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eNEWS
eNEWS
2004
JULY thru SEPTEMBR
KNGG e-mail bulletins appear here
THE LATEST
BULLETIN WILL ALWAYS APPEAR ON TOP
The
contents of eNEWS is the property of KNGG.
eNEWS may not be copied or reproduced in part or full without consent of KNGG.
ALL
KNGG E-MAIL IS SCANNED BY A NORTON ANTI-VIRUS PROGRAM
SEPTEMBER 27,
2004
Dear Member:
The following KNGG letter to the editor was sent today
(September 27, 2004) to the Chatham Courier, The
Independent and the Register-Star. This letter in part is a response to
The Register Star's 9/21/04 attact on KNGG and to
Chairman Ed Simonsen's attack on KNGG on 9/23/04.
To the
Editor: In its September 21 editorial, the Register-Star suggested that it’s fine for Columbia County residents to attend local planning meetings and town/village board meetings, as long as they are careful to not get overly involved, especially if they have moved here from another area. Unlike the Register-Star, we
take seriously our rights to express opinions regarding our government and the
performance of public officials.
Those who do not share our views have the same rights. We think better government comes from
public discussion and debate. We object when some public officials opt to use
the platform of their office to admonish citizens for presuming to criticize
them rather than respond and engage on the issues.
We believe the Widewaters shopping center will have significant adverse impacts on the safety of our community and our quality of life, and that the plan approved by the Planning Board failed to mitigate these impacts. We believe, therefore, that a correct application of the facts and the law required the Planning Board to deny the application. The decision of the Planning Board does not change this view. Engaging competent expert assistance from the beginning on issues such as traffic, landscape and building architecture, lighting, and noise abatement, would have given the Board an objective basis from which to assess the claims of Widewaters’ experts. KNGG and others urged the board to obtain such assistance. The assistance that the Board ultimately engaged made recommendations that even members of the Board criticized as unreliable and inadequate in various ways, yet the Board did not discount the reports of these experts accordingly. The building design issue provides the most recent example of the Board’s shortcomings. Relying on the advice of a then-unlicensed architect retained by the developer, the Planning Board wrongly asserted that it is not possible for the buildings to comply with the Town Code, thus necessitating a variance. Even though a licensed, experienced architect (and a member of our own community) demonstrated how compliance could be achieved without a variance, the Board inexplicably embraced the developer's position in its recommendation to the ZBA. Our letter referred to in the Register-Star editorial attacked no one personally. We expressed our disappointment, and disagreement, with the Planning Board's decision and the manner in which it was made. We criticized the Planning Board and our elected and appointed town officials, but the letter was in no way uncivil. Many of KNGG’s members currently serve (or have in the past devoted countless hours to) the Town of Kinderhook, the Village of Valatie, the Ichabod Crane School District, the libraries, the fire and rescue squads, and other community boards and organizations. We are mindful of the commitment of time and effort our elected and appointed officials make, but we do not agree that this renders them immune from criticism or challenge. We express gratitude to the Board, and especially to Ed Simonsen, for their commitment to this difficult work. We must decline, however, the
Register-Star's suggestion that we applaud the Board for a job well done
simply because the Board thinks it has done a good job. We note the irony of
having -- of all institutions -- a newspaper in America advocating such
obsequiousness. We cherish our right to challenge our government, and our
involvement in KNGG stems from our sense of civic duty. We are not trying to drive anyone
away.
We will continue to challenge our
public officials and our neighbors to demand a better vision and future for
Kinderhook. That's our
mission. We will pursue it, and
would like to see the Register-Star attend to its own journalistic
mission. Too often, the newspaper
parrots the positions of local officials on issues affecting our community
without challenge, in-depth reporting, or analysis. Whether this is the result of laziness
or bias, it makes the need for organizations such as ours all the greater. Very truly yours,
KNGG Board of
Directors Allen
Schaefer Mark Litteken
Alexandra Anderson
Spivy
CC: Mr.
Edward Simonsen, chairman And Members of the Town of Kinderhook Planning Board SEPTEMBER 26,
2004
EGAN HAS NO PROBLEM WITH OPENING
HEARING??? For those of you that
managed to get a copy of the 9/25/04 Register-Star, to read the front page
article on the ZBA meeting, you’ll notice that ZBA Chairman Sean Egan was
reported saying that, “he was not opposed to reopening the hearing, but that it
was the responsibility of the board to do so if they felt it
necessary.” “As chair I was open (to it),” he said.” “They could have opened it. No one made a motion to reopen the hearing so we dealt with what was in front of us.” “Not entirely true,” wrote the Register-Star reporter, “Wetmore did make a motion to reopen the hearing but it was not seconded or voted on.”
KNGG eNEWS reported yesterday: Richard Wetmore moved to reopen the Public Hearing so new renderings could be submitted and reviewed. There were newly revised renderings by architect Alvin Knoll ready for presentation to further KNGG’s position that Widewaters could build in compliance to the code and that no variance should have been required.
No one seconded the motion, which lead us to believe that
the ZBA was telling us that it did not want to review any further evidence, no
matter how relevant it could be.
EDITORIAL And now Egan says, “As chair I was open,” If Egan was open as he told the R-S, why didn’t he second the motion to open the hearing? I’m sure that had Wetmore and Egan both voted to open the hearing, one more ZBA member would have joined the vote and the hearing could have opened. I had a preconception that the ZBA, like the Planning Board, would be open to accepting new evidence. I was wrong. Egan went on to say, “No one made the motion to reopen the hearing so we dealt with what was in front of us.” Not at all true. Why is Eagan trying to gloss over the fact that the motion made by Richard Wetmore was ignored? Is he afraid of the implications?
KNGG believes the hearing should have been opened. The ZBA has a responsibility to evaluate all information before making a determination. In not opening the hearing, the ZBA is telling us that it didn’t want any further input from the public or KNGG. Could this mean that 3 out 5 ZBA members had made a decision before the meeting began and felt there was no point in hearing more testimony since nothing was about to change their mind?
ZBA member Richard Wetmore exclaimed, “This is a precedent-making decision and probably one of the most important decisions that’s ever been made by this board.”
The R-S reported Wetmore saying “he feared that granting a variance to a developer who had made no effort to conform to town code simply to push a project through was a slippery slope.”
There are many questions to be answered about Thursday’s ZBA process and its conclusion. KNGG intends to get to the bottom of it.
Is it worth going through this work for a roof design? Yes, if the design lessens the impact of Widewaters’ big box architecture and helps to preserve the community character. And above all, we must stand on principle. Our public officials need to learn that we have a zoning code that must be enforced. Our public officials need to understand and appreciate that Kinderhook is a very special rural town with its historic sites, rolling farmland and, prior to Widewaters, a bucolic view of the Catskill Mountains from our Town Gateway. Kinderhook is not only
part of this country’s heritage, but has several historic attractions likely to
bring more tourists to town. Let’s
not kill the goose that lays the golden egg in exchange for suburban
sprawl. KNGG believes in good
growth. We offered Widewaters good
alternatives but they refused to listen. We can have good growth if our
officials and we persist and cooperate by following the intent of the
code. Allen Schaefer SEPTEMBER 25, 2004 Register-Star
ZBA Grants Widewaters Roof Variance KINDERHOOK -- The Kinderhook Zoning Board of Appeals voted 3-2 in favor of granting the developers of Widewaters Commons a zoning variance for the project's roof at Thursday's meeting. The decision was the last before the board pertaining to the project, and as the Planning Board has already finished their proceedings with Widewaters, the shopping center will now go forward barring any legal action. There may be some, though. The group responsible for proposing an alternative design to the Widewaters roof that would have conformed to the zoning code, Kinderhook Neighbors for Good Growth, will consider legal action for what they consider a faulty process and decision. "We're currently evaluating the legal case for an Article 78 lawsuit," said KNGG President Allen Schaefer. "We feel it's very important because there's a principle at stake: The ZBA is supposed to follow the law and the intent of the code." Schaefer said that the developers made no effort to have their roof -- a flat roof, which is not allowed under town code -- conform to code, and that ZBA members failed to adequately consider an alternative design proposed by KNGG that would have conformed. The question the ZBA ultimately had to answer with their vote was whether or not granting the variance would adversely affect the health, character and visual beauty of the community. Two thought it would, three thought it would not. To get the rest of the story see today's the Register-Star. Letters There are two letters of interest in today's Register-Star on page A4. One by Mary R. Meyer of Niverville criticizing KNGG's letter. One by Frank Moses criticizing the Register-Star editorial that
criticized KNGG's right to speak out when officials do not live up to their
duties.
SEPTEMBER 24, 2004
ZBA MAKES HASTY DETERMINATION ZBA members present at last night’s specially called ZBA meeting were Chairman Sean Egan, Wendy Bopp, Kelly Nicoletta, James Waterhouse, Richard Wetmore, attorney Marc Gold and Alternate Tom Neufeld. Alternate Margaret Litteken was present although recused from the Widewaters application.
At the beginning of the meeting the findings statement, usually prepared by the developer was given to the board to read and comprehend. They were given only 20-30 minutes to digest it and understand its content and its meanings.
After looking at the findings, Kelly Nicolletta immediately moved to approve the variance. Richard Wetmore questioned her jumping in and requested that he make a motion. Granted, Richard Wetmore moved to reopen the Public Hearing so new renderings could be submitted and reviewed. There were new renderings by architect Alvin Knoll ready for presentation to further KNGG’s position that Widewaters could build in compliance to the code and that no variance was needed.
No one seconded the motion, which lead us to believe that the ZBA was telling us that it did not want to review any further evidence, no matter how relevant it could be.
A motion was made by Richard Wetmore to deny the variance. No one seconded it. Kelly Nicoletta then moved that the variance be approved. Jim Waterhouse seconded the motion. Wetmore remarked, “It is the duty of the ZBA to uphold the Town Zoning Code and not approve all applications for variances. Approving too many variances will weaken the code.”
Nicolletta replied, "But we are a board of appeals and should be looking at appeals."
Wetmore responded, "A board of appeals doesn't mean that everything that comes in the door should be approved.”
This is why there is an application process. Otherwise there would be no ZBA. We’d need only one person to sit in Town Hall rubber stamping variance requests.
Nicoletta read a statement that basically paraphrased Marco Marzocchi’s letter to the editor in Tuesday’s Independent.
A vote was taken, 3 –2 to approve the variance with Sean Egan, Kelly Nicoletta and James Waterhouse voting for approval. Wendy Bopp and Richard Wetmore voted against approval.
In haste, Chairman Sean Egan, suggested the ZBA vote on the findings statement. We realized that in its rush to approve the variance, the ZBA neglected to discuss and vote on the findings that should have come first. In reviewing the findings statement, the ZBA’s understanding of it is supposed to help the ZBA members make their determination on the variance. In fact they put the cart before the horse and took the vote without considering the findings.
Usually the findings statement is presented to the planners by the developer. The planners should be given time, at least till the next meeting, to study it. At the next meeting the planners would then rewrite the document, taking out any biased statements, anything that is not objective and add their own findings that could include statements by their unbiased retained experts. A vote should be taken by the planners to accept or deny the statement as amended. If accepted, the document then becomes the document of that board, not of the developer. In this case it should have become The Town of Kinderhook ZBA Findings Statement” It should then be the basis upon which the board makes a determination. This did not happen.
Richard Wetmore brought to the attention of the chair and attorney Gold that he felt strongly that the board should have more time to study this important and complex document. After given reasonable time (not 30 minutes) the findings statement should be read aloud by the board and evaluated by board members as they go along. Wetmore questioned if it was even legal for them to “take a vote in a moment’s notice.” Chairman Egan quipped, “Maybe you should have your own counsel to ask.” Gold apologized for the lack of time but did not offer an alternative.
Richard Wetmore also brought to the attention of the ZBA that the document was not objective and definitely slanted in Widewaters’ favor. This would be expected especially if written by Widewaters. It should have been evaluated, corrected and rewritten by the ZBA in committee.
After minimal discussion and minimal amendments, the ZBA voted to accept the findings statement with the few amendments as is. The vote was 3-2 with Wetmore and Bopp voting against acceptance. KNGG was not given a chance to view the findings statement before the meeting, during or after. The ZBA approved this document although it contained factual errors.
So here we have a situation where the ZBA voted to approve a variance based upon a findings statement that they changed after the vote on the variance was taken. The final findings statement was not the document upon which their determination to approve the variance was based. Their determination was based on the developer's finding statemen which Gold participated in and not on the amended one.
The ZBA then approved the “SEQRA Findings Statement” by a vote of 3 – 2 with Wetmore and Bopp voting against its acceptance. There was no discussion of this document before a vote was taken. In conclusion the ZBA clearly misapplied the law. Two ZBA members, Richard Wetmore and Thomas Neufeld, actually pointed out that the ZBA was not following the law. Self created hardship by Widewaters and other reasonable alternatives were not considered. Jeff Baker identified numerous flaws in the decision. KNGG had advocated the retention of an unbiased architect and this did not happen.
The work of experienced architect Alvin Knolls refuted Widewaters claim, of the then unlicensed “architect” Michael O’Shea provided by Widewaters. O'Shea who only got his NYS license on August 30. 2004, has been presented by Widewaters to the ZBA since November 2003 and prior that to the Planning Board. The ZBA was advised on September 2nd that O’Shea was not licensed but preferred to accept his word rather than that of a licensed experienced professional. (See www.nysed.gov/coms/op001opscr2?profcd=03&plicno=030261 )
The KNGG Board of Directors is currently evaluating the possibility of pursuing the legal case for an Article 78 (law suit). This would be the only way we could object to this determination that could have any effect. If you have any input on this consideration, please let us know by this Sunday. It was a pleasure see so many KNGG members at this meeting. Thank you. Allen Schaefer SEPTEMBER 21, 2004 KNGG and
DEMOCRACY ATTACKED
The
Register-Star Page A4 –
Editorial – Good Government Requires Civility - Attacks KNGG's right to respond
to irresponsible decisions of public officials.
I don’t
think I am over reacting by stating this editorial is promoting a non-democratic
process. Please read it and most importantly,
please reply. Allen Schaefer
. . . . .
. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
Hang in there, Alan and KNGG... I can see
nothing in your letter-to-the-editor, which
The
message of the latest Register editorial
Sam Pratt, Director
of Friends of Hudson, KNGG Advisory Board Member . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . The IndependentPage 7: Photo of Alvin
Knoll’s rendering of Widewaters’ Building 4/4A with a short story. Page 8: Letter -Plaza Roof Fits Kinderhook’s Heritage by Marco Marzocchi SEPTEMBER 20, 2004
"PLANNING BOARD ANGERED BY KNGG LETTER"
This
is the top front page headline of today's Register-Star.
This
action and statements by Ed Simonsen, Chairman and some members of the Town
Planning Board is being seriously looked into at this time by KNGG. An
appropriate response will be forthcoming.
At
this time we wish to stress that our letter was not a personal attack on Ed
Simonsen or any member of the Planning Board. It was a criticism on the
Planning Board's decision to approve the Widewaters project and nothing more
should be read into it.
We'll
Keep you updated.
SEPTEMBER 19, 2004 PLANNING BOARD ATTACKS KNGG
Dear Member: We have been advised that Ed Simonsen, Chairman, and a few members of the Kinderhook Town Planning Board made an “unprofessional and outrageous” attack on KNGG at last Thursday’s meeting. This apparently occurred as a response to a letter the KNGG Board of Directors wrote in disagreement with the PB's decision to approve the Widewaters application. This letter was published in last Tuesday’s Independent. (A copy of this letter is copied below for your convenience.)
Other sourses at the meeting report that Mr Simonsen was angry at KNGG because he believed parts of the letter to be a personal attack on him. Let me assure Mr. Simonsen, Members of the Planning Board and KNGG Members that this was not the intent nor do we believe that this is the meaning of what we said. We believe that Mr. Simonsed misintreperted the content
(Because of serious illness, I have not been able to attend any recent public meetings. However I expect to be back in full swing sometime next week.)
However, our Treasurer, Mark Litteken, was at this meeting. He is out of town for compassionate reasons. KNGG did have legal representation at this meeting as well and we are expecting a report on Monday. In the meantime, we will be gathering information on what happened. Once all the information is gathered and analyzed, KNGG will make an appropriate response.
Please stay calm and we will keep you informed. Respectfully yours, Allen Schaefer,
President The letter in question was sent to the local papers on August 30. The Independ and Register-Star printed it in their September 16th edditions.
To view this letter, please move down to the August 31, 2004 eNEWS Bulletin. SEPTEMBER 17, 2004 ALVIN
KNOLL DRAWINGS FOR KNGG NOW ON THE NET
YOU CAN NOW VIEW:
Six of several drawings Alvin Knoll made to show the ZBA that
Widewaters can place a traditional hip roof on their big box and still comply with the code. The building will
appear much less harsh than Widewaters wants to force on us. The KNGG Renderings
can now be seen on the KNGG web site! These drawings are being presented
to the ZBA Thursday evening.
The first
illustration on the home page is the Widewaters flat roof drawing.
Look to the
INDEX to your left.
Move down
till you reach WIDEWATERS ARCHITECTURE
click on KNGG
Renderings
and have
fun!
SEPTEMBER 14, 2004
Yes, Widewaters Commons is conditionally approved.
BUT WE INTEND TO
STOP
the BIG
BOX FLAT
ROOF
ZBA Determination to be made
Thursday - September 23rd
Town Hall - 7:00 PM
Please attend. Our numbers count!
NO
DETERMINATION THIS THURSDAY
KNGG has
learned that the Planning Board does not plan to make a determination on the
Dunkin' Donuts application to place a fast food outlet at the congested
intersection of Routes 9/9H. It is expected that Dunkin' Donuts will
present another new site plan to the board at Thursday night's Public
Hearing. Since the public will have had no chance to see the plans prior
to the hearing, the hearing should be kept open. KNGG will have legal
representation at this meeting.
IN TODAY'S
REGISTER-STAR
Van Allen seeks grant to preserve
farmland
KINDERHOOK -- Kent Van Allen and his sister Gail Santimaw are planning to pursue a grant that will help them keep their land forever farmable. Van Allen made a presentation with Renee Bouplon of the Columbia Land Conservancy (CLC) before the Town Board on Monday night. Van Allen and Santimaw own two parcels of a combined 70 acres along Route 9 near previously preserved land by St. Joseph's Center. With the help of the CLC, the two property owners would be indefinitely selling their rights to develop the property for anything other than agriculture. The grant, if approved by the state, covers 75 percent of the anticipated value. When explaining details related to the St. Joseph's purchase in January, CLC Executive Director Judy Anderson said basically, the value for the buyout is determined by calculating what the parcel could receive for full development minus the value of the land if it stays a farm. The anticipated value for the 70 acres wasn't discussed at the meeting. Bouplon told the Town Board that the town itself would not be required to pay any money to see the two parcels stay as farmland. The Town Board needs only to formally adopt a resolution for the grant application. The rest of the paper work gets handled by the CLC and the other affiliated parties. Bouplon also told the board that supporting the land deal is congruous with ideals in the town's master plan. Van Allen said the land in question is still being farmed, under an agreement with a farmer who rents use of the land. "It's been good farm land for a number of years," Van Allen told the board. Such agreements don't regulate what farmers farm on the property, nor do they guarantee that the land will be farmed forever. Bouplon said the agreement only leaves the land available for farming, with no other development. Council woman Mary Kramarchyk joined other Town Board members in voicing support for the project. "we're happy this is taking place," she said, pointing out the benefits preservation has on neighbors. Van Allen said the saved land will be nestled between several housing developments, providing the neighbors a view of something other than houses. Once the town applies for the grant, the state has to review the proposal with other applicants around the state. The deadline for submittal is early October. SEPTEMBER 14,
2004
3 KNGG ITEMS IN TODAY'S
PAPERS The letter to the editor
we e-mailed on August 30, finally made it in the Independent and the
Register-Star. The news relelease we
sent out previously was used by Matt Sheehey as a basis of an article he
wrote for Tuesday's Independent.
Be sure to watch Friday's
Independent for more KNGG news.
ANOTHER KNGG NEWS
RELEASE
Below is a copy of a
letter by our attorneys to the Kinderhook Town ZBA. This is part of a
packet that Young Sommer has produced which also includes a letter from
architect Alvin Knoll with more additional drawings he has made to
illustrate Widewaters' lack of need for a variance.
NEWS RELEASE
September 14, 2004
FOR IMMEDIATE RELEASE
Contact: Allen Schaefer - Home Office 758-8337
The following letter was written by attorneys Jeff
Baker and Jim Muscato on behalf of KNGG and
has been sent to the Kinderhook Town ZBA
members for their consideration of Widewaters request for a roof
variance. As you may know, the ZBA has called a "special hearing" for September
23, 7:00 PM, Kinderhook Town Hall.
Young, Sommer ... LLC
Young, Sommer, Ward, Ritzenberg, Baker &
Moore, LLC COUNSELORS AT
LAW
ALL WRITTEN CORRESPONDENCE TO: Executive
Woods, Five
Palisades
Drive, Albany, NY 12205 Phone: 518-438-9907 • Fax:
518-438-9914
)))))))))))))
September 14, 2004 Town of Kinderhook Zoning Board of Appeals P.O. Box P Niverville, NY 12130 RE: Widewaters Commons - Application for Area Variance
Dear Members of the Kinderhook ZBA: We represent Kinderhook Neighbors for Good Growth (“KNGG”) and submit the attached revised drawings by our architect, Alvin Knoll, to address the questions raised by the ZBA at the previous Zoning Board meeting. We have received notice that the ZBA has scheduled a “special hearing” for September 23, 2004 and appreciate the opportunity to provide you this information prior to the hearing. The attached drawings show, despite the ridiculous claims by the applicant to the contrary, that the roof for building 4/4a can be designed to meet each of the Town Code’s design requirements. Given that the Board specifically permitted KNGG to provide an example of a roof plan that complies with the Town Code, and since KNGG has done so, under the law, the Board must deny the area variance requested by the applicant. It would be arbitrary and capricious for the Board, at this point, after KNGG has gone to significant time and expense to provide multiple examples of a design that complies with the Code, to ignore the Code compliant alternative and grant the variance. Especially in light of the alternatives provided by KNGG, the applicant has offered no basis to this Board to justify the granting of the variance.
It was clear from the last Zoning Board meeting that the primary concern with the design provided by KNGG was the size of the cupola structure. In response to a question by Marc Gold, Mr. Knoll indicated that the cupola probably could not be reduced. However, upon further review of the plans, Mr. Knoll’s revisions to the roof design have significantly reduced the size of the cupola structure to 400 sq. ft. and a total of 9 ft. in height. Thus the building, including the cupola which is exempt from the height requirements, is only 49 ft. in height. In addition, Mr. Knoll has submitted an alternative design which includes a cupola that is only 128 sq. ft. In any event, each of these cupola are significantly reduced and are considerably smaller than the 4719 sq. ft. cupola allowed under the Code. (Even assuming, for the sake of argument that the structure is two distinct buildings.). Widewaters has continually refused to alter their design to try to meet the requirements of the Code. Widewaters has repeatedly stated to this Board that compliance with the Code is impossible or would require the construction of the equivalent of an 8-story building. The disingenuous nature of this contention is exacerbated by the reasonable Code compliant alternatives provided by KNGG. Courts have held that where an applicant is unwilling to alter their plans to comply with the zoning regulation or to need a less substantial variance, a denial by the ZBA is not an abuse of discretion. See Robbins v. Seife 215 A.D.2d 665 (2d Dept. 1995)(Petitioners application was denied because they did not attempt to comply with the zoning requirements and their difficulty was self-created.).
Contrary to the statements of Michael O’Shea, Widewaters’ consultant, who stretches logic when discussing the restrictions on the design under the Code, KNGG has come up with an alternative that Widewaters has ignored, casting doubt on whether Widewaters considered alternatives in the first place. Why was KNGG forced to come up with a design that complied with the Code? Further impairing the credibility of Mr. O’Shea and his statements regarding the design were his responses to the questions regarding his licensing as an architect. Initially, when questioned, Mr. O’Shea indicated that he received his license within the last year. However, when pressed further, Mr. O’Shea admitted that he, in fact, just passed his licensing test this past month. It turns out that from documents obtained from the State Education Department, Mr. O’Shea was licensed as an architect on August 30, 2004. (See Attached). The fact that Mr. O’Shea has been licensed as an architect for mere days may explain why Widewaters seems to be incapable of coming up with a design that meets the Code and why they proposed an alternative that was so outrageous. Since KNGG has provided this Board with an alternative that complies with the Code, it obviates any need for the variance and Widewaters fails to meet their burden under the Code. See Gottlieb v. City of Rye, 139 A.D.2d 617 (2d Dept. 1988); Goldstein v. Orbon, 65 A.D.2d 782 (2d Dept. 1978)(Board was correct in denying variance were there were viable alternatives available to the petitioners not requiring the granting of a variance.). Widewaters has not established that any “hardship” would occur if it were to build the roof in compliance with the Town Code. At best, Widewaters has offered in passing that the code compliant roof would be more expensive. However, Widewaters has submitted nothing in the record to substantiate this claim. Mere inconvenience is insufficient to establish that the applicant is entitled to a variance from the zoning code. See Fuhst v. Foley, 45 N.Y.2d 441 (1978). Further, any “hardship” claimed by Widewaters is entirely self-created. As has been submitted by KNGG many times, Widewaters knew that by applying under the new Town Code, it would be subject to the design requirements. The Zoning Board should not be placed in the position of having to guarantee the investment of a careless developer. See Stengel v. Town of Woodstock, 155 A.D.2d 854 (3d Dept. 1989). In any event, any financial hardship alone is insufficient to justify the granting of the variance.
Finally, in contrast with the flat-roof design proposed by the applicant, the design proposed by KNGG is entirely consistent with the character of the community as it is expressed in the new Town Code. The Town Code sets forth in a clear fashion its vision for maintaining the rural character of Kinderhook. The vision set forth in the Code accepts that commercial development in Kinderhook is inevitable. But the Code takes the necessary steps to ensure that despite the commercial development, the Town will protect the rural character of the community by imposing design standards which avoid the standard “big-box” development. This Board should not ignore the delicate balance sought to be maintained by the Code on this initial application under the new Code and eviscerate the design standards for all future large development projects by granting the variance. In conclusion, Widewaters has shown nothing that would indicate that the area variance is necessary. They face no impossibility regarding the roof design, rather just an option that they do not prefer because it may be more expensive. Again, we should emphasize that we are not trying to dictate building design but are merely pointing out that Widewaters' compliance with the Code is not impossible and a variance is not necessary.
Very truly yours,
Jeffrey S. Baker James A. Muscato II
cc: ZBA Members Marc Gold, Esq. John Hoggan Jr., Esq.
SEPTEMBER 12, 2004
The following rebuttal has been sent to the 3 local
papers:
To the Editor: Appropriate Design Should Mitigate Massive
Big Box The Independent has written a badly informed editorial ("Lower is Better in Widewaters Plaza" 9/10/2004). In advocating an industrial strength flat roof for the big box store, the Independent actively promotes the kind of outdated sprawl that has ruined so much of rural and suburban America. Many design decisions
already allowed by the Kinderhook Town Planning Board: a huge parking lot,
building setbacks, massive structure not broken up into smaller units,
industrial strength lighting, and minimal landscaping are permitting this
developer to install what is a ghastly prototype for future development. A
throwback flat roof only further exacerbates the old-fashioned cheap shot
strip mall character of this shopping center. It was KNGG that proposed the enactment of a conservation
easement on the back nine acres and the small green area at the entrance, which
is now in the improved site plan. KNGG urges the Planning Board and the ZBA to
exercise some muscle and require appropriate signage rather than allowing the
developer to install the usual ugly, lit-from-interior branded signs. Signs
should be small, wooden, and lit with directed spotlights that can be extinguished at closing. Anyone who has seen the Hannaford’s store in Red Hook knows
that a hipped roofline is far preferable to a flat roof on a structure that is
already far too big.
This because the hip roof design softens the harshness of the big box. Now that the project has gotten the green light, if Widewaters is as concerned about the view as they would have the ZBA believe, they should change the plan. We suggest putting building 4/4A (Hannaford) on the north side of the plot where it wouldn’t block any view. Put the restaurant in the southeast corner and the remaining building in the southwest.
Allen Schaefer, President Mark Litteken, Treasurer Deirdre Leland, Secretary Margaret Moran Alexandra Spivy
SEPTEMBER 9,
2004
IMPORTANT MEETING SEPTEMBER 23rd
Please
plan to attend the special ZBA meeting on Thursday, September 23rd at 7:00 PM at Town Hall. We have reason to
believe this meeting will be very important for KNGG.
In is expected that the ZBA will make a determination on a variance for a flat roof requested by Widewaters. Because another breakthrough has occurred we ask you attend the 9/23 meeting. We will be able to give you more details in a few days.
DUNKIN’
DONUTS 2 of 3 Variance requests DENIED! Planning Board Public Hearing declared still
"open" and to resume on September 16th with the good possibility of the Planning Board
making a determination on the project. NEW KNGG PROJECT: THE NATIONAL REGISTER OF HISTORIC PLACES
There are many historic sites in the Town of
Kinderhook including Niverville, Valatie and the Village of Kinderhook that are
not listed on the National Register. In order to preserve our rural small town
character, KNGG will be working to have these sites placed on the Register. This will not only
protect the site from developmental exploitation, but will help preserve some of
the surroundings as well. We
will be working closely with historian Ruth Piwonka on this project. If you would like
to get involved, please send us an e-mail. We will advise you in the near future
of a briefing date and how you can help make this project succeede.
SEPTEMBER 7, 2004
A MATTER OF POST MEETING DECEPTION AT ZBA?
At the end of July ZBA meeting, but before it
was adjourned, John Hoggan, attorney for Widewaters, requested that Widewaters
be given a special meeting by the ZBA to “expedite the process.” Sean Egan, ZBA
Chairman, strongly but politely replied, “The ZBA meets next on September 2nd. We’ll see you then.” Thursday night’s ZBA meeting adjourned at
approximately 11:00 PM. After the meet adjourned and after our
attorney, Jeff Baker, and others left the building, Widewaters’ attorney John
Hoggan approached ZBA attorney Marc Gold asking that Widewaters be given a
“special” meeting so the ZBA could make a sooner determination on their variance
for a flat roof.
Knowing of Widewaters’ manipulative ways,
this comes as no surprise. What does come as a surprise is that
subsequently Sean Egan asked members of the ZBA, as they were their belongings
to leave, to agree to set a special meeting to make a determination on
Widewaters variance.
ZBA member Richard Wetmore opposed any special treatment for Widewaters
explaining that he felt they have been given too many privileges already. After Wetmore left
the room the date of September 23rd was agreed
upon. What is unprecedented here is what they did
and it is probably illegal that this “special” arrangement was made after the meeting had adjourned and not all the members
were present.
The press had departed and we found out by accident. Now is the time to ask why. We have asked our
attorney to look into this matter for us.
This not the first time we’ve seen
questionable dealings at the ZBA favoring Widewaters. Just last month the
ZBA sent architect Alvin Knoll’s rendering (of how Widewaters could put a roof
on the building in question and be in compliance with the code) to Jim Green
(Town engineer during the Widewaters application) at Spectra engineering. Jim had one of
Spectra’s architects evaluate the rendering for safety. The evaluation was
sent in advance to Widewaters, to Widewaters attorney and to the ZBA. The evaluation was
not sent to KNGG or our attorney. A mere oversight we are told. Or was it? Green claims he sent a copy of the evaluation
to everyone in the cc list. Jeff Baker and KNGG are on the cc list. We did not receive
one. Why? “SPECIAL” ZBA MEETING SET FOR THURSDAY SEPTEMBER 23rd - 7:00 PM – TOWN HALL
AGENDA: Intention to make a determination on
Widewaters variance for a flat roof. SPECIAL ACTION: Please attend. SEPTEMBER 3, 2004
TO:
All KNGG Members
KNGG FIGHTS IT OUT AT ZBA
Tempers flew between attorneys on
both sides Thursday night as KNGG fought tooth and nail with Widewaters. Widewaters is still
insisting they cannot build their building 4/4A to comply with the code. The only way they
want to build it is with a flat roof. Flat roofs are not in compliance with
Kinderhook Town code so Widewaters filed for a variance back in November of
2003. The Planning Board made the grave
mistake of taking Widewaters word for their instance that only a flat roof was
possible and sent the ZBA a recommendation for the variance. Right here is where the Town needs
to do some rethinking. 1.
Widewaters knew the rules of the game when they applied to
the Planning Board and when they decided they wanted to be evaluated under the
new code. 2.
So Widewaters designed a footprint for a building knowing
they had no intention in complying with the code because they intended to fit it
with a flat roof. 3. When Widewaters sho |
