SEA CLIFF RESIDENTS QUESTION FAIRNESS OF ZONING BOARD DECISION
October 20 -- At last Tuesday's Sea Cliff Village Board meeting, long time residents Karin and Doug Barnaby expressed their frustration, and questioned the fairness of a recent zoning board of appeals decision denying their application to subdivide their two acre property. The basement courtroom in Village Hall was filled to capacity, as the Barnaby's made their case to the Village Board during the Public Comment portion of the meeting.
Mr. Barnaby spoke first, explaining that the preliminary proposals for the subdivision were initially presented and discussed in 2005. He then offered a detailed summary of their dealings with the planning and zoning boards over the last four years, through 22 hearings, as they sought to gain approval for their subdivision plan, which would divide their property into three lots - a 36,000 square foot lot where their existing home stands, and a 10,000 sq.ft. lot and a 26,000 sq. ft lot, on each of which a house would be constructed.
In 2011, their first application to the Zoning Board was denied - a decision that the Barnaby's appealed to the New York State Supreme Court in an article 78 proceeding. While the court upheld the ZBA’s decision, Mr. Barnaby explained that the opinion, which he read from, stated that they had the right to use Preston Avenue, a street that is shared by the Barnaby’s and their neighbors to the east, for access to the larger of the two lots in the subdivision proposal - subject to planning board approval .
Mr. Barnaby explained that in his second attempt to gain approval of his subdivision plan, he consulted with village officials in selecting one of four plans he had developed to present to the planning board and ZBA. "The one selected," he said, "was considered the least intrusive and most environmentally suited for our area. . . . It would require cutting down the fewest trees and have the greatest amount of open space, and the least amount of paved area." He explained that they had a formal hearing with the planning board in October 2012 and then met twice with the board over the course of the next two months, and at the December hearing was told by the Planning Board that they could proceed to the Zoning Board of Appeals "based on the current proposal."
At their January 2013 hearing before the Zoning Board, Mr. Barnaby stated that the ZBA expressed no objections to their proposal. Their application was then referred back to the planning board for a State Environmental Quality Review (SEQR), and after seven hearings, the Barnaby’s were told in July that they had passed the review. They then went back to the zoning board for a final determination on their requested variances. Mr. Barnaby said that when he presented to the ZBA the same plan he had proffered in January, Chairwoman Dina Epstein now expressed objections to the proposal. At the September 17th meeting, the ZBA denied the Barnaby’s application in a 3-2 vote with Jamie Wiehl and Noel Griffen joining Ms. Epstein in the majority, and Ted Kopzynski and Kevin McGilloway voting in favor of the application.
In his presentation to the Village Board on Tuesday, Mr. Barnaby asserted that, based on a conversation he had with Village Attorney Brian Stolar, and what he was able to glean from the Zoning Board’s discussions at the August and September meetings, Chairperson Dina Epstein, wanted changes to their site plan that would widen the right of access to 50 feet from Willow Shore Road to the 26,000 sq. foot lot, and to reduce the lot size from 26,000 to 10,000 square feet presumably to ensure that a very large house could not be built. Mr. Barnaby asserted that both of Ms. Epstein’s objections and proposed changes regarding the right of access and lot size fell under the purview of the Planning Board - not the Zoning Board.
In addition to his argument that the ZBA had assumed the planning board’s authority, Mr. Barnaby raised several other issues, among them - the appropriateness of what he said were efforts by Ms. Epstein to persuade others on the ZBA to deny the application; that there was no evidence that Ms. Epstein and the other two ZBA members who voted against his application had not undergone a training workshop that is offered by the State and available to Zoning Board Members; and, that there were inconsistencies between the ZBA’s denial of his application and the approval of other applications in Sea Cliff. One example he cited was of a 9,000 sq. ft. property on 17th Avenue that was subdivided into two 4,500 sq. ft. lots in a 7500 sq. foot zone, with Ms. Epstein voting in favor of the application in a split vote.
As he neared the end of his presentation, Mr. Barnaby said, “I think that something has to be done by the Board to ensure that equal, just, and fair decisions are made.”
While Mr. Barnaby’s presentation focused on the minutia of the couple’s dealings with Village Government, Ms. Barnaby attempted to offer a broader view, arguing that it wasn’t just their due process rights that were at stake, but those of the entire community. In a statement that was Jeffersonian in both style and sentiment, Ms. Barnaby declared, “Whenever and wherever officials in positions of power disregard due process and the rule of law there is injustice. Sea Cliff officials take an oath to uphold the Constitution, which, above all, guarantees due process and the rule of law to protect everyone’s life, liberty and property equally. And yet, Village officials, for years now, have disregarded the rule of law and due process that protect our rights, our lives, our liberty and our property.”
Ms. Barnaby issued a call to action. “Join us,” she said to the audience, “in our effort to restore the rule of law and due process to our Village so that we all can be assured fair, impartial and just treatment at the hands of our elected and appointed officials. For starters, let us demand that the trustees institute a system of checks and balances; that they restore Sea Cliff’s due process statements; that they enforce NY State training and procedural mandates; that they clearly, publicly articulate and explain all codes and laws germane to any given application; that they enforce a reasonable timeline for all applications.”
After Ms. Barnaby’s statement, the Village Board Trustees responded to some of the issues that were raised . Trustee Carol Vogt said that although the trustees are the elected representatives of the communities, certain authority is delegated to appointed officials, such as those on the Zoning Board. The power to make decisions is held by the members of that board, she continued, not by the Village Board. She said it would therefore be inappropriate for her to offer an opinion on the ZBA’s decision.
Ms. Vogt did say, however, that it was appropriate for her to comment on the process and that “it is right to hold us (the village board) responsible for the competency of the members that we help to appoint and on the process they use to come to those decisions.” She continued, that Judge Scher had stated in her 2011 opinion on the Barnaby’s article 78 petition, that the decision of ZBA was (quoting Judge Scher’s opinion) “ based on full consideration of all the evidence and was neither arbitrary, capricious, or irrational.” Ms Vogt added, “now as your representative having the responsibility to ensure that the zoning board is doing a good job, I take the Judge’s evaluation of how the zoning board did their job on the first application . . . . The Judge said the zoning board’s decision was based on full consideration of the evidence.”
Addressing the Barnaby’s argument that Zoning Board members perhaps had not undergone sufficient training, Trustee Vogt said that according to the New York Department of State website stated that workshop training was not the only option for ZBA members, but “training can include,” she quoted the website, “distance learning, videos, on-site demonstrations or even self-study.”
Ms. Vogt also stated that she was very concerned about the allegations made concerning bias with regard to the ZBA’s decision. She said that similar allegations had been made after their first application was denied She then quoted from a 2011 letter that the Barnaby’s had sent to the ZBA chair at the time, Kevin McGilroy, and cc’d to the Village Board. “Isn’t it possible, that the members of the zoning board are not the nefarious incompetent individuals they have been portrayed as, but resident volunteers who may or may not agree with the applicant.”
With regard to Mr. Barnaby’s statement that Ms. Epstein had sought to persuade the other board members to deny the application, Ms. Vogt said that she did not feel it was inappropriate for one member to attempt to sway another over to his or her point of view, and that when she was on the Zoning Board it was not uncommon to “discuss and argue with each other” over the merits of an application.
Ms. Vogt then added,“I have a had a long and wonderful friendship with the Barnaby’s and I am saddened for what has happened to them over the past four or eight years, but I don’t believe that the allegations against us as a board that we have not somehow not done the American thing or met our responsibilities is accurate.”
Several residents spoke up regarding the Barnaby’s application. Jim Dunne, a lawyer representing the Lady of Kazan Church at the northwest corner of the Barnaby’s property stated that the Barnaby’s had always been excellent neighbors to the church and that the church fully supported their application. He said that the church and the Barnaby’s had discussed the proposal for at least seven years and that he has, on behalf of the church, attended ten hearings.
Wendy Rosow, the Barnaby’s neighbor across Preston Avenue said that there is not enough frontage to build the house, and characterized the lot as a “flag lot.” She said that the small country lane does not create frontage – it creates a private driveway. She added that no one has the right to open Preston Avenue up as a road, unless the two adjoining property owners agree to it – one being her and her husband Jerry Simpson, and the other being the Barnaby’s. She said there has been no such agreement.
Ms. Barnaby then asked Village Attorney Brian Stolar to offer clarification of the legal status of Preston Avenue and the meaning of the word “street” as it pertains to Judge Scher’s ruling. He replied that according to Judge Scher’s decision, Preston Avenue’s use as a roadway was subject to planning board approval.
In addition, Ms. Barnaby took exception with Ms. Rosow’s characterization of the lot adjoining Preston Avenue as a flag lot. “It is not a flag lot, it never was a flag lot,” she asserted, “and the Nassau County Planning Commission had determined that it is not a flag lot.” Mr. Stolar replied that the Nassau County Planning Commission leaves decisions up to local zoning boards unless there is a county-wide impact.
Trustee Vogt then invited the audience to ask “about the larger issue the Barnaby’s have raised about whether we are performing our responsibilities with regard to the zoning board.” “ I would like to hear what concerns you have,” she said.
A Boulevard resident asked if the board ever considered some sort of ombudsman to guide people through the process. Mr. Stolar responded that one would first meet with the Superintendent of buildings, who when then guide the resident as to what the steps are. Mayor Kennedy interjected that for larger projects, a person would hire an attorney whose job is to guide the applicant through the process.
Marsha Widener, of Downing Avenue, said she “thinks there is a feeling of uncomfortableness, and a little bit of fear that if you are critical of something that is going on – or that there is a right side and a wrong side .” “ Some people,” she continued, “are afraid that maybe they’ll get in trouble with their property – I think there is some wariness.”
A Brown street resident, said that many have concerns with the Zoning Board and that the “buck stops” with the Village Board and that they should perhaps look into those concerns. He said that he knows of three houses that are “monstrosities” that went up on his block and wanted to know why those applications were quickly approved while the Barnaby’s application has taken so long.
Tom Kavanagh of Littleworth Lane said that he was concerned that the village was not trying to facilitate the process, but rather make it more difficult.
Ms. Epstein, the Zoning Board Chairperson, entered the meeting at about 10 pm, and said that she “wanted to clarify that there are mischaracterizations that have been made.” “The decision on the Barnaby property,” she said, “was made in accordance with the statute, with the law, and with all that is required to get the type of variance they applied for. We have not made short-cuts, we have not dragged this out for eight years. This application was put before us in January and some of the delay was not caused by the planning board or the zoning board. . . . Mr. Barnaby’s characterization that I made all of the decisions is just not true – I am one person on a five member board. Each person on that board has an equal vote.” Ms. Epstein added that the written decision had not yet been published, and that “Mr. Barnaby has jumped to conclusions.” She then urged everyone present to read the decision when it is published and encouraged people to read the transcripts of the meetings. She said that “there is a big story here - that is not the whole story.”
A gentleman from the audience then stated that since the Zoning Board chairperson was there, that he would like to hear why she voted as she did on the Barnaby’s application. "Tell us your side,” he said. Mr. Stolar then interrupted that he would counsel Ms. Epstein not to speak at that time. Mr. Kennedy then stated that they did not yet have a written decision at that time. In addition, he continued, the Village “was now looking at another article 78.” People in the audience asked when the written decision would be available.
Mr. Barnaby stated that his lawyer had told him that, according to Mr. Stolar, a written decision would be available the next day. Mr. Stolar replied that a written declaration had been drafted, but that the ZBA had not taken action on it at its meeting that had been taking place simultaneously to the Village Board meeting. Mayor Kennedy added that like the minutes of a board meeting, the board has to vote on the written determination, before it can be released to the public. It was not immediately clear why the ZBA had not taken that action on the written declaration.
Ms. Barnaby then stated that the ZBA was “tasked with reviewing three minor variances – it was not tasked with redoing and redesigning the whole subdivision application.” Mr. Barnaby, speaking to Mr. Stolar, said, “Brian, you came to me after the September meeting telling me, ‘Doug, here’s what she wants - a curving right of way coming in on the Willow Shore lot to two 10,000 sq. ft. lots.” Mr. Stolar said that when he listened to and observed the zoning board, that that’s what they had been talking about. He then added that the zoning board can consider feasible alternatives in its deliberations.
Jerry Simpson, the Barnaby’s neighbor, then spoke, saying that the Barnaby’s first application to the ZBA was in 2010 and that that had only been three years ago. He added that there have been multiple boards that have been in place since then, and that it would be “irrational” to believe there is some sort of conspiracy. Mr. Simpson said that he believed due process had been followed in this case.
A Foster Place Resident then rose to spoke and said, “there comes a time when there is undue influence on decisions that I have seen in the past 30 years concerning homeowners’ rights as far as what can and cannot be done.” He said that he thinks that there is a lack of trust between the homeowners towards the zoning board, the planning board and the village board. He continued, “we’re here not only to support the Barnaby’s but we’re here because this is our home, it’s your home – it’s a shared existence.” He added that he believed as elected officials the Village Board has an obligation to provide oversight of the planning and zoning boards to ensure objectivity.
Late during the two hour discussion, Mr. Barnaby expressed his frustration with the process. “It’s not right for an applicant to spend eight years and 22 hearings [seeking approval]. Someone should have told us at the third hearing that we were doing something wrong. Something has to be looked into with our application – something went awry,” he said.