As expected, the Planning Board on Tuesday granted a wetlands permit for an accessory structure for Chequit Avenue LLC over significant community opposition but provided few details about its decision-making.
The new 2,287 square-foot building — which opponents decry as a separate home masquerading as an accessory structure — will be 77 feet and 6 inches from tidal wetlands. Opponents say the Planning Board should invoke a zoning rule that bans new construction within 100 feet of wetlands. The Planning Board has said it has no jurisdiction over zoning and must work within what’s covered by the Town’s wetlands code.
The Planning Board also approved the Dawson/Dimon wetlands permit at 57 South Ferry Road, extended a deadline for a lot line adjustment requested by Robert Lipsyste and Lois B. Morris at 29 West Neck Road, and amended conditional final approval for the subdivision of the Nelson C. White Estate, which includes lands purchased by the Town using Community Preservation Fund revenues. During a work session, the board reviewed other applications. Find complete coverage at “Planning Board: Dawson/Dimon wetlands permit and other business.”
Chequit Avenue LLC wetlands permit
A public hearing for the 7 Chequit Avenue project began on June 13, shortly after the Town transferred responsibility for wetlands review to the Planning Board. In hours of testimony over three sessions through August 15, neighbors and representatives of the Shelter Island Heights Property Owners Corporation (SIHPOC) objected to the proposal.
The board chairman, Ian McDonald, has recused himself from discussions and voting on the project. He’s an architect, and the homeowner Deborah Shepherd hired him to design the new accessory sleeping quarters on her large waterfront lot. Here’s a copy of the permit application saved on our website.
The first floor of the proposed accessory sleeping structure has a covered waterfront porch, a great room with a living area and dining area, and a kitchenette. While not technically a kitchen, it includes a large island for food prep, a refrigerator, a sink, a dishwasher, and a pantry. There’s also a powder room off the entry foyer.
A primary bedroom with an ensuite bath, a second bedroom, a space designated as a den/office, another full bath, and laundry and mechanicals are located upstairs.
Planning Board members discussed the application during their September 14th work session, and their attorney drew up a resolution to reflect their remarks, albeit in more formal language.
In an unfortunate mistake, the board clerk, new to the job, inadvertently failed to launch the Zoom connection when Tuesday’s meeting began. This left out online participants for the first seven minutes or so. During this time, the three board members present (sans McDonald) endorsed Shephard’s permit application.
Making their work impossible to follow
However, those in attendance at Town Hall were also mainly in the dark because the Planning Board doesn’t make draft resolutions public.
The board’s attorney, Elizabeth Baldwin, said keeping drafts private until they’re signed off is a common practice for planning boards. At Tuesday’s Town Board work session, Town Attorney Stephen F. Kiely agreed it was typical.
He said that “all documents that they’re going to be discussing should be made available and posted, but a resolution is a little different.”
But that doesn’t comply with how the Town Board behaves or with the spirit of New York State’s rules for “Conducting Public Meetings and Public Hearings.” This document, prepared by the Division of Local Government of the Department of State, notes, “Democracy, like a precious jewel, shines most brilliantly in the light of an open government.”
It calls upon all public boards that maintain “routinely updated websites” to provide materials up for discussion “to the extent practicable at least 24 hours prior to the meeting.” These materials include public records associated with the meeting agenda “as well as any proposed resolution, law, rule, regulation, policy or any amendment thereto, scheduled to be the subject of discussion.”
Whether or not the Planning Board’s action contravenes state intentions for open meetings, the failure to provide drafts makes it nearly impossible for attendees to follow along.
Cryptic dialogue
This is especially evident when board members refer by heading abbreviations to specific lines in the unpublished resolutions. That was the case during an exchange later in Tuesday’s meeting regarding the Dimon/Dawson wetlands permit request.
McDonald: “If we’re all OK, then I’ll make a motion to accept Resolution 26 of 2023 with the removal of H3.”
Member David Austin: “H2 of the approved landscape plan?”
McDonald: “It’s H2, but it’s also H3C.”
Baldwin: “Right.”
McDonald: “So, H2 and H3?”
Austin: “Yep. I’ll second that.”
It’s natural for committee members to use such shorthand when referring to a document before them. But from the audience’s perspective, this results in unnecessarily cryptic dialogue.
If members of the public — including interested neighbors — had been able to read the draft, they could see that H referred to “Conditions of Approval,” that H2″ was the Approved Landscape Plan, and H3 “Additional Comments and Time Limitations.”
So, H3C was the requirement that “prior to the issuance of a public permit, [the] applicant shall submit a vegetation plan to the board for approval.”
Given the heightened attention to wetlands permitting since the Town Board shifted responsibility to the Planning Board, it may behoove the Planning Board to adjust its practice and make drafts available in advance. This may improve transparency and build community trust in this new procedure.
7 Chequit Avenue resolution
The draft resolution for 7 Chequit Avenue — which I requested and received during the meeting (here’s a link) — is 10 pages long.
It includes findings of fact and the board’s determination “based upon the application, the evidence received at the public hearings before the board, all documents contained in the Boar’s file and which were received prior to the close of the record, and any inspections made by members of this board.”
In short, it describes the Planning Board’s view of the matter and the reasoning behind the final decision. All of which would’ve been helpful for attendees during the meeting.
One of the key “Findings of Fact” relates to a concern raised by the Conservation Advisory Council, among others, that the structure may be used as an Accessory Apartment, which Town Code does not permit in the Near Shore Overlay (i.e., all waterfront properties and their close upland neighbors).
“While the Planning Board acknowledges the CAC’s review and recommendation, the Board respectfully disagrees with the CAC’s description of the use as an Accessory Apartment. As noted by the Building Inspector in his letter of denial dated 2/7/2023, the proposed use of the property is an ‘Accessory Sleeping Structure”‘ and, therefore, not an ‘Accessory Apartment.’ There is no prohibition against an ‘Accessory Sleeping Structure’ within the Near Shore Overlay District. The Planning Board and, similarly, the CAC, is without authority/jurisdiction to overturn the determination of the Town’s Building Inspector.”
The draft resolution likewise directly addresses other concerns raised during the public hearings, saying the applicant adequately responded to neighbors and SIHPOC questions about tidal flow and the height and size of the building.
SEQR and FEMA
Regarding State Environmental Quality Review (SEQR), the draft resolution states: “The board considered but disagrees with the neighbors’ concerns that the proposed project is a [SEQR] Type I action.”
Instead, the board concluded the project is a Type II action, which by definition allows: “construction, expansion or placement of minor accessory/appurtenant residential structures, including garages, carports, patios, decks, swimming pools, tennis courts, satellite dishes, fences, barns, storage sheds and other buildings not changing land use or density.”
The permitted land use in the zone allows “not more than one accessory building for sleeping accommodations.” Furthermore, the board noted that the Town Code doesn’t limit the size of such buildings. “This proposed structure is not changing the land use (single-family residence) or adding any additional density to the property, such as a second single-family residence or an accessory apartment.”
Such apartments, the board noted, include kitchen facilities, which Town Code defines as having “a stove plus either or both a refrigerator and sink.”
“As the structure does not offer kitchen facilities, as defined in the Town Code, then the proposed project is a Type II action pursuant to SEQR.”
The board also pushed back on Federal Emergency Management Agency flood zone control concerns. “The Town Building Department does not issue a specific FEMA permit,” the draft says. “Rather, the Building Department will make sure that the project meets the specific flood zone requirements and issue a Flood Elevation Certificate after the project is complete.”
Zoning issues
The planners also rejected SIHPOC recommendations to refer the application to the Zoning Board of Appeals to determine whether additional approvals may be required.
“The Planning Board’s authority to refer code interpretations/questions to the ZBA is limited to questions regarding subdivisions,” the draft resolution says. “The Town’s wetland code does not provide the Planning Board with the authority to refer questions of interpretation of Chapter 133 [the Wetlands code] to the Zoning Board, as it does in the Subdivision Code.”
Moreover, the board found that individuals can apply directly to the ZBA when disagreeing with the Building Inspector’s determinations. In this case, that would be anyone disputing the Building Inspector’s “Notice of Disapproval” dated February 7 — a denial of a building permit based on the Town Code requirement for a wetlands permit.
From the draft resolution: “Had there been concerns regarding the accuracy of the notice of disapproval, the Town Code provides, ‘[t]he Zoning Board of Appeals may hear and decide appeals from and review any order, requirement, decision, interpretation or determination made by the Building Inspector/Zoning Officer.”
The draft resolution cites case law in concluding that “no application has been made to the Zoning Board appealing the Building Inspector’s February 7” determination. The Planning Board concluded, “It may not circumvent these procedures by referring zoning questions to the ZBA.”
Later in the meeting, McDonald repeated his assertion — backed by the board’s attorney — that an area of the Town Code that bans new construction within 100 feet of wetlands is a zoning matter over which the planners have no jurisdiction. Furthermore, he argued that the code reference is a “scrivener’s error” that he’s asked the Town Board to correct. (Find additional details in this post.)
In its draft resolution, the Planning Board refers to specific statutory requirements for wetlands approval beginning at the bottom of page 8. I asked the board clerk whether any changes were made to the draft before the vote, and she said her notes reflected that no alterations were made.
According to the clerk, at the outset of the meeting, with Zoom inadvertently down and McDonald recused, the three remaining members present — David Austin, Matthew Fox, and Marcus Kaasik — voted to approve the resolution.
Julia Weisenberg, who was absent from the meeting, said during a previous work session that she felt the request had fulfilled six of the seven criteria for approval, and as a result, she would not vote in favor.
‘Have some mercy on our clerks’
Once let into the meeting, Zoom attendees (myself included) used the “raised hand” symbol to attract the board’s attention. But McDonald didn’t call upon anyone until about an hour later, during a public hearing on another matter.
At that point, Kimberlea Rea, an attorney hired to represent neighbors of 7 Chequit, questioned the validity of a meeting that excluded online participants.
At Wednesday’s Town Board work session, Kiely — the Town Attorney — agreed with Baldwin’s response to Rea that the meeting was legal “and votes taken prior to any issues with the recording are still valid.”
“It was advertised as an in-person meeting,” Kiely said. As none of the Planning Board members participated via Zoom, “the videoconferencing procedures were not triggered.”
“It’s unfortunate that the public that was waiting and on Zoom didn’t get an opportunity to see it, but as far as being a valid exercise of authority, I think it is,” Kiely said.
Councilwoman Meg Larsen, a former Planning Board member, said technical glitches have happened. “Unfortunately, it was with an application that people are passionate about.”
Larsen said the clerks’ job has become more complex, especially at the start of meetings. They’re responsible for seeing that participants have the needed materials, “but now you also have to manage the entire meeting being held online, where people are constantly entering and leaving.”
“You have people who are unmuting themselves in speaking, and you have to pay attention to that. You have people who are trying to Zoom bomb you and put unwanted content on everybody’s screens. It’s a lot of juggling.”
She asked that members of the public “have some mercy on our clerks.”
Editor’s Note: A related beef is that the Town removes permit application materials from its website after voting occurs, even though it could provide an archive for at least four months following a decision when Article 78 challenges may be filed. While details are available by Freedom of Information request, leaving them up for a bit longer could result in less hassle for the Town Clerk’s office.
