ZBA July 27, 2005
                                                        DRAFT FILED; 8/5/05
                                                        FINAL APPROVAL: 9/14/05


MEMBERS PRESENT:        Kathleen Riedy, Chairman
                                               Rhoda Stephens
                                               Paul Rolnick

                                               Witt Barlow

Meeting came to order at 8:00 P.M.

Announcement of Fire Exists

Kathleen Riedy, ZBA Chairman, informed the applicant that there are only three members present and therefore the applicant would need to have all three members vote in favor of the application in order to be granted the variances requested.  The applicant was given the option to adjourn until September or continue with the hearing.

The applicant Gerald Weinstein and his architect, Robert Mueller stated that they were comfortable in going forward with the application.


Gerald Weinstein, 1339 Albany Post Rd.   Section 67.10 Block 2 Lot 6.  Located in a RA-40 District.  Request for an area variance from Section 230-41 (H) (K) with respect to a proposed accessory apartment with a proposed accessory building and habitable floor area within an accessory apartment.

Robert Mueller – I am the architect for Gerald Weinstein.  Mr. Weinstein is in the process of renovating and wishes to build an accessory structure that is not part of the main house, which is located on eighteen acres.  It will be built in an area where there will be the least amount of disturbance.  The plans have been submitted to the Board.  It will be 1,560 sq. ft.  The Code only allows 750 sq. ft.  The second variance request is for us to be permitted to have a second detached accessory structure with an accessory apartment.  The main emphasis is that the variance requested is substantial, but the nature of the lot and the main building sits on an eighteen plus acre lot.  Mr. Weinstein wants very much
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to maintain the lot as a single lot and does not wish to sub-divide or put it on the market.  He wishes to maintain it in its natural way, which would allow him to keep the privacy and not have the new building congested into the main structure.  Even though the zoning does not require it, all of the setbacks will be over 200 ft.   There will not be a single tree cut.  We purposely planned it that way.  Mr. Weinstein remembers each tree since his childhood and absolutely wishes to keep and maintain the trees in order to preserve the nature.

Weinstein - In addition to maintaining the flora my wife is training to be an arborist and she loves trees and does not want any impact on the trees or ground rocks and no blasting.  It will just sit on the base rock.  My desire is to have a cottage in the woods.  It is my fantasy. The house was actually conceived in the 1940’s and the property was obtained in the 1920’s.  The owners, Mr. Britton and his wife, passed away and sold it to my father.  It was originally used as a weekend house and there was just a bathroom and cork tiles and everything else was unfinished.  My parents did all the renovations.  When I grew up my father had a farm house and cottage in Garrison, N.Y., which was sold.  My fantasy is to have a replica of that cottage and have a week-end cottage in the woods, thus this design.  My father purchased the property in 1975 or 1976.

Stephens – Do you and your brother own it jointly now?

Weinstein – Yes.  My father sold it to us five years ago.

Riedy – I asked the Zoning Board Secretary to look up the deed records that are on file.  The deed states that you obtained the property in 1995.

Weinstein – Yes, I apologize, my memory is off a few years.

Riedy – Your brother’s name is Martin and his wife’s name is Teresa and they have a 50% ownership?

Weinstein – The other half is my brothers, if he passes away it will go to his wife.

Riedy – Who will live in the cottage?

Weinstein – Me and my wife.  My brother Marty and his wife will live in the house.

Stephens – Will you be using it as a week-end home?

Weinstein – A week-end place I guess.

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Mueller -   The house is in full time use now, but it is under construction.   Martin and Gerald both have a residence in the city.

Riedy – I visited the site.  What are the sticks that I saw?

Mueller – The sticks were placed there to create a footprint of what is being proposed.

Rolnick – Can you see the peak of the roof in reference to the trees?

Riedy – When did you put the sticks up?

Mueller – Two months ago.

Stephens – Where is the house location in relation to the sanctuary?

Mueller – Referred to the plans.

Rolnick -  Will the proposed new house be visible to them?

Mueller – No.  There is a rock outcropping that comes up at the end of the property.  You do not see the house.

Rolnick – Can you see it from the road?

Mueller – It is heavily forested.  If the forest was not there, yes, you would be able to see it.

Riedy – Do you have plans on removing trees in that area?

Mueller – No.  We are not removing trees.  There are many critical trees and we have maneuvered the plans in order to save the trees.  We have designed it in a way that no trees will be cut.

Rolnick – This seems like a very unusual application.  Isn’t this an accessory building?  Aren’t there restrictions beyond what has been mentioned?

Sperber – The setback from the property line and height would be an issue.

Rolnick – It also needs to comply with Section 230-40(A)(1)(c) of the Village Code, which states, “All such buildings in the aggregate shall not occupy more than 30% of the area of the required rear and side yards”.
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Sperber – I think that relates to the primary structure.  I am not sure.

Rolnick – How does that section of the code relate to this variance?

Sperber – Irrelevant, because they are set back farther than any requirement.

Rolnick – It says the required, not total, if it is in a RA-40 Zone is it thirty percent of the forty?  Is it in relation to what RA-40 is?

Sperber – Think of it in terms of a smaller scale.  Think in terms of an RA-5 Zoning District and the primary structure occupies a certain percentage of the actual lot area and there is an accessory structure that meets the five foot setbacks that are required, then the accessory structure shall not occupy more than 30% of the total area including the main structure.

Rolnick – So, once the accessory structure meets the required setbacks, it cannot occupy more than 30% of the area, including whatever structure is already there?

Sperber – Correct.

Rolnick – It seems like the Code is limiting the size of the structure, but from what Mr. Sperber is saying it is in relation to the size of the lot area, not just the RA-40 Zone it is in.

Sperber - They will also have to go before the Village Board for the accessory apartment and to the Planning Board for minor site plan approval.

Rolnick – Don’t we (ZBA) also have to deal with the definition as an accessory structure?

Stephens – It is detached from the main building.

Sperber -  I am comfortable calling it an accessory structure.  You are allowed to have an accessory structure in terms of a structure, but not in terms of the use he is requesting.

Rolnick –Referred to Section 230-9(A)(2) of the Village Code with respect to the detached buildings. Does this apply at all?

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Sperber – The applicant is simply requesting to live in one building and simply live in the other another way.  It is not subordinate to the other.  One will be occupied more frequently and the other will be occupied on weekends.

Rolnick – (To the applicant) It seems that what you are discussing is not really an accessory.  Can you make a case that it is an accessory.  This is a big variance and a very unusual situation.

Stephens -  I also need verification of Section 230-9(A)(2).

Sperber – In a RA-40 District you cannot have more than one single family structure.  But, this becomes mute, because they are looking to create an accessory structure that will meet all the requirements for an accessory apartment without it being located within the primary structure.  They will need to comply with all the requirements for an accessory apartment with respect to habitability, age, etc., and the issue of having a second dwelling unit on one lot.  You can look at that as being a Code issue of Section 230-41(H), which applies to the accessory apartment being located within the primary structure.  That is the issue you have raised.

Weinstein - My wife and I will be in the accessory house approximately one third of the year in fact we are there less at times and my brother and his wife will be living in the main house approximately two thirds of the year.

Rolnick – But isn’t this a dwelling and you can only have one dwelling on a lot?  Isn’t that another variance?

Stephens – You said that basically it will be attached, but detached, like an umbilical cord.

Mueller -  Yes.  The energy will come from the main house for heat.

Weinstein – We also have a good water system that will come from our house to the other house.  I am not sure how it actually works.

Mueller -  Yes, the water power and heat will come from the main house.

Stephens – Does this property have septic?

Sperber - They have already been approved by the County for the main house.

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Mueller - This cottage will literally be dependant on the main source of the existing house.

Stephens – Is the applicant aware that when he goes before the Village Board for a Special Permit, that the Special Permit needs to be renewed after a certain period?
Sperber – It also needs to go before the Planning Board for site plan and architectural review.

Rolnick –Also, part of this special permit from the Village Board for the accessory apartment does not go with the property and upon the owners death the permit is terminated.

Mueller – Can you explain?

Riedy – Asked Mr. Mueller and the applicant to approach the podium so she could explain the Code requirements and its restrictions.

Weinstein – One of the reasons my wife and I did not want to do any blasting is because eventually, it is our plan to return the site to its original pristine condition.

Rolnick – So you understand that sometime in the future this house will be removed?

Riedy – You need to understand that with any subsequent permit application, it will be up to the Board to decide whether or not to agree to the continued use of the improvement and if permission is denied the improvement would have to remain vacant.

Rolnick – Or used for something else.

Sperber –Yes, but now it will be self contained space with a kitchen, etc., and if Mr. Weinstein changes his plans he would need to make the necessary changes in order to convert it to a barn, garage, or etc.

Stephens – There are so many specific things in this Code that we must establish.  The owner or occupant needs to be fifty five years of age from the date of the permit.

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Weinstein – I comply with that.

Riedy – What if the husband is fifty five and the wife is fifty four?

Sperber – We only have four legal accessory apartments in the village.  The law was written to help someone on a fixed income with the intention of paying off the mortgage.  In the instance of married individuals and one who meets the qualifications and one that does not, I’m not sure if what would be required. Section 230-41 states the special permit will become null and void upon the death of the applicant unless survived by a spouse who remains an occupant, but it does not state whether the surviving spouse needs to be 55 yrs of age.

Rolnick – What is the hardship if this variance is not granted?

Weinstein – My dream will be crushed.

Rolnick – Your hardship is that you will not be able to do this?  

Weinstein -  Then where will our weekend place be?

Rolnick – What is another way for you to achieve what you want?

Weinstein – There is no other way to achieve what I want.  We are sticking to this plan.

Stephens – Is the existing house large enough to support two families?  

Mueller – Is it possible; yes, but it is the applicants desire to have a place that is detached from the main structure.  He wants to enjoy the privacy.  His desire and privacy is the issue.

Rolnick – What about sub-dividing the land?

Mueller -  The applicant wants to stay away from sub-dividing.  Their intention is truly not to have any subdivision of the eighteen acres.  It is their desire to maintain the lot as one.  The logistics and the mechanicals can be done, but it is their principal and where they come from that is the reason for not wanting to subdivide and to keep it as one lot.

Stephens – (To Joseph Sperber, Code Enforcement Officer) Is there any Code restrictions about multiple families living in a one family residence?

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Sperber - You would have to go through the definition of what constitutes a family by state and local law.  There is a lot of case law about that and how one relates to the other.

Riedy – If Mr. Weinstein were a caretaker as opposed to co-owner, would that be better?

Sperber – I do not think that would make a difference.

Rolnick -  I disagree.  One section of the code says dwelling unit and the other says subordinate. The care taker’s house is a dwelling unit.

Sperber – What you are talking about is having separate structures on a single lot with shared ownership.

Riedy – Who constructed the original structure?  Is there historical interest?

Weinstein – One of the previous owners was Willard Britton/Civil Engineering & Design and his wife was a photographer and landscape architect.  They had a scheme to develop and purchase a lot of land and we have at home that show their perspective that never came to fruition.  The stone foundation was constructed in the nineteen forties and the house was purchased in nineteen hundred and seventy five.  We have drawings that go back to the fifties and sixties.  We have several drawings.  It is hard to say which one initiated the construction.  Originally it was hundreds of acres including the nature preserve.  Portions of it was then sold and owned by Basty’s, Dichter, etc, there was also property along the creek that was part of the Britton Estate.  Laura Britton, the daughter, took over the property and donated one hundred or so acres to the Audubon Society and then she sold property to my father.

Riedy – When Mrs. Stephens, mentioned earlier, sections of the Code that require as part of this process certain covenants that run with the land that you would need to enter into.  Have you had a chance to review that section of the Code?

Mueller & Weinstein – No.

Sperber – Which Code section are you referring to?

Riedy – 230-41 with respect to Accessory Apartments and 230-41(E) with respect to covenants.

Sperber – That would be evidence that would be required by the Village Board of Trustees and the applicant would need to submit the required information and agree to any restrictions or requirements the Board may impose.

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Weinstein – We accept that.

Rolnick – (To Mr. Sperber, Code Enforcement Officer) – Can two separate lots use the same water and septic?

Sperber – No in both cases for water and septic.  They would also need separate lines for other utilities, such as electric, etc.

Weinstein – They would also need a right-of-way.

Sperber – Any services that you are looking at would need to become independent and would also require trenching, clearing, etc., if it were to become sub-divided.

Stephens – How many large lots like this one do we have remaining in the village?

Sperber – Not many like this one.  There is one off of Old Post Rd. So., Mattie Bells property and possibly on Finney Farm Rd., but I do not believe there is.  There are also a couple of large lots on the west side of Albany Post Rd.  I am not sure of the size and there may be an issue with steep slopes.  This application is a very unique situation.

Riedy – I would like to state as part of the record that there were no responses negative or positive regarding the Legal Notices that were sent to the neighboring property owners with respect to this application.
Riedy – Anyone else like to be heard?

There was no reply.

Hearing Closed.

Riedy – Made Motion to Grant the application as follows:

1.      Variance from Section 230-41(H) with respect to accessory apartments being permitted only within the main structure.
2.      Variance from Section 230-9(A)(2) to allow 2nd detached dwelling on one lot as an accessory apartment.

3.      Variance of 810 sq. ft. is granted from Section 230-41(K)  with respect to habitable floor area in order to permit a 1,560 sq. ft. accessory structure.

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4.      Variance from Section 230-40(A)(1)(a) of the Village Code with respect to Height requirements to allow the proposed accessory building to be 18 feet 7 inches in height.
5.      Variances are granted contingent upon further approvals from the Village Board and Planning Board.

Rolnick – Second the motion.
Vote:  3-0 – In Favor – Riedy, Rolnick, Stephens

Respectfully submitted,

Janice Fuentes
ZBA Secretary


Gerald Weinstein, has applied to the Zoning Board of Appeals of the Village of Croton-on-Hudson, for an area variance from Section 230-41(H) (K) with respect to a proposed accessory apartment within a proposed accessory building and habitable floor area within an accessory apartment.

The property, at 1339 Albany Post Road, is located in a RA-40 District and is designated on the Tax Maps of the Village as Section 67.10 Block 2 Lot 6.

A public hearing having been held after due notice, this Board, based on the hearing, the application, and after viewing the premises and neighborhood concerned, and after much deliberation and extensive weighting of factors, and in the interest of retaining one of the few large tracts of land in its pristine state, finds for the applicant, as follows:

This single parcel of approximately 18 acres of land has been owned by a series of owners since the 1920’s.  Today, the property is owned by Gerald Weinstein, his brother, and his brother’s wife.

It is one of the few large parcels of land within the Village, and is nearby the Britton Brook Sanctuary property of the Saw Mill River Audubon Society.

The benefit sought by the applicant cannot be achieved by any other method.

The hardship is self-created.  However, if the applicant and his brother were to subdivide the property to allow for the construction, an additional septic system would be needed and there may be further disturbance to the natural environment.

There will be no undesirable change to the character of the neighborhood.

There were no objections to the application.

The proposed variance will not have an adverse effect or impact on the physical or environmental conditions in the neighborhood or district.  The applicant’s proposal creates the least amount of disturbance.  There will be no trees removed.

NOW, THEREFORE, BE IT RESOLVED, that the application is hereby GRANTED as follows:

Riedy – Made Motion to Grant the application as follows:

1.      Variance from Section 230-41(H) with respect to accessory apartments being permitted only within the main structure.
2.      Variance from Section 230-9(A)(2) to allow 2nd detached dwelling on one lot as an accessory apartment.
3.      Variance of 810 sq. ft. is granted from Section 230-41(K)  with respect to habitable floor area in order to permit a 1,560 sq. ft. accessory structure.
4.      Variance from Section 230-40(A)(1)(a) of the Village Code with respect to Height requirements to allow the proposed accessory building to be 18 feet 7 inches in height.
5.      Variances are granted contingent upon further approvals from the Village Board and Planning Board.

Rolnick – Second the motion.
Vote:  3-0 – In Favor – Riedy, Rolnick, Stephens