A Little Backtracking May 28 – Zoning Board of Appeals

Another ill-informed Tendy performance

 I didn’t watch the whole meeting. The first public hearing was too painful.

The Supervisor came to the meeting to fend off this major application which  he accuses would harm his lake.

 He usually doesn’t come to the zoning or planning board meetings.  The cemetery expansion – a non-conforming use, an overly large building 68 feet instead of the code proscribed 50, and a scattering garden in the wetlands – apparently no problem for him.  Likewise, the gas station expansion – a prohibited use in our code – no problem there either.  And for the Fieldstone scoping session, a project with large houses in the New York City watershed, a huge building on Bryant Pond, a large parking lot on the pond and two ballfields, he did attend the meeting. Despite the many well-spoken and well-prepared residents attending the meeting to oppose the project’s scale and environmental damage, he got up and told us how wonderful the project was, and even threw in a large dose of mockery of those who spoke.

 So what was the horrifying, community destroying project that the Supervisor was so moved to oppose?

 A 260 square foot extension!

 It is a 9 ½ foot extension of an accessory structure that used to be a garage.  Apparently, from Tendy’s view, this small addition is going to destroy the world.

 This is Mr. Tendy’s lake and it does seem like the most important issue in Town the way he tells it.  He missed the all important point that the 260 square feet would be exchanged for two to three times the amount of permeable surface, that is impervious surface would be removed elsewhere, meaning an actual improvement for the lake.  Impervious surfaces are materials that water cannot penetrate. They create an increase in stormwater, one of the greatest problems for the lake. They include materials like asphalt,and structures, where rainwater cannot percolate down to our drinking water supply.

 He is fond of demeaning other people’s comments as “just silly.” It would be an apt remark about his foolishness.

 It seemed as if no one in the room, other than the applicant, understood the reference to the driveway pavers with grass growing through them.  I am sure that the architectural review board would be familiar with them.   Please visit Dia Beacon, where you can see the pavers.  I would think that these pavers would be preferable to gravel.  Perhaps our process should encourage their use.

 And the photoprocessing exchange – Photoprocessing is prohibited in the code written in 1995.  “I wouldn’t understand if you told me.”  Then perhaps you shouldn’t be advising.  These days, cameras are digital.  Printers are the same as the ones all of us have.  There won’t be any photoprocessing.  It’s not so difficult.

 And the bullying – the supervisor brought the applicant’s wife and daughter into his diatribe.  When the applicant tried to object, and comment on those remarks, he was told, by the Chair, that he should not make personal attacks.

 Very poor form was displayed in this meeting.

 The project was subsequently approved by the ZBA because the lake will be better off because of the project.  This sort of verbal assault on an applicant who is proposing an improvement should not be permitted.






Zoning Board of Appeals

March 26, 2009

The ZBA meeting this past week will impact the residents of this Town for a long time to come.  The board rendered a decision in the Mobil gas station application.  The station is on Bryant Pond Road.

Before getting to that, in the backroom, Mr. Robert Lusardi discussed the Syracuse Aggregate precedent as it relates to the cemetery expansion.  Rose Hills has been discussed before.  The cemetery was on this agenda as Beverly Hills.  The case law regards a mine or quarry that used a section of the parcel, and then expanded to other sections. 

The cemetery is not an accepted use under our code.  Mr. Lusardi is advising the board on this matter.   As I understand it, he has said that the applicant needs to provide evidence of clear prior intent to expand.  That has not been provided, and seems not to exist.

The cemetery has different parcels under different names.  On the opposite side of the street, they received a variance to expand an existing building, and that was raised as an excuse to allow an oversized building on the Beverly Hills side.  Mr. Steinmetz also feels that the tax exempt status of the entire parcel overrides the constraints on the use of the established cemetery.  Cemeteries do not have to pay property taxes.   

The applicant seems to have dropped the mausoleum proposal.  The use of the land has already exceeded the percentage allowed, as compared with open space.  They are looking for a further variance regarding the open space requirement.  This project was explained as minor at this meeting, but the expansion to 1100 gravesites, and a scattering garden in the wetlands was discussed at the Planning Board meeting. The size of the expansion of any application should be part of any presentation to the public.

It sounds as if the ZBA has adequate grounds to disallow this expansion of a use that is not permitted in our code.  Mr. Maskiell stated that he has no problem with it.  Some members of the public have expressed concern about the environmental hazards created by cemeteries.

Mr. Steinmetz mistakenly called this a mine, and said that the uses were interchangeable, kind of like a landscaper and a tank removal company.  (That is an editorial comment.  I was just struck by the similarity of his argument to the one he expressed about the Morrissey Drive business. That comparison was struck down by the court.)

Incentive zoning – Mr. Tendy mentioned an inn/restaurant and trails, as one excuse for incentive zoning.  Mr. Steinmetz mentioned that he has been meeting with Mr. Tendy about one of the adjacent parcels regarding a restaurant project.

Someone else mentioned that Mr. Tendy has been meeting with Mr. Val Santucci. 

Oddly, Mr. William Zutt, who has recused himself in this matter, because as an attorney, he represented Beverly Hills Cemetery, remained in the room for the discussions, and has even commented sometimes.

The Warex Decision and Order

Mobil On the Run – on Bryant Pond Road

Sad to say, the ZBA let us down on the prohibition of gas stations in the ground and surface water protection district.  This is a prohibited use in much of the town, but the ZBA will allow expansion.  Tartan Oil is the legal precedent that was used.  The base code should have been changed, but has been blocked by members of all three decision making boards and the Town Attorney. 

Listening to the decision and order, I was appalled.  The beginning was easy to understand.  They were deciding whether or not the application was to be considered as a non-conforming use.  They determined that it was not.  I agree with that part.  But then, when they cited precedents for it to be considered for a use variance, they determined that it did not require one, although any further expansion would, and any expansion of storage would.  Why?  What makes the future different from now?  If you can require a use variance in the future, why can’t you require one now? The D&O refers to “the addition of 2 pumps and 4 dispensers which were a part of the station’s original installation.”  This is very shaky.  There is no diagram of piping in the building department or planning department.  The applicant says that it was installed with the original construction.  Why?  They were given permission for the dispensers that are there now.  Why would they have built in future expansion when that was not part of the original approval?  And why would they be permitted that expansion now? 

The town’s prohibition on dispensing of fuel was not upheld by the zoning board.  The prohibition of delivery has not been enforced.   One of the previously expressed no votes led to this approval.  It was a 3-1 vote, with one abstention.   Mr. Mike Fithian, thank you for voting no and representing the interests of the public..

The Y-Camp Combe was held over, waiting for SEQRA.  That is 14 variances, and a segmented SEQRA review.

Mr. Kisslinger received his variances.  The parcel does not have access by a town road.  I think this is incentive zoning.  He is supposed to donate a parcel to Lake Oscawana.






Warex – the gas station on Bryant Pond Road.  This is a prohibited use according to our Town Code, but they want to expand 50%, but, according to their attorney, David Steinmetz,  it’s merely an enhancement of the customer’s experience.


Putnam County Savings Bank – Oregon Corners, pay attention to this one before the digging starts.  For now, it is held over.


Incentive Zoning – The idea of throwing the zoning code out the window in return for gifts


Zoning Board of Appeals

February 26, 2009


There were only four items on the agenda, and two were eliminated in the pre-meeting, but they still managed to make a night of it.  I want to distinguish between the Planning Board and the Zoning Board pre-meetings.  The Zoning Board agenda announces that they will be meeting at 6:30 before the 7:30 public hearing session. That means that there meeting is legally noticed.  Now if we can just get them out of the backroom.  The interpretation from the Committee on Open Government is that if there is a room where the public can be reasonably accommodated, such as the court room, it should be used.  The backroom is congested.


The hot topic was Warex, the gas station at Bryant Pond Road, that wants to expand.  It is a 50% expansion, but it’s not an expansion. The applicant is seeking an interpretation from the zoning board.


 A gas station is a listed use in the base code, the old code that we are still using despite the new Comprehensive Plan, that new Plan that Mr. Zutt wants to amend.  Couldn’t we have given the new code a shot before we started to amend everything?  But the same obstructionists have obstructed for so very many years, they are quite adept.  So using the old code and the new Plan has left us with some confusion – the classic reason for a moratorium, the moratorium that was opposed by Mr. Tendy, Mr. Zutt, and Ms Keresey.  This is the mess that they have left us to deal with.


This business is a prohibited use in the ground and surface water protection district.  Its expansion is prohibited in this district.  The applicant argues that they are not expanding, they are enhancing the experience for the customer.  But the code says that dispensing petroleum products is prohibited, so expanding dispensing should be prohibited.*  Seems simple enough, doesn’t it?  The idea was to keep bad stuff out of our drinking water, and if you put more pumps in, you increase the likelihood of spilling bad stuff.


Well, the piping is already there, so I guess they were already for this expansion, this enhancement of the customer’s experience.  But still, the law says dispensing is prohibited.

Still seems clear to me.


There is an interested member of the public who has done his utmost to protest.  There is the threat of a lawsuit with either decision.  Mr. Zutt refrained from expressing an opinion in the public part of the pre-meeting, but there was an abrupt change in the responses of a few officials present, so my guess is that he’d rather take on the attorneys representing the member of the public than Zarin and Steinmetz, attorneys for the applicant. If the advocate for the community uses the same counsel that he retained a few years ago, they seemed good to me.  And apparently that is the lawsuit we’ll have because three Board members seemed to believe that this isn’t a prohibited expansion.  One opined that it isn’t worth the Town’s trouble to fight.  I’d rather fight the good fight, and I don’t think that’s the applicant’s fight. 


It was also expressed a couple of times that an old use that does not conform to zoning is constitutionally protected.  I seem to recall hearing that a Town Board can make the decision to eliminate a noxious pre-existing use.  I don’t remember where that is in the law. I guess I’ll have to do some research.


 Someone said that there is nothing that allows this as an as-of-right use. The Tartan Oil case is the much discussed precedent for allowing this expansion.  That case, however, was not a legal test of our overlay district concept.  There is a horse breeding case that acknowledges that there have to be some limits. I’ve reached mine.  I really think that the intent of the overlay district was clear, and there isn’t any interpretation of that needed.  The deliveries to the gas station are against the law, no matter what the zoning board says in this case, and that law should have prevented the expansion of a gas station.  Three property owners in the Town can legally challenge any non-enforcement.  Regardless of the song and dance, however, this is an expansion.


The Putnam County Savings Bank has been pending for awhile, and that was held over.  This bank is proposed at the corner of Hollowbrook Road, and Oscawana Lake Road.  The applicant hasn’t been heard from for about 8 months. I thought we were told that this was a done deal.  Maybe they are wondering if Putnam Valley actually is “overbanked”.  In this economy, it doesn’t seem like the best place for a new branch, but then I never was partial to the idea.  With inadequate parking for the businesses and residences there, this just doesn’t seem like good

planning.  More than one principal use on a lot is the issue.


The New Jersey planner’s rendering was mentioned as the latest plan for the corners, but that isn’t an approved plan by the DOT or anyone for that matter.  What a mess.


Then there was Mr. Kisslinger.  His plan for access to the lake on a lot that is not attached to a house was held over.  The house on 1½ acres with no public road was the application discussed.  So is this the incentive zoning application?  They are talking about this house and these variances, but also mentioned was the donation of a parcel down the road to Lake Oscawana for a biofilter.  The concept of incentive zoning is distressing enough.  Throw out the zoning code for a ‘gift.’ But this gift would be specific to Lake Oscawana, and the effect of throwing out the zoning for one applicant would be a Townwide ‘gift.’  The rest of us would have to live with the consequences.  The Zoning Board has an entirely different demeanor when talking to Mr. Kisslinger or his attorney than does the Planning Board.  This was a far more comfortable experience for the observer.


There is a note on the bulletin board that applications are being taken for the conservation commission.  And there have been no announced resignations.  So officially, there is still one more member than the code allows.





*Excerpted from Town Code


Prohibited uses. The following uses shall be prohibited within the Ground and Surface Water Protection (WP) District:


Oil, gasoline or hazardous material pipelines.


Automotive service and/or repair stations and garages.


Bulk storage of home heating oil in underground storage tanks. For new home construction, heating oil tanks should be installed above ground or in a basement with an impervious floor, such as concrete. Existing underground home heating oil tanks may remain in place but may be replaced only by aboveground installation or in a basement with an impervious floor, such as concrete.



The storage and/or dispensing of petroleum-based fuels in any form, as a commercial enterprise, including but not limited to motor vehicle fuels, and whether or not located in fixed tanks on site or mobile delivery vehicles for transfer and dispensing off site. Delivery of petroleum-based fuels to consumers within the Ground and Surface Water Protection District from locations outside the district is not prohibited.

[Added 6-1-2005 by L.L. No. 2-2005; amended 4-19-2006 by L.L. No. 2-2006]


Development approval criteria.


Applications for an environmental management district permit pursuant to this section shall include an assessment of the impact the proposed use or structure may have on ground– and surface water conditions. The purpose of this analysis is to demonstrate that no activities will be conducted upon the property that will result in surface water pollution or groundwater infiltration. The analysis shall be prepared by a professional hydrologist, geologist, licensed engineer or qualified professional and shall be paid for by the applicant.


Unless served by central water and sewer facilities, no subdivision or site plan approvals shall be granted without findings by the Putnam County Department of Health that, based upon sufficient information on soils, geology and hydrology, the installation of on-site well and/or septic disposal systems, if properly installed and maintained, would not be likely to have an adverse impact upon the surrounding ground– or surface water quality or supply and that there is sufficient area or suitable soils for future extension or replacement of initial septic disposal systems.




PV Zoning Board – January 29, 2009




Because of a question from Mr. Robert Tendy, I was inspired to watch the last zoning board meeting.  For those of you who follow this sort of thing, the zoning board meetings will now be the 2nd and 4th Thursdays instead of the 3rd and 4th.


There are some zoning issues that matter right now.


Warex – You can see the essence of this controversy now on the ZBA meeting, Channel 20 and streaming media. 


This is the gas station on Bryant Pond Road and Wood Street. They want to expand a non-conforming use.  Non-conforming means that our code does not allow it.  A gas station is prohibited in the ground and surface water overlay district.  This gas station was already there, so is allowed to remain, but now they want to expand.  They have eight dispensers.  They want another four.


There was a dance around the expansion concept.  Since there will be no new tank, there will be no expansion.  Of course, there can be increased deliveries, and that was raised.


Interestingly, Mr. David Steinmetz, attorney for the applicant, seemed to argue both sides.  It sounded like he was saying that this is not an expansion, but expansion is okay too.


He cited a lot of legal cases and he says it’s clear.  But I wonder, if it looks like an expansion of a non-conforming use, and smells like…..


Does the Town want an expansion of a gas station?  What is the question that the Zoning Board will be considering?  The issues for the Planning Board to consider are another canopy and expanded parking. 


Moving on to another expansion, last week there was an article in the North County News about the cemetery expansion.  The article did not elaborate the issues.  A cemetery, like a gas station is not allowed according to our zoning code.  It is, therefore, a non-conforming use.  There are a lot of issues with this expansion – wetlands, SEQRA, segmentation, steep slopes, different ownership of the parcels, and a building larger than the code allows.


Understand that a cemetery is exempt from property tax, so its success or expansion does not help with our taxes.  Does its expansion have other community benefits? And what protection do we  have when the chemicals and by-products leach into the groundwater?


Regarding other applications, there was a discussion of the Stein decision.  I don’t know what that decision was.  It involved lot coverage, joined properties, possibly coops. 


There were a couple of discussions of projects that were completed without variances or permits.  Someone said that he would not have approved the project if it hadn’t been built first, but that tearing it down created a hardship.  If that is the logic that is used for approval, then why should anyone go for a variance beforehand.  By that reasoning, it makes much more sense to build what you want, and then when it is finished, go to a zoning board that is willing to easily approve non-conforming construction, as long as you finish it first.


There was also a discussion about whether removing a garage door and replacing it with windows changes its use.  There was only one member on the board who felt that it obviously does.


I would hate to see the zoning board become merely a rubber stamp for construction that is not in line with the code.


Mr. Maskiell said that the board has 62 days to make its decisions.






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