographs of the property submitted by the Applicant and noted that there is no photograph taken directly in front of the residence.  Ms. Kulinich told Chairman Kehoe that the first photograph shows a portion of the front of the house.  There is no photograph taken directly from the front. Ms. Kulinich came forward to the dais to explain to the board members what each photograph represented and from which direction on the Applicant’s property the photograph was taken.

Ms. Kulinich noted to the board members that constructing this retaining wall would make it possible for the homeowner to increase the size of the lawn area around his house.  Mr. McCarthy pointed out that, at present, the area, which would become more lawn, is just a steep hill that slopes down from the house.  Ms. Allen asked if the purpose of the project would be just to increase the lawn or if they also intend to keep some of the area landscaped, to which Mr. McCarthy replied that their intention would be to do both.  They would like to keep some areas as landscaping and provide more lawn space.  Now, the slope in question is just rubble and dirt.  

Chairman Kehoe said that he did not see from the plan(s) submitted where the building envelope is located, to which Ms. Kulinich referred the Planning Board to plan #A-2 and pointed out the line designated as the “Building Envelope Outline.”  Chairman Kehoe noted to Ms. Kulinich that the building envelope line would also have to be shown on the plot plan.  The Village Engineer referred to the “Building Envelope Outline” being shown on plan #A-2 and said that this line is not the building envelope for the property. The building envelope is not being shown. The Village Engineer said that the line being shown is actually the “Limit of Disturbance” line.

The Village Engineer stated that the keystone retaining wall being proposed is 90’ x 40’.  The majority of the construction is located inside the building envelope.  The Village Engineer referred the Planning Board to the original site plan for this lot (Arrowcrest Subdivision – Lot #6), and he pointed to the building envelope as shown. The Village Engineer transposed the building envelope line onto the plan submitted by the Applicant and indicated to those present that portion of the new wall that would be located outside the envelope.  Mr. McCarthy told the board members that, when his firm was hired to do the architectural drawings for this project, the site conditions on the property were as they are being shown on the photographs submitted.

The Village Engineer noted that the Certificate of Occupancy for the house was issued in 1999, to which Chairman Kehoe said that it would appear that the land disturbance being shown in the photographs was not at all associated with the construction of the house.  Chairman Kehoe asked if the neighbor situated downhill from this property had ever complained to the Village about the construction taking place in the back, to which the Village Engineer said that it is his recollection that he spoke to the owner or neighbor in the summertime.  Either the Code Enforcement Officer or the Assistant Building Inspector visited the site and told the contractor to stop the excavation work for the retaining wall, which was then taking place.  The Village Engineer noted that nothing was actually built.  Just the soil was disturbed.  Ms. Kulinich said that her architectural firm was hired to do the design work for the retaining wall in August of this year.

The Village Engineer asked the Applicant what the area or square footage of the steep slopes disturbance is, to which Ms. Kulinich said 5,211 square feet.  The Village Engineer explained to Ms. Kulinich how to interpret the new steep slope regulations.  He used as an example how to determine the steep slopes disturbance on a much smaller lot stating that, if this were a small lot consisting of 5,000 square feet and 25% of the lot area were being disturbed, a steep slope permit would be required. The lot in question is a much larger lot; however, there are other limitations to be considered.  In the “Extremely Steep Slope” category, only 4,356 square feet of land could be disturbed without requiring a permit.  The area being disturbed in this case is 5,211 square feet; hence, a permit would be required.  The Village Engineer told the Applicant that this number (5,211) would have to be reduced to 4,356 or less for a permit not to be required.   

Chairman Kehoe asked where on the photograph showing the disturbed steep slope area the retaining wall would be located, to which Mr. McCarthy replied that it would be where the rope is being shown.  Chairman Kehoe said that it would seem to him from the photographs that have been submitted that, not only is the Applicant seeking an extension of the building envelope but also, this Applicant is before the Planning Board for the remediation/mitigation of “all of this non-permitted disturbance.”  Chairman Kehoe asked the Applicant why, if only a small portion of the wall is outside the envelope, they would not just pull it back inside, to which Ms. Kulinich replied that the homeowner was trying to maximize his lawn area.

Ms. Allen noted to the Applicant that it is not an “as of right” to do what they (the Applicant) are proposing to do on this lot.  When the Planning Board reviewed this development (subdivision) proposal, the Planning Board spent a considerable amount of time on the placement of the houses.  The building envelope lines were established taking into careful consideration all of the environmental impact(s).  Ms. Allen said that the Planning Board has faced significant issues with one house after another at the Arrowcrest Subdivision.  Ms. Allen said that in this particular case involving the extension of the lawn area, she, personally, would see no reason why anything should be changed from what was originally decided upon when the subdivision was approved. Ms. Kulinich questioned what should be done about the disturbance that has already taken place, to which Ms. Allen said that she would think that mitigation measures should be taken to restore the disturbed area(s). In her (Ms. Allen’s) view, this project might more aptly be considered a restoration project versus a modification to the building envelope.

Mr. McCarthy asked the Village Engineer if there was a record being kept at the Village that this excavation work was actually stopped, to which the Village Engineer said that he would check into it and let him know.

Ms. Allen said that besides the architectural firm, she would think that the owner of the property should be involved with any discussions on this project.  She thought that the homeowner should be asked to come before the board.

The Village Engineer told the Applicant that building envelopes were established as part of this “cluster” subdivision to limit where accessory structures could be placed on the property.  In this particular case, not just the building envelope line but the steep slopes on the property are being impacted.  The Village Engineer said that the Applicant’s plans should be revised to clearly show the building envelope line that was approved with the original subdivision. The Village Engineer suggested to the Applicant that they should try to bring the wall in so that it is completely inside the envelope.

Mr. Andrews referred to the photograph showing a curved stone retaining wall on the neighboring property and said that the proposal for a wall on the Applicant’s property might lend itself better to a similar (curved) design rather than the more unnatural (angular) design presently being proposed.  Mr. Andrews said that changing the design might also make it possible to stay within the envelope.

Ms. Allen asked the Applicant’s representatives if they knew what initiated this action.  She asked if there was a problem with the slope as it existed, to which Ms. Kulinich replied that when they were hired for the job, the condition of the slope was as it is being shown in the photographs.  They were told that the homeowner wanted to develop it (the slope) so as to create more lawn space.  The Village Engineer suggested that he could print out an aerial photograph of the property, which would give an indication of what the slope looked like prior to its being disturbed.

Chairman Kehoe said that even if the wall were pulled back so that it does not extend beyond the envelope, he would still want the Village Engineer to render an opinion to the Planning Board on how this steep slope disturbance should be handled.  The Village Engineer pointed out that land disturbance per se, such as what has taken place here, would not be considered “a disturbance” because nothing was actually built.

Ms. Allen said that she would not want to encourage any future activity on this site until there is a clearer understanding from the homeowner(s) what the intent of this project is.  She would like to know more about the history behind the project. Mr. Andrews added that the Planning Board would also want to know why the land “happens to be in this poor condition.”  Chairman Kehoe referred to an aerial photograph of the house and stated that it would appear from this photograph that there is already plenty of lawn area. The Planning Board would want to know from the homeowner if, perhaps, there were another project being conceived of for a future time, e.g., putting in a swimming pool.  Mr. McCarthy asked if a letter from the homeowner would suffice or if the Planning Board would want the homeowner to come before the board, to which Ms. Allen said that she would think it would be better to have the homeowner come before the board.

The Village Engineer told the Applicant that they should try to quantify the different slope percentages to determine if a steep slope permit is required. The Village Engineer told the Applicant that the slope needs to be restored.  If they do not require a steep slope permit and there are no violations, then plantings would have to be installed to stop erosion.  If, on the other hand, there is a violation of the steep slope law and a permit is required, then the Village would have to be more involved with what the remediation of the slope area(s) would be.  The Village Engineer said that he would have to check to see if the homeowner is in violation of the New York State fill and excavation law.  Chairman Kehoe expressed concern about the extent of the disturbance and said that he would not want to think that this type of activity would be well within Village law.  He would think that, at the very least, this activity would be in violation of soil and erosion control laws.

Chairman Kehoe noted that if the Applicant were to come to the next meeting with their attorney, then the Planning Board should ask to have the Village Attorney present.

The Village Engineer said that if there were more than 5,000 square feet of grade disturbance, then an excavation and fill permit would be required.   Ms. Allen said that the Applicant would have to hire an engineer to do the necessary measurements.  Chairman Kehoe asked if a silt fence should be put up at the bottom of the steep slope, to which the Village Engineer replied that a silt fence should be installed and some temporary seeding put in.  A surveyor should go out to the site to take measurements of the slopes.  

Ms. Allen asked if the Village needs to involve an environmental consultant to be certain that the seeding has been put in properly and that the silt fence is installed properly, to which the Village Engineer suggested that he could have the Code Enforcement Officer or the Assistant Building Inspector go out to the site to inspect this work.  Ms. Allen suggested that a time limit should be set for this activity to take place.  She would think that the silt fence and seeding should be completed by Friday of this week, to which the Village Engineer said that this Friday would seem reasonable to him.

Mr. McCarthy told the Planning Board that Ms. Kulinich and he would review with the homeowner the matters that were discussed tonight and follow up with the Village Engineer’s office.  

  • 157 Maple Street, LLC (Daniel Merritts) – (Sec. 68.17 Blk. 4 Lot 41) – Application for a Preliminary Subdivision Approval
Steven de Young, P.C., attorney for the Applicant, and Daniel Merritts of 157 Maple Street, LLC were present for this application.

Mr. de Young referred to his letter to the Planning Board dated October 29, 2008, in which he describes to the Planning Board the Applicant’s “cluster” subdivision proposal.  Mr. de Young said that there presently exists a two-family house on the subject parcel.  The Applicant’s desire is to create two separate parcels out of the one parcel leaving the existing structure intact but making each side a one-family dwelling.  Mr. de Young noted that the parcel in question is about four times the size required in the RB Zoning District in which located.  Mr. de Young said that in order to move forward with the project as proposed, the Planning Board would have to consider a “cluster” as opposed to a conventional subdivision. The Planning Board had approved a similar application in 1985. At that time the board approved the creation of a “cluster” subdivision consisting of four one-family dwellings in two buildings with two single-family dwellings in each building.

Mr. de Young noted that in order to create a “cluster” subdivision, the Applicant must prove that the same number of building lots could be obtained through a conventional subdivision.  Mr. de Young said that, as part of tonight’s submission, the Applicant has provided to the Planning Board a plan showing a conventional subdivision. This conventional subdivision meets all zoning requirements; however, such a subdivision would require the demolition of the two-family building, and the two new dwellings created would have to be pushed further back into the rear yard.  The result would be that the rear yards would be much smaller and there would be less open space.   Mr. de Young pointed out that, with a “cluster” subdivision, the only physical change to the property would be the addition of a curb cut.  The common property line would go through the middle of the existing structure.  A party wall resolution would be filed with the Westchester County Clerk’s Office.

Mr. de Young told the Planning Board that the Village Board must give the Planning Board the authority to consider a “cluster” subdivision.  The Planning Board could not consider this application without the authorization of the Village Board.  Mr. de Young said that it is unclear to him how the Village Board has acted on these applications in the past i.e., whether they did so in a “blanket” way or on a “case by case” basis, to which the Village Engineer said that the Village Board acted on these applications on a case by case basis.

The Village Engineer said that an issue, which must be resolved, is how to move through this (the “cluster” subdivision) process. It is his understanding that the Village Board would have to pass a resolution authorizing the Planning Board to review the “cluster” subdivision and then send this application back to the Planning Board.  The Village Engineer noted that state law requires that the Village have a local “cluster” subdivision law “on its books.”  To date, the Village does not have a local law to address “cluster” subdivisions.  Mr. de Young referred to the minutes in which the 1985 “cluster” subdivision was approved and noted that, according to these minutes, the Applicant asked the Planning Board to “exercise the power” of New York State Village Law Sec. 7-738 “Subdivision review; approval of cluster development,” and the Planning Board approved the “cluster” subdivision accordingly.

Mr. de Young noted that, at this point in time, the Applicant/owner, 157 Maple Street, LLC, rents both units of the two-family house.

Mr. Andrews said that, from a policy standpoint, he would assume that an alternative to creating a “cluster” subdivision would be to create a “co-op” apartment or a condominium complex.  He asked if there was an advantage to be gained by creating the “cluster” subdivision. The Village Engineer pointed out to the Planning Board that for a condominium complex, a Homeowners’ Association (HOA) would need to be established.  The land on which the condominium complex would be situated would be owned by the HOA which, in this case, would consist of only two members/property owners.  

The Village Engineer said that he would think that, at this point, the Planning Board should seek a legal opinion from the Village Attorney as to how to process this application.  He reiterated that the state requires municipalities to have a local “cluster” subdivision law in place.  He questioned whether, in order to proceed with this application, the Village would need to create a local law or whether it would just be a matter of the Village Board’s passing a resolution to authorize the Planning Board to move forward with their review.

The Village Engineer referred the Planning Board to the Zoning Conformance Table on Sheet 1 of the Applicant’s plans.  He noted that, if this application were to “go the route” of the “cluster” subdivision, the lot width for proposed Lot B would be approximately five feet less than the required lot width for the RB Zoning District (45.57 feet rather than the required 50 feet). The Village Engineer said that this would mean that a variance of approximately five feet would be incorporated into the approval of the “cluster” subdivision.  Likewise, the total side yard would be short by one foot (19.04 feet rather than the required 20 feet).  

The Village Engineer noted that a significant advantage of the “cluster” as opposed to a conventional subdivision would be that the proposed two single-family houses are together and already built.  There would be no changes other than the installation of an additional curb cut.

Mr. Andrews asked if the Zoning Board of Appeals would be involved in any way, to which Mr. de Young responded that, if the application were for a “cluster” subdivision and the process for a “cluster” subdivision were being followed, the Zoning Board would not be involved.  He added that, as part of the review process for a “cluster” subdivision, the Planning Board could waive the aforementioned zoning requirements (side yard, lot width, etc.).  

The Village Engineer noted to the Planning Board that, should this two-lot “cluster” subdivision be approved, the Village would require that the Applicant submit an application for a building permit for each of the two “new” single-family dwellings. Certificates of Occupancy would be issued pursuant to these building permits.

Mr. de Young told the board members that, before scheduling another meeting before the Planning Board, they (the Applicant) would wait to hear from the Village Engineer and the Village Attorney on the matter, discussed tonight, pertaining to the “cluster” subdivision process.   


There being no further business to come before the board, the meeting was duly adjourned at 9:14 P.M., on a motion by Mr. Andrews, seconded by Ms. Allen and carried by a vote of 3 to 0.


Sylvia Mills

Sylvia Mills
Village of Croton-on-Hudson
Engineer's Office
tel: 914-271-4783
fax: 914-271-3790