THE REGULAR MEETING of the ZONING BOARD OF APPEALS of the Town of Cortlandt was conducted at the Town Hall, 1 Heady St., Cortlandt Manor, NY on Wednesday, February 18, 2009.  The meeting was called to order, and began with the Pledge of Allegiance.

John Mattis, Chairman presided and other members of the Board were in attendance as follows:

					Charles P. Heady, Jr.
					James Seirmarco
					David S. Douglas
					Adrian C. Hunte
					Raymond Reber 

Also Present 				Wai Man Chin, Vice Chairman 
James Flandreau, Clerk of the Zoning Board
					John J. Klarl, Deputy Town attorney 

				

ADOPTION OF MEETING MINUTES: 12/17/08 and 1/21/09

Mr. John Mattis stated we will review the minutes for January, we haven’t had a chance to review the December minutes.  Do we have any additions or corrections? Seconded with all in favor saying “aye.”

CLOSED AND RESERVED DECISIONS ADJOURNED

A.	CASE NO. 23-07 		Congregation Yeshiva Ohr Hameir for an Interpretation/reversal of Code Enforcement Officer’s determination that the dormitory housing its students is a pre-existing, non-conforming use that a Special Use Permit is or may be required for the Yeshiva’s operation or expansion on the property located at 141 Furnace Woods Road, Cortlandt. 

Mr. John Mattis stated we have a closed and reserved decision which has been adjourned case No. 23-07 Congregation Yeshiva Ohr Hameir and I’ll turn that over to our attorney for some comments.

Mr. John Klarl stated we discussed this at our work session last night Mr. Chairman and we agreed that we are awaiting the Planning Board decision, resolution on their application.  I happen to see in the front row council for Yeshiva.  Any idea, Mr. Steinmetz when the Yeshiva will appear back on the Planning Board with some progress? 

Mr. Steinmetz responded we’re hoping fairly soon in the next couple of months.  There’s some issues about some holds and default test.

Mr. John Klarl asked well how far down the road, because the board has to discuss tonight when to adjourn the Zoning Board of Appeals DNO to?

Mr. Steinmetz responded it is as Mr. Ciarcia who’s the engineer on that project with me, it is weather-dependent.  I would say we will not be back here until at least 90 days.

Mr. John Klarl stated so if we adjourn this to the May meeting, it would be mid-May?

Mr. John Mattis asked could we have a motion for this please?  Seconded with all in favor stating “aye.”  That case is adjourned to the May meeting.

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ADJOURNED PUBLIC HEARINGS

A.	CASE NO. 51-08		John Nolan dba Cortlandt Organics for an Interpretation if leaf composting and wood waste processing facility is a permitted use in the M-1 district on the property located at 33 Victoria Avenue, Montrose. 

Mr. John Mattis stated now we will begin the public hearings for tonight case no. 51-08 John Nolan dba Cortlandt Organics.

Mr. Steinmetz from the law firm of Zarin and Steinmetz approached the Board and introduced himself and stated I am here together with my colleague Brad Schwartz, we’re going to be tag-teaming this a little bit, because we’ve both been handling different aspects of the application.  Also with me tonight is the project engineer Dan Ciarcia and my clients John and Joe Nolan.  Mr. Chairman we do not have a further presentation.  We made a rather, as you know, extensive presentation to your Board at the December meeting.  We went through, in great detail, our arguments as to why we believe the proposed wood chipping and compost operation is, in fact, a permitted use in this zone particularly examining several different categories of the uses allowed in the M-1 district.  We went through our reasoning, the interpretation, the definitions, we talked about the SIC Codes.  I don’t want to go backwards and go through all of that though we’re happy to answer questions that you may have.  I am advised by council that there was a notice issue that the Board corrected and that it has gone back out and certainly we are here to listen to comments that may be relevant to the issues before this Board.  I would mention, we are extremely mindful and told you that at the December meeting that there are operational and environmental issues that are legitimate and appropriate issues but in our opinion, jurisdictionally those are issues for the Planning Board to consider.  Those are issues we’re quite confident that we’re going to address before the Planning Board, have to explain, identify and mitigate any of the concerns and the impact.  We know we’re going to have to deal with those.  Those are really not before you.  This is really a legal question of interpretation.  Finally, I would add that Mr. Schwartz and I both received yesterday a memo from the Town Attorney dated February 12th.  We were not copied on this memo.  It was sent to you and we did receive Mr. Wood’s memo as well as today, Mr. Flandreau was good enough to supply us with an internal memo that was referenced in Mr. Wood’s memo.  As I understand it, it’s really more of what’s entitled ‘Zoning Board of Appeals fact sheet’ that Mr. Flandreau had prepared.  Having reviewed both Mr. Wood’s memo and Mr. Flandreau’s fact sheet, we are of the opinion that nothing that we presented to you in December has changed.  We believe that clearly the Interpretation remains the same.  There are no arguments that Mr. Wood has presented that we find compelling.  We’re happy to go into it if you’d like, if it’s not necessary I don’t want to labor this.  We had taken quite a bit of your time at the December meeting.

Mr. John Mattis stated that unfortunately, at the December meeting, because of the problems with notification, there are a lot of people in the audience that are neighbors now that were not there, so I would appreciate it if you could go over it maybe in a slightly shorter version so that they could be informed as to what exactly went on at that meeting. 

Mr. Steinmetz stated we have two different aspects of this operation that we seek to perform on this site: one is the chipping of wood to create wood chips, or wood mulch-like substance, and the other is to take leaves and convert them into compost.  Both of those would be goods available for retail sale also goods that would be available for contractors and if there are specific questions relative to that we’re happy to explain that.  We walked through various sections of --  we have before you on the plan that’s entitled: ‘Site Plan Prepared for Cortlandt Organics dated October 23, 2008’ just a simple layout of the entire property, the location of the operation itself, which I can certainly allow Mr. Ciarcia  to walk you through.  I would note that this site was previously approved by the Planning Board as a contractor’s yard.  I believe that approval was secured in late 2008 and it’s our position that examining the Zoning table – that’s what we’re really here about.  This is really about a Zoning Interpretation.  There are a few different categories that we walked you through and I’m going to try to do it briefly.  We are in the M-1 zone.  The M-1 zone does not have a specific categorization that says “wood chips,” or “mulch.”  Nor does it have any language on here that says “composting.”  There are a lot of other words that don’t appear on here like “cement mixing,” “ready-mix concrete,” other types of industrial uses that are otherwise found in the Cortlandt M-1 zone.  We explained to you that the M-1 zone is the highest intensity industrial manufacturing zone in the Town of Cortlandt.  It is the zone in which you are allowed to manufacture goods and perform industrial tasks.  In it is allowed the manufacturing of lumber and wood products.  Lumber and wood products are manufactured with the types of machinery that take pieces of lumber or I should really say, take pieces of trees and convert them into lumber.  Trees or sections of trees are brought into a site to manufacture lumber or wood products and they are cut using various types of saws.  There are by-products and there are resulting other products such as chips, saw dust, pieces of wood.  In addition, manufacturing of goods of any type for retail sale on the premises within 10 employees is a special permit use in the zone.  We explained to you that we do anticipate that there will be things that will be made on site, namely wood chips and mulch that will be available for retail sale.  We also do not anticipate any more than 10 employees.  A question came up for me today, when I read Mr. Wood’s memo, where Mr. Wood questions the “common definition of goods.”  This is something we didn’t go into last time.  No one on this Board at the December meeting questioned that we were talking about something that conceivably involved the manufacturing of goods.  Mr. Wood says: “It is respectfully submitted to you that the manufacturing of goods of any type for retail sale of the premises does not fit this operation at all because top soil and compost does not fit within the common definition of goods.”  I went to the Cortlandt Code with Mr. Schwartz and could not find a definition of the word “goods” in your Code.  The law tells us when we can’t find a zoning term defined in the Zoning Ordinance that we are to use the common or plain meaning of the term.  The Law also says that when you’re searching for the common and plain meaning one of the best ways to find that is to go to a common dictionary.  Marian Webster’s dictionary defines the word ‘good’ as: “something that has economic utility or satisfies an economic want.  Personal property having intrinsic value but usually excluding money, securities, and negotiable instruments.  Examples: cloth, wears, commodities, merchandise.”  Anything that is something that has intrinsic value that’s not a negotiable instrument, that’s not a commodity or a security or money is, in fact, a commodity or a good.  What we’re talking about are things that can be sold, things that can be manufactured.  Compost is something that not only the individuals purchase, landscapers purchase, in fact the Town spends a fair amount of money purchasing compost.  Compost is a commodity.  It’s a good.  Wood chips, I don’t know how many of you have wood chips and mulch in your flower beds, in your planting beds at home, but I’d venture to guess that probably 50% or more of you all do and everybody else in this room does.  They to are items that we purchase.  They’re goods, there’s no question about it.  Which kind of brings us then to the notion of contractor’s yards and contractor’s yards are listed under ‘construction.’  General building and heavy construction contractors including contractor’s yards.  Principle permitted use M-1 zone.  There is no clear and single definition of a contractor’s yard.  There are some contractors or folks that know a lot more about contractor’s yards then I do here this evening.  Everyone that I speak to I come away with a common theme.  A contractor’s yard is determined by the contractor who is utilizing the yard.  Some contractor’s yards will have this type of equipment.  Another type of contractor will have a different equipment.  Contractor’s yard is a place where equipment exists, different types of equipment, it’s parked, it’s used, in fact, your Code as we talked about last meeting, your Code uses the phrase “active or inactive.”  It connotes, it acknowledges that a contractor’s yard is not just a stagnant place, it’s a place where there’s going to be activity or action.  This is, in fact, a contractor’s yard.  This is a place where a specific type of operation will take place by contractors.  Contractors are folks that drive trucks frequently and that have materials on them.  They come in sometimes they stay for a while, the materials, sometimes they’re processed, and other times they leave.  This is a use in the M-1 zone that’s entirely consistent with manufacturing and industrial operation.  It’s entirely consistent with the other M-1 uses in and around the area, like the concrete plant that has heavy machinery, trucks, and commerce going on.  We know that this operation has to be circumscribed by the limitations placed by the Planning Board. That means that it’s got to comply with the noise ordinance, it’s got to comply with health regulations.  There are all kinds of things that we have heard described by the neighbors that are absolutely a 100% appropriate and legitimate concerns that my clients have to deal with, that my clients have to convince the Planning Board that we have an adequate protocol, safety and otherwise maintenance that’s prepared and that the Town absolutely, unequivocally has to enforce.  Just like it has to enforce local residential violations and building Code issues against the residents.  It’s got to enforce issues against the business owners as well.  We’ll deal with all of that.  We’ll deal with that at the Planning Board.  This is a straight-up issue.  We have goods that are going to be manufactured.  We’re in a manufacturing zone.  You can classify us, I believe, in any one of the three areas that we’ve indicated up there this evening.  We are either a contractor’s yard, we are clearly for the wood chipping a lumber or wood manufacturing operation and we’re not going to have 10 employees and we’re going to have items that are available for retail sale.  It’s a pretty simple situation.  It’s complicated for folks that may have residences in and around an M-1 zone.  I don’t question that, and as I’ve said, this is the third time, legitimate concerns, that’s not for this Board.  Environmental issues, the New York State Environmental Quality Review Act in SEQRA, those are issues I’ve got to deal with, with my clients in front of the Planning Board, and we look forward to doing that.  The last thing that I’m going to mention because it’s one of the things about this proposal that I’m excited about.  One of the things that I wish that this had been built as originally is that this is a recycling facility.  This is a facility that’s designed to take things that we all use as home owners, as business owners, as human beings and take them and use them again.  This is a recycling facility.  This is a green facility that if it’s operated properly is something that the Town will save, and it’s residents, will save money and it will save a carbon footprint that right now, the New York Times made us very well aware of in a recent article: “communities, such as Cortlandt, are spending money, energy, and burning fuel to transport our leaves elsewhere for somebody else to compost them for us to then go and pick them up and bring them back and sell them to us locally.”  This is quintessential, if it’s done properly, green manufacturing and industry.  This is something that the Town can and will be proud of, and this is something that the Town needs to have.  We’re looking forward to processing the application in front of the Planning Board.  My understanding of where we were at the December meeting is this Board was turning to Council to prepare a resolution in favor of the Interpretation, but for a snag in the notice.  I think we would have been here last month to deal with that.  We’d like to see that resolution prepared and then we’d like to run the course that we have to with the Planning Board.  If you’ve got questions for any of us, we’re all happy to answer them, and we’re certainly happy to go into any questions you’ve got about Mr. Wood’s memorandum with all due respect to Mr. Wood whom, as you all know, we hold in the highest esteem.  I’m happy to say this wouldn’t be the first memo that’s come before this Board where your Board realized that despite what Mr. Wood and or the Town Board may have suggested, you have the prerogative, unquestionably to interpret the Zoning Ordinance, and it’s quite clear when you’re building inspector writes a memo that says “this use doesn’t fit neatly into any category, that this use requires an interpretation,” at least in his opinion, if it requires an interpretation it’s absolutely jurisdictionally appropriate in front of your Board.  To say otherwise, I think is a little misguided, we’ll say.  Thank you.

Mr. John Mattis stated thank you.  Comments from the Board please?  Mr. Reber.

Mr. Raymond Reber responded I, of all the Board members, lived the closest.  I’m approximately a mile away.  I live in the one square mile hamlet of Montrose so that, personally, I have a vested interest to make sure that if we do make a decision on this it’s the right decision not because of what I personally want but what the Law as the Code is defined requires and then we go from there.  Mr. Steinmetz on one hand says it seems to be pretty simple as three categories that we fall into, but then he admits that it also has a grey area and that’s why the Interpretation has been asked for.  I therefore took a lot of time to look at the history of that whole zone, looked at the Code and then I had the pleasure of receiving Mr. Wood’s memo and so I’ve put together a response which I’m going to read and I’m doing that mainly for the purpose of the record.  I have e-mailed that to Mr. Flandreau who can turn it over to our stenographer so that they can get it accurate, but if the Board will bear with me.  
(Copied word-for-word from an e-mail written by Mr. Reber) 
An interpretation has been asked for, as to whether a yard waste (leaves & grass) composting and wood chipping businesses are allowed in an M-1 zone.
The Town has two industrial districts in its zoning code. In the past the code included a third, titled M-2, Heavy Industrial District. Thus the remaining two are for “light industry.”  If the Town is to have any “manufacturing businesses,” they must be in one of these zones.  Webster defines industry as “the production and sale of goods and services.”  Of the Town districts, MD and M-1, the M-1 is the more permissive in that it permits certain activities that are not permitted in MD.
The Town code further describes the M-1 district as permitting ALL those permitted for MD plus Electric Power Plants and manufacturing, processing and assembly activities, when entirely enclosed and conducted within a building or within a solid wall or fence approved by the Planning Board that there will be no observable or determinable external evidence thereof (other than loading and unloading functions).  
Based on these descriptions it appears the applicants businesses are permitted in an M-1 district.  Some may point to the Table of Permitted Uses where It permits “Lumber and Wood Products (SIC Sec 24) except furniture and except logging, sawmills and planning mills.”  As Mr. Wood states in his February 12, 2009 memo to our Board members in his eighth paragraph, these are not applicable.  Logging is the cutting and removal of mature trees with wood chipping a minor activity to eliminate the unusable branches that need to be removed from the log to permit transporting.  Sawmills and planning mills are major manufacturing operations involving “heavy industry” equipment with wood chipping again a minor activity to eliminate the left over waste wood.
Mr. Wood also states several times “does not” list, describe, etc. the proposed use in the Town’s code or the SIC code with one exception; Section 2875, Fertilizers, Mixing Only. Included in the description is “also includes manufacturing of compost and potting soil.”  There is nothing in the Town code that does not permit Sec 2875 in the M-1 district so long as it complies with the defined constraints.
Mr. Wood’s next to the last paragraph states “manufacturing of goods of any type for retail sale of the premises does not fit this operation at all because topsoil and composting does not fit within the common definition of goods.”  As stated earlier quoting Webster, manufacturing is either goods or services.  Since composting is not a service, it must be a goods and in fact is a product for sale.
With no definitive statements in the code on the subject, we need to follow Mr. Wood’s second paragraph statement “to take a look at the legislative history and the intent of the legislative body.”
First, consider that the Town is encouraging all with yards to compost there own yard waste as being environmentally sound and a cost saving to the Town.  Then consider what the Town has permitted in the area in question.  A couple of hundred yards south of the proposed activities the Town itself operated a composting operation for years.  The operation was terminated for reasons other than the composting, which in itself was a positive activity and one currently conducted by many communities in Westchester including Yorktown and Briarcliff who operate sites that accepts yard waste consisting of leaves, grass, logs, stumps and brush and composts using the Windrow piles procedure.  This is what the applicant is proposing to perform.  Just south of the proposed site the Town has approved the operation of an asphalt plant and a concrete plant.  Just to the north and immediately adjacent to residential property there has for years been a tree cutting business where wood is cut to firewood size and sold and where wood chips are collected, stored and sold.
Taking into account all of this information I can come to only one conclusion.  Wood chipping and yard waste composting IS PERMITTED IN THE M-1 DISTRICTS so long as they comply with the constraints described in the code and acceptable to the Planning Board.
 Personally, I hope that the Planning Board does it’s job properly and makes sure that this is done in an environmentally safe manner so that it does not disturb the community that I live in.  Thank you.

Mr. John Mattis asked any other comments from the Board?  We’ll open this up to comments from the audience and I’d like to reiterate what we said at the last meeting, this is a narrow Interpretation of the Code.  The proper place for comments on traffic, noise, environmental impacts, all of those lie with the Planning Board.  Anyone who would like to speak about the Code itself and any interpretations they have or ideas that they have, please come forward.

Mrs. Joan Knapp approached the Board and stated of course I live in Montrose.  I want to first thank the Board for re-opening the public hearing.  I know this is not an every day occurrence and all the residents really do appreciate it.  In past month a lot of information has come to light both in the type of industry that is being proposed and the ins and outs of the Town Code.  Now I would like to ask the members of the Zoning Board and even the Code person, I guess Mr. Flandreau.  What exactly does the Town look to for definitions or the Town Code?

Mr. James Flandreau responded we would start with the Town Code.  The information within that and that also brings us to the SIC Code under certain uses.  So, that’s what we would look into to see if what they’re proposing falls into those definitions.

Mrs. Joan Knapp stated okay, what about the NAICS?  Are you familiar with that?

Mr. Jim Flandreau responded I have been a little bit familiar but we don’t use that.  That hasn’t been adopted by the Town Board as part of the Code. 

Mrs. Joan Knapp stated let me read to you.

Mr. John Klarl added a side note it is being considered by the Town Board now for inclusion in our Code.

Mrs. Joan Knapp stated let me just read the explanation of it.  The North American Classification System is the standard used by the Federal Statistical Agencies in classifying business establishments for the purpose of collecting, analyzing and publishing statistical data related to U.S. business economy.  NAICS was developed under the hospices of the Office of Management and Budget and adopted in 1997 to replace the Standard Industrial Classification system SIC.  I don’t understand why in eleven years that the Town did not know its existence.  I mean this is not a new type of finding.

Mr. John Klarl stated the Town knows of it.  The last time we had a major Zoning Ordinance revision, I think was January 1st of 1994.  In January 1st, 1994 SIC was the standard and that was used.  It  hasn’t been changed.  What the Town has had as a policy over the years of doing several Zoning Ordinance change at one time.  I met with Mr. Verschoor of the Planning department today and we’ve proposed a couple of Zoning Ordinance changes, and that’s one of them that SIC will be replaced with the North American.

Mrs. Joan Knapp asked so if you were to look for a definition now knowing everything that you do know, would you gather information, Mr. Flandreau, from SIC solely or would it also be the NAICS now that you know of its existence?  Would you not only look to the SIC but the other one, which is the update of it?

Mr. James Flandreau responded the Code only allows us to use the SIC in determining where a definition would fall.  Once if the Town Board adopts the newer version of that then we would be able to use that also as part of our finding of a definition.

Mrs. Joan Knapp asked so for the meantime you ignore it then?

Mr. James Flandreau responded I don’t have the power to use that out of the Town Code.

Mr. John Klarl stated as I explained at the work session last night we use the SIC.  If we use the SIC right now we feel that really is deficient, we could look to other authorities.  Just like I said, for example, when the New York Court of Appeals are signing Law they’ve decided based upon existing New York Law but occasionally there will be no decision on the subject and they’ll look to the California decision, the Connecticut decision, not as binding but something to look to.  So if we really felt the SIC was deficiently given the area right now we would also look through North American SIC.  We are hopefully amending our Code soon to expressly recite that in the Code.

Mrs. Joan Knapp stated first I’d like to address the logging issue and really this is a logging industry.  It’s not any other kind of euphemism that we’re talking about here.  Mr. Steinmetz got it right again tonight when he gives these hokey little definitions here instead of looking to the SIC even.  He’s whipping out Webster’s to give a definition of logging and saw milling and planning, when actually there is already a definition within the SIC and I’ll read it for you “logging in the SIC, not the NAICS, are establishments primarily engaged in cutting timber and in producing rough, round, hewn or riven primary forest or wood raw materials, or in producing wood chips in the field.”  That’s exactly what we’re talking about.  And, that’s in the SIC.  This is not the NAISC which if it were updated would cover not only one but two of the factors that this application is which are: cutting timber, which they’re not cutting timber, we’re not going to dispute that at all, they are transporting timber.  Now, they’re not actually transporting the timber but they are being the recipients of transported timber by the applicant’s attorney’s own admission.  It is stumps, logs and that type of material, so that does qualify as timber.  They are producing wood chips in the field.  They’re bringing a piece of equipment in that isn’t even owned by them.  They’re doing the wood chipping, and they’re taking it out again.  So, they are really fulfilling two of the three qualifications under ‘logging.’  And, again, this is SIC and NAICS.

Mr. David Douglas asked can I just ask a question?  Are you saying in your view what they’re doing is they are cutting timber?

Mrs. Joan Knapp responded they’re not cutting timber.  I’m not disputing that, no.  But they are the recipients of timber.  Now timber not in the sense that it’s a giant tree, but it’s certainly wood that is cut and they’re substantial pieces of wood.

Mr. David Douglas responded no I’m just trying to understand what you’re saying.  I’ve got the SIC definition right in front of me.

Mrs. Joan Knapp responded yes we’re definitely not saying that they’re cutting timber.

Mr. David Douglas stated they’re not cutting timber but you are saying that they’re producing wood chips in the field.  Is that what you’re saying?

Mrs. Joan Knapp responded yes.  They’re actually bringing the equipment in.  They are producing the wood chips and taking the equipment out again.

Mr. David Douglas stated okay I just want to make sure I understand.  You’re saying it falls within that aspect of the section 24-11’s definition of logging?

Mrs. Joan Knapp responded yes, and it fulfills two out of the three not just one.

Mr. David Douglas asked what’s the second one?

Mrs. Joan Knapp responded the second one is ‘producing wood chips in the field and transporting timber.’  They’re the recipients of the timber.  

Mr. David Douglas asked where does it say transporting the timber is transported in this definition?

Mrs. Joan Knapp responded in the NAICS.

Mr. John Klarl stated easier to follow in her letter.  She’s using the NAICS for the three requirements.

Mrs. Joan Knapp responded even if it’s just the SIC it’s still fulfilling the one requirement which is ‘producing wood chips in the field.’  That right there is not a permitted use in an M-1 Zone.  I don’t think there’s any question about that.  We know that these are large pieces of wood and it’s not going to be two inch branches from a tree, because at the December meeting Mr. Heady asked if good sized logs would be coming in and Mr. Steinmetz said “yes.”  So, this is the applicants own attorney admitting that they will be trucking in, people will maybe think they’re doing lumbering, but they’re not, they’re actually producing wood chips.  They’re having substantial pieces of wood come in.  This is not just little tiny saplings.

Mr. Raymond Reber stated we have the ability when we make an interpretation to set the definition as we see it, and I can assure you that if we interpret in favor of wood chipping there’s no way we’re going to say that they can bring logs in and cut them.  We’re literally looking at waste wood.  Stuff that is useless for making a 2’ x 4’ or anything else, just garbage wood.  That’s the way we would define it.  That’s what I would ask for anyway.

Mrs. Joan Knapp stated if I could just bring to your attention, I know that you would want to keep it to two inches or less or about there, because it is small waste wood.

Mr. Raymond Reber responded something relatively small yes.

Mrs. Joan Knapp stated the application, I actually foiled it, and there’s very little information within the application but one of the photos that was included of the equipment is called a tub chipper, 10 inches wide, 9 feet deep, and if I could show it to you,  could see that this is not a two inch pieces of wood.

Mr. Raymond Reber responded that may be but we as a Board can come up with some definition.  I don’t think that we’re going to give necessarily two or one inch or very specific, but we would give a general description and then leave it up to the Planning Board to refine things like the size of the equipment and what they think takes you from being scrap wood from chipping versus moving into the category of logging and lumber, because we don’t want to think of it as logging and lumber materials.

Mrs. Joan Knapp responded but you can’t of the industry as logging traditionally because there are large pieces of wood coming in that are going to be reduced.  Again, you’re not bringing in whole trees.   It doesn’t make sense to bring a whole tree in when that could be a part of lumber.

Mr. Raymond Reber responded they may have large pieces of wood, I mean a stump is a pretty large piece of wood if they’re going to cut up a stump.

Mrs. Joan Knapp responded pretty substantial.

Mr. Raymond Reber but it’s waste wood.

Mrs. Joan Knapp responded it is waste wood but it’s still logging.

Mr. Raymond Reber stated but that’s the only way that we can differentiate it because the Code does talk about logging and lumber.  Well, people know what logging and lumber is.  It’s something you can build from.  You can’t build from waste wood.

Mrs. Joan Knapp responded not necessarily.  Not according to the SIC.  When you think of  a logger you imagine somebody in a pair of jeans and a flannel shirt but you know this is modern times, this is something completely different.  Again, the industry is defined by the equipment and how it’s used and the materials that are brought in.  These materials, this equipment, and I’m getting ahead of myself a little bit, this equipment is actually – they’re marketed to logging industries.  Here’s one it’s called More Bark…

Mr. Raymond Reber responded I’m sure that the very chipping equipment that the Town of Cortlandt uses to come to my front door and chip up the stuff I put out from my yard is probably the same equipment that they’ll drive into the woods to chip branches and stuff out in the woods because it’s portable.  That doesn’t mean anything to me.

Mrs. Joan Knapp responded yes but the equipment is indicative of the industry.  You have a manufacturer whose showing at conventions like the Oregon Logging Conference; Trees and Utilities National Conference; Forest Products, Machinery and Equipment Expo; and the Arkansas Timber Producers.  This is not a small piece of equipment.  This is really indicating what the industry is and it really is logging.

Mr. Raymond Reber responded this is in an M-1 zone.

Mrs. Joan Knapp responded I do realize that, but again, logging is not a permitted use within an M-1 zone.

Mr. Raymond Reber responded yes but if they’re not bringing logs in, the equipment is a secondary issue.  They can use whatever machinery they want in a manufacturing facility as long as it complies with the conditions environmentally, health, OSHA, and all of the other criteria.

Mr. James Seirmarco stated if you look at, common sense tells me logging is the cutting of trees to produce lumber.  There are byproducts in that process: saw dust, branches, and so on, oil for the chain saw, the chain saws, there are a number of peripheral small items; stumps, and whatever.  But, logging itself is the cutting of big trees for the purpose of producing lumber for sale.  And, that’s where they make their most money.  They also have to take care of the peripheral stuff.  But, you can’t say if somebody 10 miles away is taking care of the peripheral stuff they’re logging.  I hear you.

Mrs. Joan Knapp responded with all do respect Mr. Seirmarco, Mr. Steinmetz stood up here in December and he gave again the Webster’s definition.  What people may think it is, is completely different from an actual definition.  And, this definition comes from the SIC Codes that the Town is based on.

Mr. James Seirmarco responded I think you’re trying to do the same thing.  You’re taking logging and you’re lumping chipping and saying they’re synonymous and my common sense tells me that logging is one thing and then there’s the peripherals.

Mrs. Joan Knapp responded but in the SIC, again I’m reading directly from SIC that the Code is producing wood chips in the field, this is logging.

Mr. James Seirmarco responded but that’s a subset, that doesn’t say that’s their main product.  If I read it correctly, it’s a subset.  They have included some of the smaller things that go along with logging, like they probably take the bark off the trees and process it for paper, that’s not logging, that’s the paper industry.

Mrs. Joan Knapp stated again I’m going to read directly from it: “establishments primarily engaged in cutting timber and in producing rough, round, hewn or riven primary forester wood raw materials, or in producing wood chips in the field.”  This is not secondary.  This is a primary use.  The size of the wood is not material.

Mr. James Seirmarco stated I think that part of logging – you can’t leave that stuff in the woods.  You’re required to finish the job.  

Mrs. Joan Knapp responded that’s actually part of the job.  You’re right.

Mrs. Adrian Hunte stated one could also interpret this to mean “establishments primarily engaged in cutting timber and as part of that, in their primary focus of cutting timber, they also, in addition to that, are producing the rough, round, hewn or riven primary forest of wood materials, or in producing wood chips in the field.  You have to start with the log, the big, cutting timber…

Mrs. Joan Knapp responded of course you do, because you can’t take something small and make it big.  They’re taking something big and making it small.

Mrs. Adrian Hunte responded but I don’t think you can read this and know that these are not the greatest what matters.

Mr. Raymond Reber responded when they have to write this they have to satisfy the industry.  Now, the industry has said, and I’m sure they had input because I’ve been in various industry businesses and I know we have a say in these things.  We tell “yes I see” and whoever else is making standards what they have to do.  The point here is they’re saying, if we go in and log, generally speaking, we are not allowed to leave the trash wood behind.  We can’t just take a log, cut off all of the branches and just let it drop and walk away.  We’re are going to be required, wherever we go, to chip that all up so it can be brought back into the soil and left in a usable manner so that the deer and antelope can roam and all of that kind of stuff.  So, what they’re saying is you have to put that in there, because if you don’t and we go into some community and we want to do logging they’ll say “ah, but we insist that you take the brush and you can’t leave it there.”  And they’ll say “well, we’ll chip it.”  And they’ll say “oh, it doesn’t say chipping, it just says logging.”  “Well, what am I supposed to do with the brush?” “I don’t know.” “Am I supposed to haul that out in trucks?”  So, they’ve made it an integral part of the logging definition because that’s what the industry needs to function.  That doesn’t make it a primary factor.  That’s like saying in a hospital they have sterilizing machines to sterilize their equipment, that doesn’t mean that sterilizing is a major business that only applies to hospitals, and that if you’re in another business and you do sterilization and you’re not in a hospital you can’t sterilize.  

Mrs. Adrian Hunte stated it’s more like reading it in the conjunctive as opposed to the disjunctive.

Mr. John Mattis asked would you introduce yourself please?

Mr. Phil Dalton of 72 College Hill Road approached the Board and stated logging industries defined by the Federal Government “the industry comprises establishments primarily engaged in one or more of the following: number one cutting timber, they’re not doing that.  Two: cutting and transporting timber, debatable.  And, three: producing wood chips in the field.  That’s the Federal Government definition.  It’s primary what they’re doing is producing wood chips reading the Federal Government, that’s what it is.

Mr. James Seirmarco responded no, no that doesn’t say that.  I respectfully disagree with you.  I’ve read this.  I understand that.

Mr. Phil Dalton stated there’s a print out right from the Government.  That’s what it says.  You’re interpreting the Law yourselves.  You’re writing Law.  That’s the Law right there.  That’s the Federal Government saying what industry it’s in. 

Mr. Raymond Reber responded, again the intent when they say “one or more” I would argue that if you just do one of those per se, and it’s not logging itself, and it’s not cutting the trees, and it’s not transporting logs, and all you’re doing is chipping wood someplace, I don’t think the Government intended that that was the one.  I think that what they’re saying is if you do logging, that’s one.  If you do logging and transporting, that’s two.  If you do logging and transporting, and chipping, that’s three.  You may disagree and I may tell you that the Government many times writes things in ways that don’t necessarily say what the intent is but I’ve got to believe that that was the intent.  I’m sorry.

Mr. Phil Dalton stated it doesn’t say two out of three.

Mr. James Seirmarco stated this is also the NAICS.  It doesn’t say that in the SIC.

Mr. Phil Dalton responded it does, it just doesn’t number them.  It says “or…or more.”  It says “or in producing wood chips.” 

Mr. John Mattis stated “in the field.”  That’s a key phrase too.

Mrs. Joan Knapp responded they are doing it in the field.

Mr. John Mattis responded no, in the field could mean in the forest, it could mean on their property.  That’s part of what we have to determine.  That’s part of what we’re wrestling with right now.

Mr. Phil Dalton asked so is there a question of “in the field?”  Because, to me, it’s outside, it’s in the field.

Mr. Wai Man Chin asked in your back yard, is that the field?  If you rented the wood chipper from let’s say Handy Rental and you chip in your back yard, are you logging?

Mr. Raymond Reber responded in this definition you’re violating the Code.

Mr. Wai Man Chin stated I’m asking you a question.  

Mrs. Joan Knapp said the scale.

A resident stated I didn’t say anything about scale.

Mrs. Joan Knapp stated the Town is also logging then, the Town is logging if you want to argue that.

Mr. Wai Man Chin asked do you chip in your backyard?  I think everybody does.

Mr. John Klarl stated but the preamble language is “establishments engaged in,” and we don’t generally consider the home owner an establishment.

Mr. Dalton asked so this is commercial?  Not a home owner using the chipper?  This is commercial and on-going?

Mr. Joan Knapp stated I would never put this in my backyard to get wood chips.

Mr. Charles Heady stated it wouldn’t fit.

Mr. Dalton stated you can’t buy one of those at Home Depot.

Mrs. Joan Knapp stated I wouldn’t get it in the back, it wouldn’t fit.

Mr. Dalton stated that’s what makes it logging.  This isn’t leaves.  In fact there are 18 composting locations in Westchester.  I’m not aware of any that use this type of equipment. 

Mr. David Douglas asked but when you say “this is what makes this logging,” what’s the “this” you’re saying the fact that they’re using that equipment is what makes it logging?  Just trying to understand what you’re saying.

Mr. Dalton reiterated it’s anyone of the three they’re using equipment that’s even sold to the lumber industry, the logging industry excuse me.  And, that’s what makes this logging.  When you take a look at a saw mill it produces wood chips.  That’s not allowed either.  Milling produces wood chips.  You take a look and see what were they trying to get at here?  What’s the common theme when they were saying this is not allowed on this M-1 property and it’s the wood chips?  The first thing that was listed when they got up to speak.  Again there are 18 compost facilities in Westchester.  A lot them only take leaves and grass.

Mr. John Mattis well the composting is a separate operation than the wood chipping.

Mr. Dalton stated that’s why.  But the major thing that they’re doing here, when you look at the site plan, it’s operating an industrial, a logging wood chipper.  That’s what makes this logging when you read the Town Code, it’s not a permitted use.  Thank you.

Mr. Charles Heady stated and this you mentioned before that the wood chipper, it would bring in the chip from wood and take the wood chipper out.  I don’t think they’re doing that.  Once they bring a chipper in.  They’re going to leave that chipper in there to do the work.

Mrs. Joan Knapp responded that’s not what they said.  That’s not what was said at the December meeting. 

Mr. Charles Heady responded no that’s what you said tonight.

Mr. James Seirmarco stated that’s not pertinent whether they leave it there one minute or ten years.  It has nothing to do with it.  

Mr. Charles Heady responded they wouldn’t do that, it would cost them too much of back-and-forth

Mrs. Joan Knapp stated if it’s permanent than it’s a saw mill.

Mr. James Seirmarco stated no I disagree.

Mr. John Mattis stated we have to determine whether or not chipping is permitted.  If chipping is permitted and I’m saying if and we haven’t gotten there yet, than it’s up to the Planning Board to say that big chipper that you showed us is too extensive for that property.  They set the size of it.  We just determine whether chipping, commercially, is allowed or not allowed.  And, they could be doing something by hand which we know they won’t.  It doesn’t state, in the Code, anything about the size.  That is something that the Planning Board, I’m sure, will look long and hard at and they can put restrictions on that.

Mrs. Joan Knapp stated for the composting.  To understand the use as defined by the applicant we have to take into account what is being brought in.  And, again, like Mr. Dalton said there are 18 sites in Westchester County, there’s Bedford, Briarcliff, Tuckahoe, Pleasantville, Rye.  They all take leaves and grass and many are open only to the community that they operate in for residents to pick up compost.  Again, this is community, this is not commercial and while I’m a big fan of composting just like Mr. Reber, I think that the size of it and the intent changes the industry.  This is not going to be a compost heap because the chippers are going to be used during the course of composting.

Mr. John Mattis stated you have to separate the two.  They’re doing two operations.

Mrs. Joan Knapp responded you can’t because they are actually together. 

Mr. John Mattis stated no.

Mrs. Joan Knapp stated you’re taking the yard waste.

Mr. John Mattis responded they’re going to bring in leaves and grass and keep it separate.

Mrs. Joan Knapp asked will it only be leaves?

Mr. John Mattis responded yes.

Mrs. Joan Knapp stated okay well that brings me over to here.  Mr. Reber stated in December “composting 100% leaves without any other help is very difficult.  It does need some help.”  Mr. Nolan replied “this is why we have a professional coming in to do it.” And you stated that Stone Barns is coming in.  Let me tell you about Stone Barns.  Very interesting and I’ll read directly from their website.  “Instead of using chemical fertilizers, we make compost in windrows to help maintain and improve our soil.  Compost is basically a microbe furnace where manure, kitchen scraps, minerals, straw and other organic materials are cooked down by millions of micro-organisms into the super nutritious black gold we feed back to the soil in our growing areas.”

Mr. Raymond Reber stated we can limit, my interpretation because it’s the way I’m familiar with how to compost leaves without causing problems with rats and all that, is you use…

Mrs. Joan Knapp responded you did it at a very small scale for your home.

Mr. Raymond Reber responded some people say mine is larger scale, but it doesn’t matter.  The point is if you limit it to yard waste, and I think that is one of the things that we would interpret here as yard waste, because we don’t want garbage, we don’t want kitchen scraps, we don’t want any of that stuff.  Because, now you get into a different health situation, everybody else gets involved.  But, if you limit it to yard waste, you’re talking leaves, grass, twigs.  That’s about it.  That’s what you find in your yard.

Mrs. Joan Knapp stated you’re introducing twigs again.  What’s to stop them from taking the wood chips and putting it in.  Again, this is where the connection is being made between the logging.

Mr. James Seirmarco stated economically that wouldn’t make sense. 

Mrs. Joan Knapp asked why wouldn’t it make sense?

Mr. Raymond Reber stated but even if they did, the point is composting wood chips.  If composting leaves is difficult, composting wood chips is a nightmare.  They’re not going to put a lot of wood chips in their compost pile, because it’s almost pure cellulose and it’s going to be a terrible task to compost it down.

Mrs. Joan Knapp stated let me read to you from the EPA, what the EPA says about compost.  “Compost is organic material.  They can be used as a soil amendment or as a medium to grow plants.  Mature compost is a stable material with a content called hummus that is dark brown or black and has a soil-like earthy smell.  It is created by combining organic waste, for example yard trimmings, food waste, manures, in proper ratios into piles, rows or vessels.  Adding bulking agents, for example wood chips, as necessary to accelerate the breakdown of organic materials and allowing the finished material to fully stabilize a mature through a curing process.”

Mr. Raymond Reber stated if they have a very reactive process, yes they could do that.  To be honest with you it wouldn’t cause any problems because wood chips is a highly cellulose substance similar to leaves.

Mrs. Joan Knapp responded but they’re not bringing the wood chips saying to do the composting.  They’ve already got the wood chips made from the logging operation on the property.  So, what’s introduced into the composting which is no longer grass and leaves.

Mr. Raymond Reber stated but it doesn’t – the main thing that we would do is yard waste.  Wood chips if it comes from yard waste, which is what we’re talking about branches and debris, it’s still yard waste.  The point is it’s not garbage.  That’s the main thing.  You don’t want garbage in there.  Those are the things that create problems.

Mrs. Joan Knapp asked but do you agree that even the EPA says “put the wood chips in, in order to accelerate the breakdown of the organic materials?”  Who wouldn’t do that?  Who wouldn’t want to increase their profit by making sure that the compost is going faster?

Mr. Raymond Reber responded me, because I compost.  Because I don’t think that it goes faster and I’ve never used wood chips.  Because I find that it slows it down, personally in the way I do composting.

Mrs. Joan Knapp stated but you are not in it to make money.

Mr. Raymond Reber stated I’m doing it to get it composted as quick as I can to put it into the gardens that my wife cultivates constantly.

Mrs. Joan Knapp stated but it’s also in your yard so you’re taking special care to make sure that it’s done a certain way. 

Mr. Raymond Reber responded that’s what windrows are.  These people are going to be on top of that constantly because they’re in a business.  They want to get it composting quickly.

Mrs. Joan Knapp stated yes they’re in a business, you’re right.  They are in the logging business, and they want to get the logging done as fast as they can, and the composting they’re going to want to turn that over as fast as they can.

Mr. David Douglas stated they’re not in the logging business.

Mr. Raymond Reber stated they’re in the composting business.  We’re talking composting.  And, they’re going to want to compost as quick as they can and get it out of there because otherwise, it’s not profitable for them to have it sit there for ages, and ages. 

Mrs. Joan Knapp stated exactly which is why they would want the wood chips in there to accelerate the breakdown.  One other little note.  I know that everybody likes to talk about how many compost sites are within Westchester County.  Yorktown, which is right next to us, they compost with sewage sludge to form a relatively stable hummus-like product that is an excellent soil conditioner.  Now, this is in an M-1 zone.  It’s a pretty well-known fact that there was a septic company there.  Who knows what can happen.  And, I’m not insinuating anything.

Mr. Raymond Reber stated again, if we define this as yard waste, we are not considering the underground sewage that they can pump up and recycle.  Yes, it’s a matter of definition and Code Enforcement, and Planning Department setting criteria.  Because, I agree you don’t want that there.  Yorktown does it because they have a sewage plant, it’s land locked.  They have sewage, they have to get rid of it.  If they don’t figure out a way of composting it, which by the way works out very well if you do it properly, then they have to spend a lot of money to transport it.  So, they get a permit, and they’re allowed to do it because they do it properly and it doesn’t cause any problems.

Mrs. Joan Knapp responded agreed, but again, the compost is for the use of the residents there.  It’s done by Yorktown for Yorktown as is the other 18.

Mr. David Douglas stated but that’s not relevant to the issue before us I don’t think.

Mrs. Joan Knapp stated one other item.  Mr. Steinmetz again tried to find a little corner in order to get his little business into and said that it’s a contractor’s yard, there’s no other definition.  When if you read “contractor’s yard” it says “any space, whether inside or outside a building, on a  parcel of land, used for the storage or keeping of construction supplies.”  These are clearly not construction supplies.  They are not building a house.  They are not building cars.  They are not doing any kind of construction.  So, this would not qualify under the little category of “contractor’s yard.”

Mr. Raymond Reber stated I’ve never considered contractor’s yard as issue here.

Mrs. Joan Knapp responded I know but Mr. Steinmetz likes to stand up here and dictate to you exactly where it would fit in.  Thank you for your time. 

Mr. John Mattis asked would anyone else like to speak?  Anyone on the Board?  Yes sir. 

Mr. Robert Lewis approached the Board and stated I live at 9 Victoria Avenue right behind the site and all I could hear today is a bunch of terms of Webster, and all of that.  Webster doesn’t live next door to what this is going to be.  Who’s going to monitor this?  Once they get their foot in the door anybody can do anything they want. 

Mr. John Mattis stated well it’s up to Code Enforcement to monitor but that is not the issue that we’re looking at.  But, that’s a very relevant issue to the Planning Board.

Mr. Robert Lewis stated the issue here tonight is not the contractor’s yard, it’s whether this proposal can work in an M-1 zone.  That’s the issue.  No matter what Mr. Steinmetz says and try to dress it up and make it look nice and all that, that’s the issue not a contractor’s yard.

Mr. John Mattis stated the actual issue was whether it’s permitted.  Whether it works or not is what the Planning Board does.

Mr. Robert Lewis stated according to the lawyer Mr. Wood and some of the regulations, it’s not permitted.  I don’t know what’s clearer than that.  Everything he said is clearer.  To me it was confusing.  What’s clearer is Wood’s letter and the other Laws, that’s it.

Mr. John Mattis responded well what we’re charged with is listening to both sides and seeing what we determine, in our best knowledge, really fits.  It has nothing to do with, as we’ve said before, whether we want this or whether we don’t want this.  It’s strictly how we determine what the Code says based on what’s in the Code, what’s in the SIC, and the testimony that we hear on both sides. 

Mr. Charles Heady stated you also mentioned before that you were wondering who was going to monitor the situation after the guy got it going there.  Code Enforcement will take care of that, but I think probably your neighbors will take care of that just as well as the Code Enforcement when the time comes.  I don’t think you have to worry about that.

Mrs. Joan Knapp responded not our job.  One other thing I want to say.  I know that all of the issues: quality of life and everything will be brought before the Planning Board and we originally came here because we were a little outraged about what kind of operation was proposed here.  But, we’re not fighting just for the M-1 behind our homes.  This is really not a permitted use in any M-1 zone within the Town.  We want to be really clear on that and we’re a little excited, I don’t know if that’s the right word.  We’re a little upset over the fact that so much has been overlooked, and information was not put out there.  I think that we are correct in the way that we’re looking at this in a logging industry, again not just for our neighborhood, but for any M-1 within the Town.

Mr. John Mattis responded this interpretation would apply to any M-1 zone.  Although it’s specifically because of this case, it’s an M-1 determination generically, not a specific site plan determination. 

Mrs. Joan Knapp stated and if it had been in an M-1 say over by Roa Hook Road, and if there were no residents, it probably would have slid right in under the radar and that would have been a shame because it is not a permitted use. 

Mr. John Mattis asked anyone else?

Mrs. Adrian Hunte stated I’d like to just point out something in this NAICS definitions.  There’s the 11-33-10 logging and it makes reference to the 1987 SIC Code and it goes under 24-11 and it goes through all of those items that we we’re just discussing concerning cutting timber, cutting and transporting, logging, pulp wood logging and the bottom being wood chipping in the field, so they do make a distinction that there is a 24-11 wood chipping in the field and if you look at our Zoning Code under manufacturing it says that “lumber and wood products SIC section 24,” and then it makes the exception of furniture and except logging, saw mills, and planning mills.  Under the SIC Code there is a distinction of, even though they may be included in 24-11, 24 is allowed and that includes wood chipping in the field.

Mrs. Joan Knapp asked are you looking at the 2007 NAICS?

Mrs. Adrian Hunte responded no I’m looking at the 2002.

Mrs. Joan Knapp responded there’s 2007.  Again, logging and it says…

Mrs. Adrian Hunte responded that’s fine, but that’s not what I’m looking at.  I’m looking at the comparison to the wood chipping and they make a distinction, they separate them out.  And, those things are allowed under our Code.

Mr. James Seirmarco stated and right now we are obliged under Town Law to look at our Code, and the SIC, and not the NAICS.

Mrs. Joan Knapp responded well there has been no determination made yet so there’s a chance to rectify the old system which is 11, 12 years old to make sure that this is really within the Federal Government standards of today.  

Mr. James Seirmarco stated I don’t disagree with you there but what I’m saying we have to make this narrow interpretation based on what’s before us right now. 

Mr. David Douglas responded the way the Town Code is written now it doesn’t refer to the NAICS.  But, speaking for myself individually, I will look at the NAICS definitions and I will take that into consideration in which way I vote.

Mrs. Joan Knapp responded okay, I appreciate it. 

Mr. Raymond Reber stated I did look at it out of curiosity and as Ms. Hunte had indicated I’m not so sure it changes it.  It rewords things but I think the bottom line still is that it gives you a chance to segregate it and look at it independently.

Mrs. Adrian Hunte stated the Code numbers are still the same.

Mr. Raymond Reber stated also just a comment on the issue of monitoring and policing.  I know we don’t like to think that, we as citizens, have to do our own policing, but it’s a fact of life there’s no community that even Towns that have big police departments don’t see everything.  They depend on residents to alert them.  I live next to a Town Park and I can tell you that it is very frustrating.  There are things that go on.  I have to initiate the phone call.

Mrs. Joan Knapp stated I agree with you and I have to say that it will upset me greatly that if the policing of an operation such as this were handled with the same care that definitions and information were given in the same way instead of dictated to by someone who’s standing here representing an applicant.  I don’t want to have to police somebody, but if I have to rely on a Town employee to do it, I’m not going to sleep very well at night.

Mr. John Mattis stated I’d like to comment on that.  There have been cases in the past.  Home Depot which most people don’t know is the only property that’s owned by the tenant.  The Town Center is owned by a corporation.  Home Depot owns their own parking lot, and their building.  They have a monitor there that’s appointed as part of what was given with the Planning Board.  Camp Discovery is likewise, out on Route 129.  There are a number of them.  And I would suggest that that’s something that you bring up with the Planning Board.  They can have an outside monitor to monitor this, if they consider it to be a problem.

Mr. John Klarl the monitor would be paid by the applicant.  Camp Discovery, Home Depot we have an executed a monetary agreement, the monitor has to tell us for example for Camp Discovery number of campers in a given day, number of busses, number of vehicles and then if we think that the monitor isn’t being completely honest, Code Enforcement will go out there, but they get paid to do a certain job so the neighbors don’t have to play Code police.

Mrs. Joan Knapp asked so there’s no need for us to do that?

Mr. John Mattis responded no you shouldn’t have to do that.

Mr. John Klarl there were situations like this where we’ve had kind of an issue as to the daily impact of a given operation in the Town on the Town.  We’ve entered in monitor agreements and the applicant pays for the monitor.

Mr. Raymond Reber stated also I want to clarify you may have made the inference that in terms of some of the key terminology and definitions as defined in the SIC or in our Code are not utilized and we refer to Webster or something else.  My own use, I turn to Webster only because I wanted to get a more generic definition of industry, because it’s not clearly spelled out in our Code when they use the term industry, so I went to Webster solely for that to find out that industry means you could be making any kinds of goods or service.  That was the only point for my using Webster.

Mrs. Joan Knapp you know Mr. Reber I do agree with you because I use the dictionary all the time, but it was just that at the December meeting the Webster dictionary with no reference whatsoever to the Town Code which let itself to skewing the application to where the attorney wanted it to go.  But, I have nothing against the dictionary.

Mr. John Klarl stated one further comment a couple of times we heard tonight that the attorney for the applicant has dictated to this Board.  He advocates for his client.  He’s supposed to do that under codes of ethic.  I don’t think this Board has ever felt dictated to.  In addition, the attorney sitting in the front row here will agree he’s never dictated to this Board and he’s done the best job he can for his client over the years on different applications, and if it’s called dictation, hasn’t always been successful.  An applicant of his had an applicant withdrawn last week after a Wood memo. 

Mrs. Joan Knapp responded I do apologize for the harsh word but you have to understand as somebody who is sitting home in January and is seeing a Zoning Board meeting that happened in December, of course there was nobody here because there was no notification.  It appeared to be just dictating to you and I apologize that is not meant towards you.  That is actually a dig toward Mr. Steinmetz.  Sorry Mr. Steinmetz.  But not to the Board, please don’t take it that way. 

Mr. John Klarl stated this Board doesn’t get dictated too often.

Mrs. Joan Knapp stated and I can tell you something, the way that the Board is, by having the public hearing closed and then opening it back up again, believe me, you are not viewed that way whatsoever.  I don’t think anybody could say that somebody would stand up here and actually dictate to you what could happen.  I was merely reflecting upon the way the applicant presented himself. 

Mr. David Douglas stated I can assure you that there are enough huge egos among the members of the Board here that nobody dictates anything to us and of course 7 people in this Board, or 7 people in the community they all care about the Town.

Mr. Dalton stated I would just like the Board to really look at, and I’ve heard that most of you are going to do that the NAICS.  The connection here is when you first hear of compost and you think of worms and green, etc, and that’s what I thought too when I first heard of compost.  That’s what I thought too.  I thought it was going to be a green industry until I started to take a look at it, until I started to take a look at what kind of equipment it was, until I started to read that and understand exactly what that was and looked up the SIC and then I found the more current version the NAICS.  And, very clearly, when you hear that what was pitched is we’re going to do wood chipping.  When you take a look at the equipment, you can see that that’s a very special wood chipper.  That’s sold to the logging industry.  When you go down the list and, as I said, you read exactly what they say any one of three qualifies you as the logging industry for the NAICS and chipping’s it.  That’s why I was surprised too when I looked at this and said ‘gee, this is the logging industry.  Now I understand what kind of volume is going on here.’  It’s not your local yard chipper.  It’s not compost.  It’s not just leaves.  It is logging.  It was surprising.  I understand if they bring in leaves and only grass.  I don’t have an issue, but when they bring in logs and operate a tug chipper, that’s 8 or 10 feet wide, very clearly this is the logging industry.  That’s why, please, take a look at it.  In fact take a look on “you tube” (www.youtube.com) and take a look at the equipment in operation.

Mr. John Mattis responded again, as I said, if we determine that wood chipping is allowed.  We’re not saying that they can use something that big, we’re just saying it goes to the Planning Board and you bring that argument to the Planning Board and it’s extremely appropriate, and again, the mulching process and the wood chipping are totally separate.  We may determine that one is allowed and the other isn’t.  Both are allowed or neither is allowed.  We’re not looking at these as part and parcel of each other.  To me they’re two separate operations.

Mr. Dalton stated to make the jump from a small wood chipper to this you have to look at the equipment, that’s the use. 

Mr. John Mattis responded the Planning Board looks at the equipment.

Mr. Dalton stated that’s why it’s logging.
 
Mr. James Seirmarco stated we have looked at contractor’s yards since I’ve been on the Board, which is a number of years and the same thing always comes up, when people come to complain, to discuss what’s happening in the contractor’s yard, and it’s always “that backhoe is too big, the D-9, the bulldozer’s too big, the tractor trailer is too big, the 18-wheeler for the sander’s too big,” and those comments we take very seriously and we pass these – we have written letters to the Planning Board saying we will permit the contractor to have this contractor’s yard but we suggest that you limit size, we suggest that you put up a building to put the equipment in, we suggest many, many things.  But, we still have to interpret whether as Mr. Madison just said whether chipping is allowed at all.  The size of the equipment, we cannot consider the size of the equipment as part of the judgment, in my opinion.  It has always been the same issues that came before us in the contractor’s yard.  People always say “I live next door, and I can hear that tractor running.  I can hear that bulldozer running.  I can hear that chipper running.”  You’re not unique.  We listen to it every single time, I’m sure other Board members can connect to what I’m saying, and we take this into consideration.

Mr. Dalton responded I understand the point being on the equipment.  The point I’m trying to make is that what shows you the definition per the Federal Government applies it’s logging.

Mrs. Joan Knapp stated in December Mr. Steinmetz said that the applicant was not seeking to go into business to sell us and that it would have incidental, potential retail sale.  You know, trying to sneak in under the manufacturing with 10 employees or less.  He doesn’t really want to sell to people coming in and getting their compost for their little garden.

Mr. Raymond Reber stated I must confess I do not see this fitting into that category because I honestly believe that that was written for a totally different intent by the Town Board, because again, going back a number of years there were some issues.  To me, that’s not cottage industry but small industry.  They’re talking about relatively small facilities, manufacturing facilities, in a building; you’re making some clothing, you’re making tags, you’re making widgets, whatever, small type industrial operations of that type.  An operation like this, to me, I don’t think is at all what they intended and I would interpret that that would not cover it.

Mrs. Joan Knapp asked would they have to be highway commercial in order to sell?

Mr. Raymond Reber responded no.  They’re saying if you have a small business and you want to retail locally you can.  They just don’t want a Wal-Mart in an M zone.

Mrs. Joan Knapp commented it’s kind of approaching that though.

Mr. Raymond Reber continued that’s what they’re saying.  If that was the only argument they had and they said we want it to determine that we fit into that category, my opinion is that’s not the intent of that category.  So, I would not approve it on that basis.

Mr. John Klarl stated one item housekeeping Mrs. Knapp and the applicant’s attorney asked last night “if the Planning Board” which has an application for it now, but it’s waiting for this application to be resolved.  You’re asking whether the Planning Board has set a date for a site visit and I looked into it this morning and there’s been no vote taken to have a site visit yet.  There’s going to be a site visit if there’s a Planning Board application, but no date has been decided upon and agreed to.  You also asked last night whether or not you can go on the property.  It’s the applicant’s property, they have to get consent and we’re not aware of the applicant saying that you would not be able to attend.  But, there’s no site visit. 

Mr. John Mattis stated I would like to make a comment on the intensity of what they’re doing.  The Planning Board, if we say that this fits within the M-1, and again, we haven’t said that yet, if we do then the Planning Board can limit the number of trucks per day, they can limit the size of the trucks, they can limit the number of tons of the wood debris that comes in.  They have all those powers to do all of those things.  We’re not giving carte blanche to somebody coming in with all kinds of heavy equipment, and trucks lined up, up and down Route 9A all day with unlimited amounts of wood debris.  That’s up to the Planning Board and that’s what their primary function is.  Does that fit logically in that area?  And, is it too intense, and if it is can they cut it down?  They have disapproved some things altogether.  So, they look at all of those issues.  And, they look at the environmental issues also, which is very important.  We’re not just giving carte blanche for this to go through, if we say that it’s permitted.  If we say that, we’re only allowing it to go to the next step.  And, that’s a very, very important step because that defines all the big and little parameters of what they can do, some of the things that I mentioned the intensities and things like that.

Mrs. Joan Knapp asked there will be no determination tonight?  So, there will be no Planning Board public hearing in March, am I correct?

Mr. John Mattis responded I’d have to defer to our attorney on that.

Mr. John Klarl responded did the Planning Board give you a public hearing?  Yes, the Planning Board would have a public hearing.  It’s on the agenda, but the question is whether or not they’d go forward with it.  But, if the Planning Board has scheduled, I think they did schedule a public hearing for the March 3 meeting, there will be a public hearing.  But, that night they might open up and say we don’t’ have a determination from the Zoning Board of Appeals yet, therefore we want to adjourn it.

Mr. Raymond Reber stated not totally relevant as far as how we make a decision but just to clarify again, because there was some comments made about our neighboring communities.  If you go to the websites for Briarcliff and Yorktown, they include what they collect as logs and stumps.  I can guarantee you if you go and check with them and ask them if they’re in the logging business they’re going to say “no way.”  Also, maybe this will help some people understand a little, in our Codes if you go to what they classify as a ‘designated industrial district’ under M-1, which under M-1 remember they say they accept all MD uses and then go beyond, so then if you go back to MD, you’ll see where they describe things like ‘manufacturing processes, assembly activities provided design, construction, etc.  Accessory uses quarters for janitors, watchmen, garages, sewer treatment plants, pump houses, water houses, cafeterias, auxiliary structures, recreation facilities, auto and truck parking, loading areas, etc.’  There they give you generally what they do allow.  But, then they also give you the restrictions and they say it has to be a minimum of five acres.  It has to have an average log width of 300 feet.  It limits the coverage, the height of the buildings and structures.  It has setback dimensions which are quite significant.  So, there are a lot of restrictions.  So, it’s not like they’re going to be able to put the machines next to your yard and, in fact, because of the way the property is designed, they’re going to be forced to move most of their operations to the southern half of the property.  Again, those are the things that the Planning Board will address and those are the parameters that they have to work with.

Mr. John Mattis asked any other comments?  Does the applicant have any other final comments?

Mr. Wai Man Chin made a motion on case no. 51-08 to close the public hearing seconded with all in favor saying “aye.”

Mr. John Mattis stated the reserved decision and we had a motion and second on that.  What that means is that we have 62 days to vote on this.  So, it could be at the next meeting or possibly the meeting after that.  The public hearing is now closed.  We’ve listened to everybody.  You had nothing further to say.  They had nothing further to say.  We’ll weigh all of the evidence that we have, all the written submissions, all the testimonies and we’ll reach our conclusion and have a written decision that we’ll vote on either next month or the following month.

Mr. John Klarl responded for those who are interested in filing the application they can call us after next month’s work session and we can tell you whether or not a decision will be adopted at the Wednesday night meeting.  So, you can call us after the work session.

Mr. John Mattis stated and the work session, the next meeting is the 18th of March, that’s a Wednesday, so our work session will be the 16th.  At that time we will know whether or not we will have a decision next month.  Thank you very much everyone.

		*				*				*	

NEW PUBLIC HEARINGS

A.	CASE No. 02-09		Joseph L. Fusilli and Laura Shields-Fusilli for an Area Variance for the front yard setback and lot coverage on the property located at 18 Springvale Road, Croton on Hudson.

Mr. Joseph Fusilli approached the Board and stated I am the owner of the residence at 18 Springvale Road.  I am applying for a variance for an open front porch and for coverage.  The front porch, the zone required 40 foot of frontage.  I’m looking for roughly 12 feet for a slab and an open porch with a canopy above it and the coverage in the back is listed as a terrace, it’s actually a patio with a cover over it as well as a canopy.  It’s a patio with a covering on it, but It’s wide open on all sides with the exception of where it connects to the home, the existing structure.

Mr. John Mattis stated Mr. Reber this is your case.

Mr. Raymond Reber stated this case has a number of issues associated with it.  One is lot coverage and this takes a little explanation because recently the Town became very concerned about the issue of McMansions whereby people buy a small house, reasonable for a relatively small yard and then build and build, and build and then push to the limits.  To be honest, they felt that years ago the Code never thinking that people would buy a $300,000 home really wants to invest another $300,000 into that home, but obviously that’s happening these days because of the shortage of affordable housing.  To prevent the McMansion concept they changed the Code and put some limitations.  One of them is lot coverage.  In your case, what you’re proposing goes beyond a lot coverage.  The number as we’ve been given is that you’re allowed 2,730 square feet on your lot and you would be at 3,397 square feet which is 667 square feet above.  That creates a problem.  We’ve got to figure out ways of cutting back.  I’ve been to the neighborhood.  I’ve looked in the area.  I will confess there are some other homes in your neighborhood that probably meet or exceed the square footage you’re looking for, and that’s the very reason why the Code was changed because they concluded that if everybody kept doing that, we would end up looking like Yonkers.  We’d have houses on top of houses next to each other, and most people in our community that’s not why they moved here.  That’s why they moved here to get away from that kind of congestion.  It may be considered unfair when you look at it.  We have another case tonight where we have the same situation.  What we’ve allowed to have happen 10, or 20, or 30 years ago, whatever the case may be, they’re saying ‘no longer.’  Even though there are other homes in the neighborhood, I can’t use that as an excuse to say ‘I’m going to waive the lot coverage rule.’ The next issue is we cannot do anything to prevent you from moving to within 10 feet of the property line because the Code still allows that, even though I think it would be wrong and it would crowd the lot in that respect.  However, there is a setback for the front yard a requirement of 40 feet and you, yourself have said you want to put a porch on which would require a 12.24 or 12 and a quarter foot variance to come toward the street.  That, I also have a severe problem with for two reasons: one, I looked through the neighborhood and no one else has a porch per se.  What they have is little canopies, little entrance coveralls which are relatively small.  But, I still didn’t know what the setbacks were, so I went to Code Enforcement and I said ‘provide me the dimensions of their properties in terms of how close any of their physical structure comes to the road.’  And, in looking at the five properties in your immediate street area, they are all at least 40 feet from the road.  Some are 41, some are 42, but they’re all 40.  They all meet the setback with their current projections.  Again, if we allow you to put a true porch on the front as opposed to maybe just a little canopy to give you a little protection on your entrance, we would greatly violate the setback ruling in the front yards and we would create something that is inconsistent with the rest of the neighborhood.  We would be changing it.  My feeling is no on the front porch and no we can’t give on a lot coverage.  You take off the front porch and you’ll save some of that 600, you won’t save all of it, so you’ll have to do a little juggling elsewhere and that’s up to my colleagues here to decide where and to how they want to get there.  I think your garage actually is quite large in dimensions, one could consider particularly the width of cutting down on that to get within the square foot because if I remember your garage…

Mr. John Mattis responded it’s 26’ x 30’.

Mr. Raymond Reber stated is 30 feet, generally for a two-car garage is 24 to 26 feet.  So, if you came down to say 26’, you’d pick up another 100 square feet.  It helps get you in the right direction but again, that’s just one recommendation as to how you can start minimizing that lot coverage problem.

Mr. Fusilli stated in regards to the coverage what I did notice was that apparently the coverage the porch it’s been named, the terrace and the porch by my architect, is actually a patio and it would only be covered, a portion of it would be covered with a canopy.

Mr. John Mattis stated we’re only considering the covered portion.  The calculations.

Mr. Fusilli asked you’re only considering the covered portion in the square footage?

Mr. John Mattis responded that’s correct.  In fact, that’s what your architect, Mr. Hanson, he did the calculations and he only considered the covered part.

Mr. Fusilli asked so if I were to eliminate the canopy then that would be it?
Mr. John Mattis responded that would save 396 square feet.

Mr. Fusilli asked and in regard to the front porch, I’m asking for 12 feet.  I’m not actually going to use that in the final drawings.  I just figured I would put that in there for the time being.

Mr. Mr. Raymond Reber stated guess what?  You’re not getting it.

Mr. Fusilli stated that’s fine.  What you saw in the neighborhood and what I want to build is consistent with the rest of the neighborhood, it would be an overhang, it would be roughly 8 feet at the setback portion of the existing home and 6 feet along the rest of  it.  The front porch is only along the front of the – I just want to add that my property lines, there’s also another 8 feet from my property markers to the actual road itself.

Mr. John Klarl stated that’s irrelevant.

Mr. John Mattis stated I’ll refer you back to what Mr. Reber stated earlier.  We have five properties, 22, 21, 20, 19 and 15 Springvale Road, everyone of those is within the 40 foot setback and includes the 8 feet.  So, you’re not unique in that.

Mr. James Seirmarco asked could you live with a 6 foot porch?

Mr. Fusilli responded it would be 6 foot at the most forward part of my home.  It would be 8 foot at the setback part and the part I’m asking for the garage…

Mr. Raymond Reber stated 8 feet is much more.  Basically, the neighborhood, they just have canopies as protection for entering the house.

Mr. Fusilli responded it would only be 6 feet.

Mr. Mr. Raymond Reber you don’t need 6 feet, what are you going to do, you’re going to have three people abreast walking along the front of the house.  We’re talking about enough for one person.

Mr. Fusilli stated the front porch where I like to spend time with my neighbors and have coffee in the summer time.  I also live in a retirement community.  I speak to many of the retirees as they walk by.  I don’t think it’s out of line with the rest of the neighborhood.  It’s never going to be screened in or used as livable space.  It’s really a front porch.  

Mr. Raymond Reber responded but it’s a structure.

Mr. Fusilli responded it’s actually a slab.  It’s not a raised porch.  It’s at grade and below-grade.

Mr. Raymond Reber responded it has a roof over it.  That’s what counts.  That’s what makes it a structure, the roof.  Once you put that on there – you can put a patio wherever you want in front, that’s fine.  Just don’t put the roof on it.

Mr. Fusilli responded I can live with the 6 feet at the furthermost portion of the house.  It would be 8 feet in the middle between the garage.

Mr. Raymond Reber responded that’s still not for me.  That’s not a walk canopy.

Mr. John Mattis stated one of the things that we have to look at is it out of character with the neighborhood.  I went back there again today and looked because the more I thought about this, the more it bothered me, especially when at the work session we got the setbacks on the other properties on that street and none of them require a variance.  And then I looked at the type of front porches, if you will, and most of them are just overhangs of three and four feet.  They’re aren’t even 6 feet.  So, what you’re asking not only requires a variance, which nobody else has, but is larger than anybody else.  I wouldn’t even really consider those front porches on the other houses, they’re front overhangs.  What you would have, you would be unique in that property area on your block and you would require a zoning variance to do that.  And we have to look at many other things and one of the things is the character of the neighborhood and that would change the character of the neighborhood.  And, once we grant that to you, we have to grant that to everybody else who comes back in because we have no unique reason why you need this other than you want it.  Everybody comes here they want what they want.  Many of them have hardships and can only put things in certain places, but this will stick out and be closer to the property line and to the road than any of your neighbors.

Mr. Fusilli responded 2 feet.  That’s what we’ve scaled it back to, correct?

Mr. John Mattis asked you required a 12 foot variance and now you’re saying 6 foot?

Mr. Fusilli responded in other words 6 foot at the furthermost part of the existing structure which is where my current one-car garage is.

Mr. Raymond Reber stated and it’s 6 feet more than anybody else has because nobody else needs a variance even with their little overhang.

Mr. John Mattis stated and nobody has a 6 foot – as I said, most people have a 3 or 4 foot overhangs, I hardly even call those porches.

Mr. Raymond Reber stated they’re more architectural features because they’re not big enough to sit under or party under.

Mr. John Mattis stated that’s a good description.

Mr. Raymond Reber stated they’re architectural features really.  That’s all they are.

Mr. John Mattis stated this doesn’t blend in with the character of the neighborhood at all.

Mr. Fusilli asked so even scaled back to 4 feet at that point, would be unacceptable to the Zoning Board?

Mr. Raymond Reber responded yes, because it’s more than just an architectural feature.

Mr. Fusilli asked so then you’re not going to grant it period?  Is that where we’re at, you’re not going to grant it period?

Mr. John Mattis stated well I’m not speaking for the other Board members.

Mr. Raymond Reber responded I have no problem with an architectural feature so that on the setback side, which is…

Mr. Fusilli stated this is not a raised porch in the traditional sense of the front porch with the three steps that go up the way with wood with a porch swing.  This is really an overhang.

Mr. John Mattis responded but your roof is coming out.  That’s the uniqueness of it. 

Mr. Fusilli responded it’s an overhang yes.

Mr. Raymond Reber stated my personal opinion is, if you wanted to put on the setback side, which is a 2 foot 4 inch setback if I read your plans correctly and that’s where your front entrance is.  If you said you wanted to have a three and a half foot overhang there for architectural feature and give you a little protection by the door, that would require a one foot variance, to me that’s not a big deal for architectural feature.

Mr. Fusilli responded that’s what I need also for my garage to keep it in step with the rest of the home because the home doesn’t sit on the lot square.  So, the home is actually skewed so the addition of the garage comes out.

Mr. John Mattis asked so you need a variance for the garage?

Mr. Fusilli responded yes.

Mr. Raymond Reber I thought the garage was coming out to match…

Mr. John Mattis stated the garage needs a variance as I’m looking at this, it’s only 39.4.

Mr. Fusilli stated it’s not encroaching on my neighbor’s property lines, it’s roughly a matter of inches.

Mr. Raymond Reber stated I’m confused, I thought – because of the far corner where it goes to 39.40.  Okay, I understand now, because you’re keeping the line of the house. 

Mr. Fusilli responded I’m trying to keep that setback in the middle.

Mr. Raymond Reber responded I have no problem with that.  I could see that.  And, I could see a slight variance similar to that in front of the recessed section to give you some kind of architecture feature and protect you by the front door, but to carry that around and go to the other side of the house when you’re already at the limit. 

Mr. Fusilli responded it would be to run the length of the house.  But, it would be an architectural feature.

Mr. Raymond Reber stated but it’s still a structure.

Mr. Fusilli stated much like across the street there the neighbor has a one that goes all around the way around their house with a porch built on top.

Mr. Raymond Reber stated but he stayed within the 40 feet.

Mr. John Mattis stated but it requires no variance.

Mr. Fusilli stated they actually had to come in front of the Board last year when they sold the home if I’m not mistaken. 

Mr. John Mattis stated no they didn’t.

Mr. Fusilli stated there was a public hearing notice in front of the home. 

Mr. John Mattis stated not in front of the Zoning Board.

Mr. James Seirmarco asked give me a reason for the garage being that big.  It’s 30’ x 30’. 

Mr. Fusilli responded it would be for two cars and some storage.  I have a child.  I would like to be able to put bicycles in there, snowboards, or whatever else.

Mr. James Seirmarco stated even with a two-car garage, a big garage these days is 24’ x 24’ so I’m having trouble with the 30’.

Mr. Fusilli stated it would be two cars and storage.  I have a motorcycle and I’d like to be able to put my motorcycle in it.  It’s just a garage.  

Mr. John Mattis responded but it then causes you to exceed the lot coverage.

Mr. Raymond Reber stated a big problem is the lot coverage.  If you didn’t have a lot coverage problem we could also argue you’re going too deep.

Mr. Fusilli responded if you scale me back on my front porch and I eliminate the canopy, then there is no lot coverage issue, am I incorrect in that?

Mr. John Mattis responded well we’d have to calculate that.  But, let me ask you a question on the back terrace, whatever you call it.

Mr. Fusilli corrected it’s really a patio.

Mr. John Mattis continued it’s a patio, is that at grade level, or is that raised?

Mr. Fusilli responded no, I had a just slightly above-grade existing wood deck there.  That was the same size.  When I applied for the original construction permit, I also applied for a demolition permit for it, I have demolished it, it was rotted, I tore it apart, it was a safety issue.  That is currently gone.

Mr. John Mattis asked and this would be a cement slab?

Mr. Fusilli responded it would be a cement slab with tile on top of it.

Mr. John Mattis asked and how high above-grade will it be?

Mr. Fusilli responded it’s going to be at grade, literally at grade with two steps up to my existing rear media room.  It’s a patio.

Mr. James Seirmarco stated I don’t think you’re there.  600 square feet over, so you’re about 450 now.  We probably shouldn’t do the design here but you can understand where we’re coming from.

Mr. John Mattis stated you’re allowed to have a 10’ x 10’ shed in your backyard.  You can store equipment there.  That eliminates the necessity for a 30 foot wide garage.  When we’re granting a variance for lot coverage for a garage that’s above the norm – when we’re granting a variance for lot coverage and we’re saying we’re giving you a garage that’s much larger, 24’ x 24’ is the standard and some are smaller, and you’re asking for 26.183’ x 30’ I don’t see how we can justify giving a lot coverage for a garage of that size, I really don’t.  There’s no justification for us to do that.

Mr. Fusilli responded so in other words, if I eliminate the front porch…

Mr. Raymond Reber responded if you eliminate the front porch you gain 420 feet or so.

Mr. Fusilli continued and I eliminate the canopy, the patio isn’t an issue, it doesn’t count towards the coverage, am I incorrect in that?

Mr. Raymond Reber responded your open porch is what dimensions here?  

Mr. John Mattis stated the front porch is 543.  You eliminate 939 square feet.

Mr. Raymond Reber responded if you get rid of the canopy in the back and you get rid of the porch you’re going to make it, I think, I’m pretty sure you will.  Because the front porch is 40 feet long, so you take off 12’.

Mr. John Mattis stated well it’s shown there.  The dimension is 543 for the porch, and the dimension is 396 for the back porch.

Mr. David Douglas stated instead of us micro-managing him why don’t we ask if the applicant wants to come back next month.

Mr. Fusilli stated I would like to get this out of the way now if it’s okay with you.

Mr. David Douglas stated the sense of the Board I’m hearing, and I agree with a lot of what Mr. Reber said, I’m not sure that we would grant you the variance that you requested.  I would personally prefer, rather than us designing your house, that you design it.

Mr. John Klarl asked talk to a professional?

Mr. Fusilli responded I’ve already talked to a professional architect and had the drawings, if I have to eliminate certain things that you won’t give me a variance on we can do that now.  If I don’t touch anything on the garage, the only variance I actually need then, if I’ve eliminated my canopy over my rear patio and eliminated my whole front porch, then the only actual variance I need is the 11 or so inches I need in the corner of the garage.

Mr. John Mattis asked are you willing to do that?

Mr. Fusilli stated whatever it takes.  I’d like to move on with my project.  If I have to eliminate the canopy.

Mr. David Douglas asked this would still be the 30 foot garage?

Mr. Fusilli responded yes.

Mr. David Douglas asked why?  We turn those down every month.

Mr. Wai Man Chin stated setback requirements except for that 11 inches.

Mr. Raymond Reber stated what we tell him is that he has to cut the square footage of the coverage.  He can do it any way he wants.

Mr. David Douglas asked I’ve gotten confused here with all of the changes.  Would he need a variance…

Mr. John Mattis responded he would not need a front yard variance for the porch.  He would not need a lot coverage.  All he would need is 0.6 roughly, or we can say ¾ of a foot for the corner of the garage.

Mr. Raymond Reber stated I know where David is coming from.  What you’re saying David is if we say no variance on the setback to the garage, we force him to shrink the garage to get within the 40.

Mr. David Douglas responded exactly and we do that all of the time.

Mr. Raymond Reber stated you’re right, that’s a good point.

Mr. John Mattis stated but he can cut out a notch into it.

Mr. Fusilli stated I could dig it back if I have to.

Mr. David Douglas stated that’s fine.  So, he has an alternative that he can do and he doesn’t need a variance and that’s one of the factors under the Code as well.

Mr. John Mattis stated that’s correct.  It’s a very good point.  One of the things we have to look at is can you do what you want with little or no variance.  No variance being the predominant.  If you cut back that 30 foot width, which we consider excessive, to the point where you’re at 40 feet, you do not need a variance.

Mr. Wai Man Chin stated it’s not the 30 foot width, it’s the 26 foot depth.

Mr. John Mattis responded no it’s the 30 foot width that brings it…

Mr. James Flandreau responded you could remove a section of both and convert it, you can move the garage back a couple of inches and still make it in a setback which would require a variance.

Mr. Wai Man Chin stated 30 foot width is still within a 10 on the side yard setback.

Mr. John Mattis stated no the corner is 39.4 feet from the front.  If he cuts part of that off because it’s angled, he won’t need the variance.  And, that’s what we shouldn’t do.  I would rather you come back to us with something.  I don’t want to tell you how design this.

Mr. Raymond Reber stated for the Board’s sake though, let me clarify, if you look at these plans, note the dimension on the corner of the garage adjacent to the house.  There is a line there that says 27.76.  The porch coming off the line of the house is supposed to be a 12 foot dimension look above that where they have the 12.  So, you add the 12 to 27 and you get 39.76, which means he doesn’t make it even then.  So, theoretically if we turn down a front yard setback for the garage, he can’t build any garage unless he moves it back, but he only has to move it back 0.6 feet and then he can build it without a variance.

Mr. Wai Man Chin stated 6 inches.  He doesn’t have to remove the 30 foot, he just have to move it back another 6 inches and that’s it.

Mr. John Mattis stated the house without the porch is indented a little bit, he can bring it back so that it comes straight out from the house there and he doesn’t need a variance.

Mr. Raymond Reber stated or halfway if he wants some architectural feature he can still come partway.  He’s got to come back six tenths of a foot which is about 7.5 inches.

Mr. Wai Man Chin stated he doesn’t have to reduce the size of the garage.

Mr. Raymond Reber responded just move it back a little.

Mr. Fusilli responded if I move it back, it won’t be in line with the rest of the home, therefore we ruin the esthetics of it, however, if you deem it solved, I will move it back.

Mr. James Seirmarco stated no you don’t understand, it’s not our choice whether – what we’re saying is you need to facilitate the setbacks being not required, a variance with a setback not required, how you do it is up to you.

Mr. Fusilli responded I’ve eliminated my front porch so far, and I’ve eliminated my canopy over my rear patio so therefore the only thing I’m now asking for is the 11 or so inches I need for my garage in the frontage, so if you’re claiming that you want me to shrink my garage, which I definitely don’t want to do, because I’d like to have the storage space.  Then, if you’re not going to grant me the variance for that either, I’ll have to move my garage back, make my home not look very appealing to me.

Mr. David Douglas responded esthetics isn’t something that we can consider.

Mr. Raymond Reber asked this is your plan right?  As I see the way that garage is built, if you move it back 7 inches, you still have an off-set and because of the roofline and the way it’s designed, it’ll still look pretty much the same and nobody will hardly notice the difference.  Sorry, don’t give me a lecture about ruining the architecture the way it’s designed, you can move it back 7 inches and still have the off-set and have the same look.  Sorry.

Mr. James Seirmarco stated there’s no variances required here.

Mr. David Douglas stated and if you do that you won’t need a variance.  And, you can just go ahead and build.

Mr. John Mattis asked can you just withdraw the case?

Mr. Fusilli responded all I’m asking for a variance?  Will I get a decision or a vote tonight, or no?

Mr. David Douglas stated if you want us to vote on the variance that’s fine with me, I’m going to vote against it.  I can’t speak for anybody else.

Mr. John Mattis stated well we’re not going to poll the Board.  Do you want us to vote whether we’d give you a variance or not?

Mr. Fusilli responded yes, I would like a vote this way I know where I stand.

Mr. John Mattis stated if there was anyone in the audience with any comments.  No one responded.

Mr. Raymond Reber made a motion on case 02-09 to close the public hearing seconded with everyone voting “aye.”

Mr. Raymond Reber made another motion on case 02-09 to deny the request for an area variance for the front yard setback from an allowed 40 feet down to 27.76 feet and an area variance for the lot coverage from an allowed 2,730 square feet to 3,397 square feet and also deny a request for a variance from 40 feet down to 39.4 feet for the garage.  This is a type II Seqra, no further compliance required.

Mr. John Klarl stated there’s no type II if we’re designing it.

Mr. Raymond Reber stated it’s not an issue.

Mr. John Mattis stated do we have a second, seconded by Mr. David Douglas with all in favor voting “aye.”

Mr. James Flandreau polled the Board -- Ray Reber; ‘aye’ in favor of the denial, Adrian Hunte; ‘aye’ in favor of the denial, David Douglas; ‘aye’ in favor of the denial, Jim Seirmarco; ‘aye’ in favor of the denial, John Mattis; ‘aye’ in favor of the denial, Wai Man Chin; my opposition is only for the front yard setback of the garage from 40 feet down to 39 feet.  That I would have given as a variance.  So, no; Charles Heady; ‘aye’ in favor of the denial.
Mr. John Mattis stated that the vote was affirmative 6 to 1 to deny, so your variances are denied.

B.	CASE No. 03-09		Robert and Jill Young for an Area Variance for the front and side yard setback on the property located at 10 Frances Drive, Montrose.

Mr. Robert Young approached the Board and introduced himself as owner of 10 Frances Drive in Montrose.  I currently have a house with a sun porch and a carport.  I don’t know if any of you have gotten the chance to see the property.  If I can I’d like to give the Board a couple of pictures of the sun porch and the carport.  I’d also like to present the Board a letter from my neighbor at 8 Frances Drive.  If I can give the Board an original letter from my neighbor Mrs. Blessing at 8 Frances Drive saying that she doesn’t oppose to the project at all.

Mr. John Mattis asked is that the neighbor on the direct left as we look at it?

Mr. Robert Young responded yes that’s correct.

Mr. John Mattis stated while you’re handing out the pictures we have a letter ‘to whom it may concern,’ and this is from Maria Blessing at 8 Frances Drive, as the applicant said, he is the one that is affected on the side of this variance on the left side of his property.  The letter says: “this letter is in regard to my neighbors Jill and Robert Young and their construction project.  I understand they will be remodeling their sun porch and adding a garage next to my property line.  I know the garage will be approximately 3 feet from the property line, I also know that their garage will not be set back as far as Code requires from the road and that they are requesting a variance for these two matters.  I have also seen the plans for the project and I have no objection at all to it.  Sincerely, Maria Blessing.”   And, it was dated the 17th of February.

Mrs. Adrian Hunte stated that was going to be one of my questions whether we had any information from the neighbor because this house is in that picture.

Mr. John Mattis asked if Mr. Young had anything else to present or say?

Mr. Robert Young stated I don’t know if any of you have carports or what you think of carports.  I don’t like my carport.  I don’t like what it does for the neighborhood and I’d like to improve it.  I don’t think I’ll be changing the footprint of the building on the property very much.  There’s the garage is going to be exactly where the carport is now in the kitchen that I’m going to plan is going to be exactly where the sun porch is now, that doesn’t need a variance but I think I’m only going to be improving the neighborhood with a coherent architectural plan instead of a tacked on sun porch and carport.

Mr. John Mattis stated Mr. Chin I’ll let you begin.  It’s your case.

Mr. Wai Man Chin stated  I remember this case.  Back about maybe almost15 years ago when we did give a variance for the carport.  From the photos that you showed and also the photos that we saw at the work session yesterday, the house next to you, which we just got a favorable letter is approximately the same distance to the property line as what you want to propose.  Because of that and what you want to do with that carport, and looking at the plans, I didn’t see a problem with it.

Mr. Charles Heady stated I also looked at the pictures and the variance that he wants, and the neighbor sent a very nice letter and their in favor of it, then I would be in favor too because the neighbor feels that way, I would feel the same way.

Mr. John Mattis asked any other comments from the Board?

Mr. James Seirmarco stated I don’t have a strong opinion about this, it’s just a concern that when right now there was a safety issue, if somebody happen to get into the backyard, you can run through your carport, the firemen, or the policemen can run through your carport and get to your backyard.  If you’ve got a garage there, now you’re going to create a very narrow alley way to get to your backyard.  This is a slight concern of mine.

Mr. Robert Young responded I have personal knowledge, I’m a sergeant with the State Police and wouldn’t have a problem running through an area like that.  We do that all the time.  It’s not a difference of a carport or not.  The car would be in the carport and that would cause just as big a barrier to run into as a garage would.  I understand your concern though.  It’s an honest concern.

Mr. Raymond Reber stated I have some issues with the project.  I grew up that street.  My family was one of the original owners of one of the houses on that street.  One thing that we noticed in the early years because there wasn’t a Code that was restrictive and this happened with us, with both of our neighbors, one directly on our side, one on the opposite side of our house, decided to do the same thing, they built a big addition, garages and went almost to the property line within two feet.  There’s a number of those including the neighbor of our applicant who did that.  This was done many years ago when the Code was a lot looser, fortunately, no two contiguous lots have done that to the point where you have what is being proposed here which is maybe 4 feet, 5 feet spacing.  To follow up on what Mr. Seirmarco questioned, it’s one thing to think about it today, but tomorrow this applicant has a battle with his neighbor and they get angry with each other, their kids cross the line or whatever, they put up a fence, now you’ve got a fence right down the middle of that little space.

Mr. Wai Man Chin stated well they do have one right now.

Mr. Raymond Reber responded and they decide maybe to put a hedge next to the fence, because it’s not good enough.  Lots of things could happen that could basically say that you can’t get through there.  And, we can’t stop that once the structure is there.  As far as carports and garages, in that community of Montrose, the homes that were built back in the 50’s and 60’s we’ve had a number of cases including a couple, I remember on Dutch Street, where people have come to us and they wanted some protection for their car, and we granted carports that came close to the line, similar to what the applicant currently has, but in each case we were very careful to explain to them that it was strictly an open structure.  We weren’t interested in them closing that in and basically blocking off the lot.  My concern is, I’m not saying he has to live to the full 10 feet, but I sure would like to cut down the variance and maybe say that the great room, which is really the expansion of the kitchen be reduced.  The house has raised several families in the last 50 years without the great room, so to me it’s not a life and death issue, this house is not usable for a family.  To me, we’re setting a precedence.  This would be the first time in this neighborhood where we’ve allowed two neighbors and granted the others were allowed, but many years ago, to build closer than 10 feet to the line, so that they’re both within 2 or 3 feet of the line.  And, if we set that precedent, that means up and down the street, anybody else comes along, they can argue for the same thing.  And, if that happens, what have we done?  We’ve basically allowed to change the character of that neighborhood in a way that the Town said ‘let’s not do that.  Let’s not keep giving variances so that we basically have contiguous homesteads all the way down the street.’  So, that’s my problem, and I would vote no for the size of this variance for that reason, on the side yard.  The front yard is consistent with the way the houses are lined up and it’s been that way for years so I have no problem with the variance on the front, but I do have a problem with that bigger variance on the side.

Mr. Wai Man Chin responded back in 1995, again, when we did give the variance for the carport, the carport was 2 feet from the property line.  Now the garage is going to be 3.7 feet from the property line, which is making it almost twice as wide as it was before. 

Mr. Raymond Reber responded but the variance they want is 6.3 which is 2/3 of the setback.  Look at it from that angle.

Mr. Wai Man Chin responded I understand, but it’s still a lot less than what it was given.

Mr. Raymond Reber responded but they’ve got a carport.  It’s open, it’s all open space.  You can drive a truck through there.

Mr. Wai Man Chin responded I disagree on that point.  There’s still a post there, it’s a variance was given as 2 foot, now he’s going to 3.7, it’s almost twice as much.  I still don’t have a problem with this.

Mrs. Adrian Hunte asked the footprint is still the same with the garage as it is for the carport?

Mr. Robert Young responded it’s actually a little bit smaller.  We’ll be opening up the space, like Mr. Chin said, by 1.7 feet.

Mr. Wai Man Chin stated almost 2 feet.

Mr. David Douglas stated I share Mr. Reber’s views.  I just don’t have the firsthand experience of having lived on that street.  But, I think he articulated the concerns very well.  My only hesitation is we did grant a variance for the carport.  I wish that the Board had not done that, obviously that predates my being on the Board, but there is a difference between an open carport and a closed garage.  That’s my hesitation which Mr. Reber articulated.

Mr. John Mattis stated I’d like to comment on that also.  One thing that we’re not considering, we don’t have anything in the plans here.  What is the height of your garage that you’re proposing?

Mr. Robert Young responded I don’t know the exact height.

Mr. John Mattis asked the height of the garage to the peak, to the roof?

Mr. Wai Man Chin asked why is that an issue?

Mr. John Mattis responded it’s an issue with how it looks and the coverage and how it blocks everything out.  And, I’ll explain.  What we granted was a carport.  It had two posts that were 2 feet away with a flat roof that I’m going to say is 10 feet maybe, and that still has the appearance of a wide open space.  Now, you’re going to put a solid garage, and you’re going to put a roof that probably is 4 or 5 feet higher, and if it goes over 14 feet, you can’t go over 14 feet unless we give you a variance.  I’m sorry, it’s part of the main structure, you can go up.  Now, all of a sudden you’ve got a solid structure and where it looked wide open, it does not look wide open.

Mr. John Klarl stated the height still affects the look. 

Mr. John Mattis stated the height does affect the look and it really closes in that open area when you have something solid with a much taller roof, and as far as the side yard variance the 3.7 feet, well maybe it is almost twice of what you had, but you can argue that if you had a 2 inch variance and you go to a 4 inch variance, or a 6 inch, you have two or three times as much, you’re further away.  But, I think Mr. Reber made a very good point.  It’s 6.3 feet.  That’s a 63% variance.  We allowed the carport.  I was on the Board at the time, and we allowed it because it didn’t have a roof that went up, it was a flat roof, so you had a slab that was maybe a foot thick and you had two poles on the side and it gave a very open appearance.  That is not the case now.  If you came in and asked for this and didn’t have the carport, I don’t think it would even be considered by most of the people on this Board.

Mrs. Adrian Hunted stated since we did allow a variance for the carport, I don’t believe that this would produce an undesirable change in the neighborhood.  In fact, it appears to be an enhancement and nor is it a detriment to the nearby property as we have a letter from Ms. Blessing who appears to be in favor of it, so she won’t have to look at whatever’s exposed with the carport openness.  Also, I don’t think that there’ll be an adverse impact on the physical or environmental conditions in the neighborhood of the district and I don’t think that you have too many reasonable alternatives in order to achieve your goal.

Mr. Charles Heady asked suppose you made the variance a little bit less. I don’t know if you’d be able to handle it though less of a variance to put that in there. 

Mr. Raymond Reber stated they can cut back on the size of the great room.  Like I said, that house was there for 50 years without the great room.  There was a kitchen and then there was an open porch area, and they raised families and lived there for 50 years that way.  All of sudden now they need that big of a great room.  I’m saying ‘okay, you take part of it, and expand the kitchen.  Make it a bigger eat-in kitchen room.’  But, who says it has to be that big?

Mr. John Mattis stated I go back to Mr. Reber’s comment ‘this is the only one that would have two closed in structures that close together.’  Unless we can find a particular reason why this is unique, we’re going to have to grant them all the way up and down that neighborhood.  And, that will certainly change the character of that neighborhood.

Mr. Raymond Reber stated and then you will change the character of the neighborhood and you will reduce the value of the homes in that neighborhood if the houses are all 4 to 5 feet apart.

Mr. John Mattis stated and the reasonable alternative is a smaller great room.  There are alternatives.  We’re supposed to either minimize or eliminate variances and again, we granted a carport on Dutch street and I think that was 5 feet, 4 or 5 feet from the property line, and we’ve stated very clearly ‘we are giving you a carport because that is an open area and it looks open, we do not want anything closed in there and made it very clear that if they came back later and tried to close it in or wanted a garage we would not entertain it, we would vote it down immediately.  There’s a big difference between an open carport with a 10 foot flat roof and a closed in structure that has a roof that could go as high as the main house and really closes that whole thing off and gives the appearance that it is much closer than what it is today, even though it’s another 1.7 feet further from the other property.

Mr. James Seirmarco stated again, I don’t have a problem with this if you tried to reduce the great room a little bit and tried to get to maybe 5 feet away.  I would have no problem with that.  If you think that’s possible to do, that’s fine.

Mr. George Mouse introduced himself and stated that’s my son-in-law.  We did reduce that porch in order to put that garage up like that.  The existing porch is larger than that little kitchen that we put on.

Mr. Raymond Reber stated yes, but the porch doesn’t violate any setbacks other than the front because it’s contiguous, but our problem is when you go to the end.  What’s in between is really up to you how you utilize it.  All we’re saying is that if we push the garage over, we understand you need the width for the garage otherwise you can’t get cars in it, so the only thing you have to yield would be the great room, compromising some on the great room.

Mr. George Mouse stated it’s going to make that room completely too small than for the kitchen.

Mr. Raymond Reber responded it’s been a kitchen for 50 years, an eat-in kitchen.  There is no dining room in that house for 50 years. 

Mr. George Mouse stated I realize that, there’s no dining room in that house really but with three kids…

Mr. Raymond Reber responded I know families that have had three kids and raised them in that house.

Mr. George Mouse stated I know because my brother-in-law lives right next door to him.

Mr. Wai Man Chin stated if you look at the elevation, the garage is peaked towards the middle from the side and also from the house, and from what I see it’s less than half the height of what the existing house is now.  To me, that’s still quite open to next door.  What they’re saying by reducing it -- the kitchen that he has right now is about 9 foot wide, the garage is 12 foot 8 on the outside.

Mr. Raymond Reber stated if they ask for a 4 foot variance on 10 feet, which means they’d have to give back 2.5 feet, I could go for that.  And, 2.5 feet means instead of that dimension to the center line of the window, you’ve got that whole room it’s 10 feet 6 to the left, it’s 12 feet 7 to the right, I’m saying if you drop that 12 feet 7 to 10 feet, roughly the same as the other side, you then get within your setback of only really requiring a 4 foot variance and it adds another 2.5 feet on the side, which I think that’s doubling the space there and I think that’s significant in terms of trying to look like it’s open.  And, I don’t think that’s a major change, and yes it will require a slightly different layout in the kitchen but there’s still going to have a significantly bigger kitchen than they’ve had in that house for some 50 years. 

Mr. Charles Heady asked you think you could work with that, the dimensions he said to cut the variance down?

Mr. John Mattis stated you could ask for an adjournment until next month, and you can take into consideration what we’ve said, you can talk to your architect and you can see if maybe you can whittle this down a little bit and come back next month.

Mr. Robert Young responded yes, the only thing I’d like to say about that is we’re not, Mr. Reber with all due respect, we’re not making a colossal great room.  It’s not a huge space.

Mr. Raymond Reber stated we understand that, the issue is the numbers on the variance.

Mr. Robert Young stated I’ve heard you sir that you comment about the fact that plenty of families have grown up there with the existing space, and I’m sure that’s true but that space reduced by 2.5 feet might not be worth it.  Right now, the dining room area that we might call the dining room area is the existing kitchen, so to squeeze that kitchen over will just be taking that 2.5 feet away, not from a great room but from a kitchen.

Mr. Raymond Reber responded I sympathize with you but again, people come to us all the time with wanting nice things.  They want entranceways for their front doors so that they can get out of the rain without walking right into their living room, but they need a variance like you heard earlier, the gentleman wanted the porch.  Yes, it’s nice, I’d like to have that too, but you know what, if you buy a home and it has certain restrictions then you’ve got to live by them, because that’s the way the Town is set up.  I understand what you’re trying to do, but those are not parameters that, just like esthetics and other things, are not parameters that we can take into consideration.  My colleague here explained some of the factors that we can consider, but esthetics, and what you’d like, and it would work better for us, we understand that, but unfortunately that’s not an issue.  The issue to us is you’re supposed to be 10 feet from the property line.  The question is how much of that should we give up?  Often, if people have a good argument and it doesn’t change the character of the neighborhood and all of those factors, we give a foot, we give 2 feet, we give 3 feet.  You’re asking for 6.5 feet on 10, that is a major off-set.  All I’m asking is to say ‘I have a hard time justifying it just because you want that much bigger room from what currently exists from currently what you purchased.’  Now, I don’t think when you purchased the house there was any real estate agent that guaranteed you that after you can purchase it you can change the carport to a garage and you can put a great room on.  I mean, that’s the facts of life.  I’m willing to say, personally, maybe my Board will overrule it and say you can have it all 6.3.  I would like to see that down to 4, less than half of the variance, and then I’d say ‘okay, I’ll give in, because of some of the other factors on the street and the fact that people have encroached and because of what you’re trying to do.  You can tell me all of the things you want about how it’ll work out better and everything else, but it comes down to that number, and that’s what we have to look at and why do we conceit it.

Mr. John Mattis stated it’s rare that we give a variance more than 50%.  It’s very rare.  Two things I’m concerned with: we did give a variance for more than that because it’s an open carport, and I think it’s evident to anybody who goes there and looks at it that it still has that look of openness to it.  You can see front to back right through it, it’s a flat roof, there’s a lot of open space above it.  The other thing that I’ll get back to is what Mr. Reber brought up ‘what do we say to all the other applicants if they come forward on your street?’  We have to grant them the same thing.  Every case that we decide on sets a precedent for the next case that comes in and now what we’ve basically done if we approve something with a variance this large is basically approved it for virtually everybody else on that street, and we’re going to come up with some others where properties are close to the property line and another one bucking up against it, and then we’re going to have a neighborhood of properties where they butt up against each other.  And, that’s one of the things that we have to be concerned with, because we’ve basically re-written the Code then.

Mr. John Klarl stated Mr. Chairman, in a recent case in the appeals division called Bassano vs. Town of Carmel Zoning Board of Appeals it’s a Town that’s not far from here.  There was a case, and the appeals division said that in this zoning case, the Zoning Board had found on three prior occasions that the requested variance would not produce an undesirable change in the character of the neighborhood nor would it be a significant detriment to the nearby properties, further the Zoning Board had determined that the requested variance was not substantial, the benefit sought could not be achieved by other methods and that it would not produce an undesirable or adverse affect on the neighborhood, therefore the Court held the appeals division second apartment, the Zoning Board’s action and subsequently denying the application on the same facts without explanation like the rational basis it was arbitrary and capricious.  So, it’s a November case, and it said three times the Zoning Board of Appeals in the Town of Carmel went one way, the fourth application they didn’t, and they said the Zoning Board of Appeals was now, arbitrary and capricious.

Mr. John Mattis stated and that’s what concerns me because we’d be arbitrary and capricious if we turned down any other one on that street and that’s a very dangerous precedent.  And, I’d like to say that I want to give you what you want but we’re bound by the Code, we’re bound by the test of various things we have to look at, and the Code is there to protect the Town, and we’d have this arbitrary and capricious – if we turned down the next guy that wanted the exact same variance on your street, we couldn’t turn it down, and then we’d have to grant them up and down the street.  And, there’s no uniqueness in this that would eliminate the fact that every other one coming behind you would be different.  If there were separate set of circumstances that were applicable only to you and not anybody else on that street, then you’d have a much better case.

Mr. James Seirmarco stated there is something unique, and I think the uniqueness is that we granted a 2 foot variance, down to 2 feet for a carport.  So, now the applicant is proposing that we reduce it to 3.7, so that’s somewhat unique.

Mr. John Mattis responded I was on the Board that time and I wouldn’t have granted a 3.7 foot if it were a garage.  We only considered it because it’s an open carport with no real roof above, except for a flat roof above it.  That’s what makes that variance unique.

Mr. Raymond Reber stated and we’ve distinguished porches, open porches, garages, canopies, a lot of things more liberally than when you close it in with heating and electric and all the rest of it.

Mr. Wai Man Chin responded it depends on the situation.  I understand that, but Mr. Young would you want to adjourn this and think about maybe with your architect, and see if you can come up with some kind of other solution based on some of the Board members of what you heard and so forth?

Mr. Robert Young responded yes, Mr. Chin I would thank you.

Mr. John Mattis stated we’d like to work with you on this if we could.  We don’t want to deny outright everything, but if we can work with you to get something that works, it doesn’t set a bad precedent for the neighborhood.

Mr. Robert Young stated I understand you don’t want to design my house, I got that point perfectly before.  But, what I understand you’re saying is you would definitely, you would consider a 4 foot variance?

Mr. David Douglas responded we would consider it.  I don’t want us to be pinned in that we would necessarily grant it, but you’ve heard some more favorable comments about that.

Mr. Wai Man Chin stated there were people that didn’t have a problem with it, there were people that had a problem with it, and then there’s people who would go to a certain point.  This is up to you now to try and come back with some kind of solution where it might be acceptable for everybody.

Mr. Robert Young stated forgive my ignorance for researching this before hand, what’s required for a variance, a majority?

Mr. David Douglas responded four to three.

Mr. John Mattis responded actually four votes.  I call it a super majority.  If we have four people here, we have a quorum, you’d need a unanimous vote, you need four favorable votes.  I think we had four once, we’ve had five or six sometimes.  And if it looks like it’s a close vote, I’d generally ask the applicant, as yourself, if you come back next month and for some reason only four of us are here, and you’re not sure you’ll get the four votes, we’d let you adjourn it until we had a full Board and give you a fair chance.

Mr. John Klarl asked it’s obviously tougher to get four to four than four to seven.  So, the Chairman does have that policy and the Town has that policy.

Mr. Robert Young responded thank you.  I’m not going to take up any more of your time.  I’m just going to get an adjournment if that’s okay.

Mr. Charles Heady asked do you want to adjourn to the next meeting then?

Mr. Robert Young responded yes please.

Mr. John Mattis asked Mr. Flandreau would you help coordinate and he could bring it back and go over it with you?

Mr. James Flandreau stated yes if you’d like to stop in the office, or give me a call.

Mr. John Mattis stated and then if we could have possibly a revised plan for next month, and that meeting is the 18th, it’s the third Wednesday.

Mr. Wai Man Chin made a motion on Case No. 03-09 to adjourn to the March 18th meeting, seconded with all in favor saying “aye.”

		*				*				*	

EXISTING CLOSED DECISIONS.

A.	CASE No. 33-08		James Meany to re-open an existing case and requests an Interpretation that rock crushing was included in the interpretation made by the Zoning Board of Appeals for Case No. 33-08 on the property located at 5714 Albany Post Road, Cortlandt Manor.

Mr. John Mattis stated we have a request to re-open this case for an interpretation.  

Mr. John Lentini approached the Board and stated I understand from a letter that I received from Code Enforcement that there was a question about whether your decision had allowed us to crush rock as well as concrete debris.

Mr. David Douglas asked Mr. Lentini to identify himself for the record.

Mr. John Lentini stated his name and stated I’m the architect.  I appeared here before on August 20th and explained our operation.  You’ve heard a lot about definitions tonight and I’m not sure this isn’t one of them, or perhaps we don’t have a problem even.  I’m sure you’ve heard of our world being called a third rock from the sun, we have no intention of crushing rock at all.  Rock is bedrock, it’s ledge rock.  What’s being crushed is stone and they’ll refer to blasted rock or shot rock, but essentially concrete debris when it’s being excavated, when it’s being for instance with this Route 9 as our immediate focus, they’ll bulldoze it and it will be piled up with a bunch of other debris and it includes reinforcing steel as well and possibly plastic furniture that was used to form the whole thing.  In terms of our ability to conduct business, we would need a yard to keep the equipment and do a certain amount of crushing on the yard, but it’s not limited to that.  In this particular case it might be more receiving than it is where we would go out and bring out the material and crush out of site.  In any event, it seems to me as it was once considered by the Board, all the characteristics of any one of perhaps as many as four special trade contractors, a 17-71 is concrete…

Mr. John Mattis interrupted excuse me before we go on, legally you have to ask us to re-open this case and you need a unanimous decision to do that.  We’re getting ahead of ourselves.

Mr. John Lentini asked if I asked to re-open the case I suppose we would need to open the public hearing again?

Mr. John Mattis responded yes we could re-open that and we can vote on that.  We got ahead of ourselves and that’s my fault, I apologize.  Can we have a motion?

Mr. Raymond Reber made a motion on Case No. 33-08 to re-open the public hearing.

Mr. James Seirmarco interrupted on the motion I think the Board’s intention was to just as Mr. Lentini has just said to grant a variance for crushing concrete.  Concrete is a unique material.  It consists of aggregate and cement, and sand, and water.  When you now ask us to amend that to include crushing rock.

Mr. Lentini responded actually I’m not asking for the amendment.  My presentation last time was we’re crushing stone.  Rock is the mountain, it’s the Rock of Gibraltar, it’s our whole planet.  It might be just a matter of semantics but we’re crushing concrete and stone materials, and earth materials anything that would be mixed in with the concrete. 

Mr. John Mattis asked so it’s primarily concrete but stones could be mixed in with it?  It’s not stones separately per se?

Mr. Raymond Reber asked how can we discuss this if we haven’t re-opened the case?

Mr. John Mattis stated we vote to re-open it or we vote not to re-open it.

Mr. David Douglas asked before we vote though, what is the issue before us?

Mr. James Seirmarco stated that’s what I’m trying to clarify here.

Mr. James Flandreau asked was stone included with...was rock included with the interpretation that was given back in August 2008?

Mr. James Seirmarco added let me reiterate what I said concrete consists of rock or stone, those are synonymous.

Mr. Lentini responded no they’re not.  Rock is composed of stone and in some cases you can say a stone is a piece of a rock.

Mr. John Mattis stated now we’re getting back into the debate.

Mr. Wai Man Chin asked are we going to open the case or not?

Mr. John Mattis asked for a motion to open the case.  We discuss that afterwards.

Mr. David Douglas stated my vote on that will depend on what issue we’re opening it for.  I don’t know what the issue is.

Mr. John Mattis responded the issue is what’s on the application here.

Mr. Raymond Reber stated the DNO says this is an application for the interpretation whether demolition/distribution of concrete aggregate is a specially trade contractor, we made a decision favorable so now they’re opening it up because they want further definition or expansion of that.  If they’re happy with that, then we don’t have to re-open it.  I gather they’re not happy with that, they want to expand it.  Whether they call it stone, rock, pebbles, plastic, it doesn’t matter.  The point is they want to have us explain further and maybe expand what is meant by concrete aggregate.  That’s what the case is.  

Mr. David Douglas responded I don’t know that’s what they’re wanting because our fact sheet said that they’re requesting it be re-opened to interpret of the crushing of rock was included in the interpretation that we approved. 

Mr. John Mattis responded that is what the application is before us that we’re voting on to re-open.

Mr. David Douglas stated I’m not sure that’s what he just said.

Mr. Raymond Reber stated if Mr. Lentini is satisfied with what is written here ‘demolition/distribution of concrete aggregate,’ we don’t have an issue.

Mr. Charles Heady stated right, we don’t.

Mr. John Mattis stated then we don’t have to re-open it.

I didn’t initiate this.  I just got a letter one afternoon.  Nobody discussed it with me that we’re no longer approved.  We didn’t ask for this.

Mr. John Mattis asked Mr. Flandreau could you explain how this came about?

Mr. James Flandreau responded Ed Vergano, the Director of Technical Services told me to put together this application on because there was some confusion with if stone, rock, whatever you want to call it was part of the decision in order that the Zoning Board did…

Mr. John Mattis responded a decision in order is generic or an interpretation is generic.  You can’t force the applicant to come back in.  You either make a determination that they can’t and then they ask us to re-open it or Mr. Vergano brings this to us.  And, from what you’ve said I think that this should be re-advertised as Mr. Vergano asking for the interpretation, because you said they placed you on there and the Town has no right to place you back on there if you don’t want to be.  This is your attorney here?  Do you want to comment on that?  Do you want us to vote on re-opening it since you didn’t bring this?

Mr. Meany stated I don’t think we need to be here.  I think we’re fine with it and we can operate with what we’ve already have. 

Mr. John Mattis stated I don’t think that we have to vote to re-open it because the applicant hasn’t asked for this, Mr. Vergano has.

Mr. James Seirmarco stated for the record, I’m not going to vote to open it.

Mr. John Mattis stated so we have an issue here where Mr. James Meany is not asking for this to be re-opened.

Mr. Meany no we didn’t ask to re-open it. 

Mr. John Mattis then it’s up to the Town to ask us for the interpretation.  And, Mr. Vergano can re-advertise this as either Code Enforcement or the Director of Technical Services is asking for the interpretation if he wants to do so.

Mr. Mean] I was confused by the whole thing to begin with.

Mr. John Mattis stated Mr. Meany is not asking for an interpretation, therefore this is a moved point.  We don’t even have to vote on it.  Could we have a motion to end the meeting, seconded with all voting “aye.”