Kinderhook Neighbors for Good Growth

October 6, 2004

To The Editor:

I am writing in response to your recent editorial favoring the flat roof variance granted to Widewaters Commons by the Kinderhook Zoning Board of Appeals. I believe that if your were fully aware of the details of the dispute you would have arrived at a different editorial conclusion.

At a special meeting of the Kinderhook Zoning Board of Appeals 9/23/04 a variance to build a flat roof over a 47,000 foot Hannaford supermarket with an attached 15,000 square foot group of retail stores was granted by a 3 to 2 vote of the ZBA. I had presented to the ZBA three different roof designs to prove that a complying pitched roof over this structure could be built and therefore a variance should not be granted.

In a letter dated 9/20/04 to the ZBA by Hannaford store engineers they criticized my code complying pitched roof plans submitted earlier in September to the ZBA. They noted that columns have to be located to suit aisle and shopping circulation requirements, that high spaces are required for their duct work and large flat roof areas are required for their HVAC and refrigeration equipment and therefore a pitched roof would not be usable for their needs. They note that ceiling heights cannot be as low as 12 feet high in various areas and misrepresent the ceiling heights that I show stating they would be lowered to 9 feet. They state that the roof drainage troughs I indicate would eventually leak and snow melting systems would require that perimeter insulation would have to be left out and therefore would be contrary to energy codes. They are not satisfied that the area formed by the pitched roof over the higher center portion of the structure will comfortably accommodate their HVAC equipment and that I did not show in my schematic plans access to this space.

The overhead space can be enlarged by slightly lowering the 20 foot high center ceiling structure or locating this equipment in a cellar space. There are many large supermarkets in major US cities, in NYC most are in apartment buildings. These supermarkets do not have access to large roof areas above their stores or in many cases any roof areas for their HVAC and refrigeration equipment. This equipment is located either in their stores or in their cellars. Hannaford can do the same and if they desire, their condensing units can be placed on the ground at their building’s exterior. I have extensive experience designing apartment buildings with ground floor stores in NYC. Columns, in these buildings, are located to suit apartment configuration, this column configuration is carried down through the stores, consequently the store circulation is designed to adapt to the column locations. Hannaford engineers can adapt the shopping circulation space to fit the column placement that I indicate or they can change the column placement shown on my schematic plans. Steel framing, particularly for a single story building, is flexible. Insulation is also a flexible material and can be properly installed to protect the building perimeter under the snowmelt system. Hannaford does not want to build a pitched roof because it is more costly, which the code states is not a valid reason to grant a variance.

Architectural design is a give and take process, a process that QKP Design, the architects’ for Widewaters, never demonstrated with their design presentation before the Town Planning Board or ZBA. They only showed pitch roof designs that were so grossly outlandish, up to 88 feet high in an attempt to prove, as they repeatedly stated, that it was “impossible” to design a code complying pitched roof over the very large plan “footprint” that they created for this structure.

I have discussed the roofing and drainage trough configuration with a local friend who spent his career as a roofing contractor, roofing major buildings such as the NYC Public Library with pitched roof configurations and perimeter drainage troughs including snow melting systems. He advised me that there are simple membrane roofing systems that are both attractive and inexpensive and highly effective that can be used either in the drainage trough areas alone or over the entire roof, or the roof can be partially covered by a metal roof starting above the drainage trough that could extend over the remaining pitched portion of the roof.

Unfortunately, the ZBA was willing to accept the Widewaters attorney’s position that my recent designs should not be admitted for consideration before the board since statements by the public were no longer to be heard. So rather than discuss and evaluate the merits and delve into the unsubstantiated claims of the applicant, to the detriment of Kinderhook and the validity of its new code, the ZBA granted a zoning variance for the flat roof with the rationale that a complying pitch roof would not be practical.

They chose to ignore the statements of the engineer retained by the Town that my initial pitched roof design complied with the code and they refused to examine the later submissions that I proposed that responded to the personal objections of some of the ZBA members. These later designs were sent to the ZBA members prior to 9/23/04 meeting and one of these designs was published in The Independent.

Over many years of my architectural practice I have appeared before a number of ZBA’s in different communities, their focus was always on meeting the requirements of their code rather than being quick to grant a variance and ignore professional advice and proofs that indicated the variance was uncalled for.

The ZBA majority was willing to uncritically accept gross misrepresentations by representatives of Widewaters, such as those demonstrated in the letter published in The Independent 9/21/04, written by Marco Marzocchi, one of the attorneys representing Widewaters. In that letter he stated that the reduced cupola in one of my designs would require a variance --- it simply does not. What does require a variance, however, are the four non-complying gables on the Widewaters submission --- one over the Hannaford main entry and three at the attached stores. These gables are all at an approximately 5/12 pitch --- 8/12 minimum pitch is required. These non-compliances, which also require a variance have been ignored by the Planning Board and the ZBA. They should not be ignored.

Mr. Marzocchi stated that my designs are “unsuitable” for Hannaford. My designs are entirely in keeping with supermarket design as built by the Valatie Grand Union, the Chatham Price Chopper and the Dewitt Wegmans. I examined the architectural and structural plans filed with the Town for the Valatie Grand Union and made copies of sections through the Grand Union building. I provided a copy of the plan of the Grand Union building to compare the similarities of that building with my designs. The Grand Union ceiling heights at their perimeter areas are 11 feet. These comparisons were attached and available for the 9/23/04 special meeting of the ZBA. Since my design is “suitable” for Grand Union, Price Chopper and Wegman – it is suitable for Hannaford.

Possibly the most blatant example of Mr. Marzocchi’s false statements is his lengthy exhortation of the benefits of the “traditional mansard roof” over the Hannaford store that he states is proposed by Widewaters and how it is in keeping with Kinderhook’s historic heritage. However, there is no mansard roof over the Hannaford store, his argument was total nonsense. The Hannaford store has a flat roof and two gable roofs. The attached retail stores have a partial hip roof at its perimeter and a non-complying flat roof over the major part of the stores.

Contrary to Mr. Marzocchi’s statement that KNGG and I want to stop the store --- we have accepted the fact that Widewaters Commons will be built. We want it to be built in compliance with the code --- my designs demonstrate that they can be and that there was no basis for granting a variance for non-complying buildings 4 and 4A.

At the 9/23/04 ZBA special meeting an alternate member of the ZBA who could not vote but could speak stated that he was troubled by the ZBA procedure and vote. He stated that if he could vote, he would deny the variance. A local architect, who had seen the published elevation of my later proposal and followed the procedures and published letters, asked me “how could the ZBA possibly grant this variance?” He was not the only one to ask me this question. Kinderhook deserves better.

Alvin D. Knoll, Architect

Valatie NY 12184

The following letter written by attorneys Jeff Baker and Jim Muscato on behalf of KNGG and has sent to the Kinderhook Town ZBA members in 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

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Phone: 518-438-9907 • Fax: 518-438-9914

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jbaker@youngsommer.com

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.

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106 McCagg Road Valatie, New York 12184 518.392.2659 Fax 518.392.97