ZONING BOARD OF APPEALS
TOWN OF CANAAN
COLUMBIA COUNTY, NEW YORK
March 28, 2008

Present: David Cooper, Ann Pearce, John Stelling *.

Chairman Cooper called the meeting to order at 7:00 p.m. There are two items on the agenda: continued deliberation for Appeal 2008-1 and a new file to consider. David suggests that since Pat is not here yet, we work on the new file. Motion by Ann Pearce with 2nd by John Stelling to approve the minutes of the March 12th meeting. All in favor.

* Pat Liddle arrived.

Appeal 2008-2. David read the application aloud. The Zoning Enforcement Officer denied a permit for use. David says there’s a lot of missing information. We have to determine whether or not there is a change of use. Pat says it’s a convenience store already. The only difference is they want to put in a Subway café. David wants a better description of the proposed use, what kind of business they want to have. We want a site plan, discussion of signage, parking, traffic patterns, and a brief description of what the existing business is. We have to determine the scale of the project and how it all ties in. It will go to County Planning because of where it is located and we’ll send a copy of what we have to the town planning board. We have to be sure we don’t have a problem with density because of more than one use on the same lot. If the ZO hasn’t flagged this, some of our efforts might be misdirected. We will send him a letter asking him to clarify his rationale. Motion by David with 2nd by Pat that we accept this file based on the above conditions. All in favor. Hearing will be April 29th. The clerk will notify them that they’re obligated to notify the abutting land owners. They should provide a list of abutters.

At the board’s request David got permission from the supervisor to get special counsel for the Simmons matter. Also he called county planning and they sent him some information on a local law from Hillsdale NY adopted in 2007 that specifically addresses ridge line protection. They also deal with some land use items like steep slopes. It was helpful because it gave nomenclature for different things. There is a term for what we’re looking at, it’s crest line. Some regulations are very specific on how to regulate the crest line. Typically it forms the ridge and is part of the view shed and they take it very seriously if it can be seen from a public thoroughfare which in our case is Peaceful Valley Road. Also, there is a description of protective covenants. In discussions with special counsel David Ebert the board can set reasonable conditions that should be enforceable and easily managed. The main thing that Mr. Evert did suggest is that any conditions that we put in should be supported as to logic and rationale as to why the board feels this is really important.

David has catalogued both abutting boundary lines, spent some time on Peaceful Valley road contemplating the crest line, and knows from the site visit there is a lot of concern that we hadn’t seen the end of cutting of trees and we don’t know how much the site will change. We need to address this. If we are contemplating approving this with conditions, we have to be very specific about any conditions that we feel have to be in there and how we’re going to choose to have these enforced. David agrees with John that the house has to be located prior to issuance of any permits. The board should have reasonable assurance that the crest line will be protected. Special counsel said it’s enforceable that a C of O not be granted if there are violations in the application. The town has recourse too. With any permit, if the conditions of the permit are not fulfilled, the town has redress to pursue as an action. If the trees are already cut, where is your leverage? The board has the right to reasonably expect that these things will be fulfilled. It’s strictly an enforcement issue. What does the board want to do?

Even if we don’t have such a statute we are entitled to apply reasonable conditions for the issuance of a variance. It’s not unreasonable to say e.g. in the side yards a specific distance from the boundary the flora can’t be disturbed, harmed or damaged with a valve for resolution of a problem like a dead tree. The object is not to prevent people from using the property but is that the crown of trees and the limbs going up to the crown are critical to provide some reasonable privacy to the abutters. If the board feels this is important because an individual is coming to us to do something that requires an area variance, we have a right and obligation to examine this thoroughly and if we conclude that privacy screening provided by the natural trees has to be maintained, that’s not an onerous condition.

Also, people have written thinking about how this would look from their houses and are making an assumption that the crest line will be reasonably well maintained. If it isn’t, that’s a real issue. If we pursue, it’s not unreasonable to say that prior to the appellant getting a building permit, where that crest line is has to be verified. We can set a condition that the proposed building has to be so many feet below that crest line. We’d have to define it and cite a specific place, e.g. a spot on Peaceful Valley Road, and say from X point the building won’t project out of the crest line canopy. And if it does the permit can’t be issued. The board can state which agency determines that. It can be done using a tripod with a telescope and a camera on it. It forces the appellant to locate the house and locate the trees that are going to be demolished.

David has made a rough inventory of the number of trees that are on the common boundaries. A distance from the road back on the north side about 375 – 400 feet there are approximately 66 major trees, landmark trees, that are seven inches or greater at chest height. On the other side it’s half that where it was cleared when they built the house on the south side. If the flags are accurate, the survey goes right through the raised beds that are there. There is also underbrush. Also there’s a pinnacle in the center of the property about 2/3 of the distance from one property and 1/3 the distance from the Wistorts. This pinnacle is the highest point on the property. On the north side there is a double tree that is about in line with 50 or 60 feet from the boundary. It’s just before the property noses down the hill. David took that tree as a landmark and also found some of the original markers, railroad spikes in the trees. There is so much ticking at this point from prior measurements. David thinks the board can set reasonable conditions based on a rationale, some of which are obvious.

Ann says we could say to the applicant, this is what you have to have done. If the structure is found to be non-conforming or illegal, the C of O can be revoked if issued. David suggests the board take the time to lay out which trees can’t be cut. If they have to be taken out, we can specify how they are to be taken out so they don’t damage other vegetation.

Also, if the board doesn’t approve this we have to develop a good rationale for the denial also.

Ann and John feel Canaan might want to consider adding some things about ridge lines to our zoning, although John is not optimistic. David says we have some good examples in Red Rock where people built on the hills for the view.

David says Hillsdale has a lot of houses on the ridge line. That’s why they got aggressive about doing this. Their law is reasonably comprehensive. It’s a new law, some people are not sure of it, some builders don’t like it. It’s very specific. It lists an elevation and everything above that potentially comes under these restrictions. Some aspects of it are designed to work with developments and also individual houses. They regulate as far down as 500 square feet and they define what clear cutting is in their eyes. For our purposes this is a frame of reference. It gave us the terminology, crest line.

Pat asked John if his position on this application remains the same, and John says it does. Nothing has changed his view. Pat asked the Wistorts, do you feel that after some time, some compromise might work? Mr. Wistort says he has a problem with some aspects of the house, e.g. steel roof. David says when this was described to us the roofing was to be non-reflective as were the windows and the outside lighting. David says the conditions can include the description that was originally given to us. Mr. Wistort wants to maintain the trees that are there. David says Mr. Simmons has essentially said I know you can regulate me with reasonable conditions. The leverage that we have is that we can regulate him because of his request. The balancing act is not quite as obvious but we are always trying to balance everyone’s wants and needs.

Mrs. Wistort wants to know if the septic will be moved. Yes it will based on our conditions. David thinks it’s reasonable for the board to put conditions in, with teeth. If the appellant can’t or won’t meet the conditions he’ll walk away from the project. David thinks if you really feel that the crest line is important, it’s their obligation to basically describe that, prove what it is, so that we can have some reasonable assurance that it’s going to be maintained. Legally, because of the way our laws are written right now, as long as they conform to an Encon standard for cutting trees, we’ll give them a chance.

Pat would like the board to come up with something that at least three of us can agree on. What Mr. Wistort doesn’t see is what the board discussed before, the final stake out of the house. What was done before didn’t represent the entire footprint of the house.

In the Hillsdale ordinance, anything involved in building on the higher ridges has a two-stage process. There’s a preliminary permit and a building permit. The preliminary permit requires definition of the building envelope. If we’re willing, let’s pursue this taking it one step at a time.

Let’s start tonight. We have an obligation to reach a consensus. David suggests we work on a resolution to approve the area variance for the house and part of that would include the findings that we have developed through the hearing and deliberation. David thinks one of the findings we’ve determined is that the protection of reasonable screening available on site should be maintained for the sake of compatibility with the abutting neighbors and protection of the site. Suggests we go to the 50 foot setback and the trees within that not be cut on either side. That will help to maintain the site. We don’t want them to have a valve that says if the abutters mutually agree they can cut the trees. One of the things we’re looking at is the crest line. Once that’s established, we don’t want that to change other than natural growth or deterioration. The view shed belongs to the people looking up at it.

Pat would like to have our conditions reviewed prior to approval. Side yard boundaries will be how many feet. 50 feet is the town’s setback distance. If we protected the trees in that area, construction would have to take place in a smaller envelope. It would not typically come up to the 50 feet because you’d want a buffer between the forest and the house. 75 feet is based on where they have it now. David has an idea: trees within 50 feet can’t be touched. The additional area trees of certain caliber can’t be touched so that they can open up the lower part of the canopy. The rationale for that is the 50 feet under story trees and upper trees can be there. The advantage of saving the bigger trees farther in is, that maintains the canopy, and the lower trees within that earlier area provide a low way to break from down below. We can make an inventory of them and select a width. You are centering a house on a lot, which might not be possible. It will force them to locate it. Pat feels that makes sense. Total of 100 feet on either side. They have to figure out the septic. Here’s where you can’t do anything. David thinks the other issue is the location of the actual building, the crest lines and the height of the structure. David has been working from a driveway west of Lew Hatch’s house. Mark Meppen’s driveway is across the street and there’s a set of guardrails for the interstate. Taken from the end of the guardrail, the crest line is obvious. The appellant has to delineate it and the tower, the roof structure, can’t exceed the height of that canopy. I’d suggest it’s 10 or 15 feet below it. Pat: we’re going to specify the height of the tower aside from its relation to the trees. David: At a minimum we can say how high the tower can penetrate into the canopy. That will determine where the foundation will be located. We can be that specific. There is no reason to approve this if we maintain the crest line and right in the center, projecting beyond it, is the structure. That’s not the purpose of protecting it, it’s not unreasonable. David: the peak of the tower has to be below the final crest line when viewed from a specific point on Peaceful Valley as stated above. However they do it, it has to be accurate and verifiable. They will have to locate the structure and what additional trees are coming out. The line coming across has to be maintained. It’s their obligation to do that or get lower. If it projects up like a steeple that’s not acceptable. One of the things that’s been presented to us is, this is a way to maintain that line.

The roofing is to be non-reflective, either coated or non-reflective material. Glass is non-reflective. Outdoor lighting is down lighting. Siding should be natural looking, consistent with the site as described in earlier minutes. We will ask them to locate the major structures i.e. the septic and well, and the power lines, which may result in felled trees. We don’t want to be in a position where we think this through and do all this work and then basically get ignored. This needs to be enforced. The Zoning Officer must get a copy of our minutes so he understands our restrictions.

Is there any interest in pursuing any of the things that are in the Hillsdale law should any of our restrictions are ignored? We can stipulate that the C of O not be issued if the conditions for the granting of the variance are ignored or violated and it proceeds as a non-conforming structure. In fairness to the people who have placed their trust in us we have to be assured we know what this is going to look like and how it’s going to fit.

We grant variances all the time but this one is nebulous, lacking exact measurements. It can’t end up being nebulous. This structure is going to have a definite presence and it behooves us to really understand where it’s going to be located and where it is in relationship to that ridgeline. We have been assured that it’s well below it. If they can’t conform to it they’ll have to work something else out. They came to us for relief. John is not sure that 100 feet of trees on that northern boundary is enough to afford the W’s decent relief from having to look at this. He is afraid we are trading off some kind of theoretical ridge line protection for a loss in the quality of life for them. He’s not sure that’s a fair trade that we should be making.

David: when I weigh all the issues and look at the terrain and the locations of the proposed house and existing house I think that in a fashion it works. I wouldn’t be even remotely entertaining this if this were out in the fields or there was no natural cover. John: If the Wistorts were OK with this I wouldn’t care, they could have built the 49 foot tower. David: from what I’m hearing from the Wistorts today, there’s a definite concern that they want us to make some reasonable attempt to regulate the tree lines, density of trees, etc. I think that is a fair tradeoff. I think without the leverage of doing this there isn’t any leverage. We have an opportunity to put reasonable conditions in this approval that we wouldn’t have otherwise.

David: I make a motion that directs the board to make a preliminary decision that will be presented to the board at the next meeting, so we have something tangible that lets us know what we are voting on. Ann 2nds that. There will be a decision written that we can review and vote on. It’s critical that it be done by the next meeting with a draft provided to the board for review prior to the next meeting. All in favor.

Mr. Wistort: Will you require that the footprint be laid out before the next meeting? David: No. Prior to the granting of a building permit for the structure all the parameters we’ve discussed have to be included. The structure has to be set up such that the top of it when viewed from that specific point on Peaceful Valley Road has to be below the canopy by a specific distance. Pat: We have to give a figure in the decision. David suggests 12 or 15 feet. When you’re actually up there it will be considerably below the canopy. It would assure it’s low enough in the canopy, when the abutters are viewing it, it will be in the canopy. The distance from down below has to be reasonable enough that it’s achievable. Let’s try 12. Mr. Wistort: from what we see, most of the sight lines are focused toward the edge of the ridge so the farther back it is toward the road, the less we will see it.

A draft decision will be provided to the board that we can work with and vote on so we can get this done within our time limit.

David has talked with the supervisor and town attorney and has asked that the town board consider having alternate ZBA members so that we can have a member at large when we having an opening as we do now.

Meeting adjourned at 8:36 p.m.

For the Board from a tape recording of the session,



Julie Alexander, Clerk

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