The Planning Board is poised to approve a wetlands permit for an accessory structure at 7 Chequit Avenue over numerous objections expressed by many who appeared during three lengthy public hearing sessions over the summer.
Planning Board Chairman Ian McDonald, an architect, designed the project. As a result, he’s recused himself from the board’s hearings and discussions relating to it. Marcus Kaasik presided over the board’s internal deliberations on Tuesday in his absence.
At one point, attorney Kimberlea Rea, joining the meeting via Zoom and representing neighbors who have objected to the structure, attempted to break into the conversation. But the board’s attorney, Elizabeth Baldwin, rebuffed her efforts, noting that the public hearing was closed and no additional comments were allowed.
Earlier in the meeting, the board unanimously approved a resolution to grant the Weinstein/Hensley project a wetlands permit at 28 South Midway. The board held a public hearing on the Dawson/Dimon project at 57 South Ferry Road. After deliberations, Baldwin said she’d draft a resolution for approval at the October 10 meeting.
7 Chequit Avenue
Regarding public input on the project at 7 Chequit Avenue, Kaasik said, “We listened to what you had to say and read your letters with interest.”
However, he noted the Planning Board didn’t write the wetlands code; that’s up to the Town Board. He said the planners’ role is to ensure that applicants follow the rules as written, no matter how flawed the code may be.
Kaasik said there is a general misunderstanding about the wetlands code regarding the area it protects. He said the code identifies two areas that together govern activity within 100 feet of a wetlands boundary.
The first 75 feet is the vegetative buffer; the next 25 feet is the adjacent regulated area. Kaasik said no new square footage expansion is allowed in the vegetative buffer. “But in the adjacent regulated area, we always allow construction,” he said.
While the Planning Board has only recently taken over wetlands permit review from the Town Board, it has long served in an advisory capacity to the Town Board on the issue.
Kaasik said that some people believe the Town should scrutinize the adjacent regulated area more closely. “That argument comes up very often,” he said. “But the law is that construction is allowed.”
In reviewing a proposal, board members must determine whether an applicant requests construction in the 75-foot vegetative buffer. In the case of 7 Chequit Avenue, none was proposed, Kaasik said, a finding the board’s engineer, Joe Lombardi, confirmed.
Next, he said, the board should ask whether the construction in the adjacent regulated area is permissible. Kaasik said the proposed construction at 7 Chequit Avenue was permissible, and Lombardi confirmed this.
Member David Austin said much of the commentary concerned whether the proposed structure fit the definition of an accessory apartment — not allowed in a waterfront setting — or an accessory sleeping structure — permitted everywhere.
But the definition of an accessory apartment, Austin said, is “very specific in our written code,” including its description of a kitchen that must have “a stove plus either or both a refrigerator and sink.”
Despite numerous opinions expressed to the contrary during public hearings, the proposed food preparation room (for lack of a better term) has a refrigerator and sink but no stove, so it doesn’t meet the code definition of a kitchen.
Criteria for wetlands permit issuance
Baldwin asked members to go through the code’s seven criteria for wetlands permit issuance so that she could note any considerations to include in a resolution for the October 10 meeting.
Julia Weisenberg said she found the applicant robustly demonstrated that the project meets six of the seven criteria. The only item not sufficiently addressed, she said, was No. 5, which requires an applicant to demonstrate “there are no practical alternatives which allow the project to be constructed outside the regulated area.”
As some have suggested, making the building smaller is an alternative, Austin said, but the size of the proposed building isn’t relevant to its wetlands permit. The wetlands chapter provides no guidance relating to the size of a structure in the adjacent regulated area.
As Matthew Fox put it: “We can’t dictate the size of the thing unless it violates the code.”
“Our job is to understand, and try as much as possible, to make sure there’s no adverse effects to the wetlands,” Austin said. The proposal “seems to have met the criteria of not having a negative impact on the wetlands, which is what our job is.”
Kaasik noted that the proposed site was formerly occupied by a “very, very huge house. Like a Nostrand Parkway-sized house.”
Weisenberg said she couldn’t approve the project, given her view that the applicant needed to meet all seven criteria. Baldwin said all board members didn’t need to agree on all criteria. Austin, Fox, and Kaasik said they were satisfied that the application met the code requirements and were ready to vote in favor at the next meeting.
Weinstein/Hensley wetlands permit approval
Robert Weinstein and Eric Hensley want to renovate an existing single-story house at 28 South Midway fronting on Menantic Creek to include a deeper foundation, convert an enclosed porch and garage to living space, and add a new roadside dormer, swimming pool, patio, well, and septic.
Last month, the board held a public hearing and kept it open to receive the required landscaping plan. “It was very straightforward,” McDonald said. “There weren’t any issues.”
McDonald said the board reviewed the criteria for permit issuance and felt the application met the requirements. He read from the resolution prepared by the board’s attorney.
“We find that the proposed project will not negatively impact value, function or size of the wetlands do not we find that the proposed project will not negatively impact value function or size of the wetlands because the project will not be expanding the footprint.”
He said the project offers mitigations to improve current environmental conditions, such as replacing a cesspool 55 feet from the wetlands boundary with an I/A system 100+ feet away and adding drywells for stormwater collection.
“There’s a minor expansion of a small deck on the waterside, but that falls within the one-time exemption of the current code,” he said. The code allows a 100-square-foot area of intrusion.
The resolution included typical requirements for construction in sensitive areas, such as wire-backed silt fencing and keeping construction vehicles off the street. The project calls for replacing an asphalt driveway with permeable, clean gravel. A landscape plan plots the vegetative buffer. Upon completion of planting, the Town’s environmental consultant will review the project to confirm plantings are as described.
Dawson/Dimon wetlands permit hearing
The board held a public hearing on the application of Jim Dawson and Roz Dimon for their project at 57 South Ferry Road, opposite the Town Medical Center. It backs up onto Mashomack Preserve, with freshwater wetlands behind the house.
They’re seeking a wetlands permit to relocate an unpermitted and noncompliant habitable accessory structure with an attached deck and stairs. It’s used as an art studio and the goal is to legalize it and comply with zoning and wetlands rules.
They also want to construct a new 15- by 15-foot addition to their house partially within the adjacent vegetative buffer. The new construction would have a full foundation with storage and a new master bath on the first floor. The work would add 213 square feet in the adjacent regulated area.
The plan also calls for removing the outdated septic system from this area and constructing a new I/A system more than 100 feet from the wetlands boundary.
Matt Sherman of Sherman Engineering Consultants spoke on behalf of the couple, who also attended. He noted that when the Conservation Advisory Council reviewed the proposal, members pointed out that moving the studio might require cutting down two or three mature trees.
Working with the ZBA
The CAC, he said, suggested the couple instead ask the Zoning Board of Appeals for a variance to leave the studio in place (it intrudes into a setback along a property line with Mashomack Preserve).
If the ZBA agrees, they’d still replace a deck and stairway leading to the studio with smaller steps to reduce intrusion into the adjacent regulated area. If the ZBA refuses, the couple will move the studio as indicated on the wetlands permit application.
Sherman said the CAC requested a complete vegetation plan. But the couple intends to leave all vegetation in place, except for a few bushes that will be relocated.
Baldwin, the attorney, said she did not believe the board could approve the studio to remain in the current location “because it was proposed to be moved.”
McDonald said the CAC was following a longstanding practice on the part of the Town Board (which formerly managed wetlands permitting) to try to work with the ZBA on projects that might also require zoning variances.
Sherman said the most direct way to accomplish the project was for the Planning Board to approve the wetlands permit as proposed. That way, the couple could begin work on most aspects — installing the I/A system and drywells and building the addition — while applying to the ZBA for a variance, allowing them to leave the studio where it is.
If the ZBA agrees, Sherman said they’d apply for a new wetlands permit to allow the minor intrusion of the proposed new studio stairway.
Misunderstanding the code
During public comments, Pam Demarest asked why the Planning Board would approve expanding the house. McDonald said that the Town Code allows the expansion of a structure in the adjacent regulated area. Demarest said she understood the code required all new construction to occur beyond 100 feet.
McDonald said that while new septic systems must be placed 100 feet from the boundary, there is no limit on construction within the adjacent regulated area.
“One is allowed to expand within the adjacent regulated area,” he said. “The reason for requiring a wetlands application is that there’s an extra level of review and control of mitigating features.”
Other Planning Board business
The board also discussed proposed changes in the White Subdivision to the planting schedule along Artist’s Lane, which leads to areas purchased by the Town as open space.
The family wants to reduce the number of trees planted along the roadside, saying the spaces are already too crowded. McDonald suggested that the family might instead provide low-growing shade-tolerant shrubs, filling gaps where deer have eaten the lower portions of the existing trees.
However, McDonald said the board requires an updated planting schedule detailing the type and number of plants that will replace the trees on the original plan.
The board also discussed a lot line modification proposal at 6 Daniel Lord Road, including a problematic 15-foot-wide strip of land labeled “Unknown Owner.” Lombardi, the board’s engineer, said research showed the land does belong to 6 Daniel Lord Road.
“There was an error in the deed at some point that just got carried over,” he said. But other documentation, including a tax map, indicates ownership. The board’s attorney suggested that the applicant’s attorney or title company sign the documentation.
Lombardi noted other minor but meaningful corrections requiring correction before the board can fully consider the proposal.
McDonald said he wants to use this lot line revision to reiterate the board’s policy of having property owners first receive subdivision approval from the county, as other towns do. Lombardi said he didn’t expect that would be an exceptionally lengthy process.
Also discussed, but still being decided, was whether properties containing wetlands should be reviewed in parallel by the Planning Board and ZBA. Baldwin said she favored having the ZBA determine first, as the approval or denial of a variance could significantly alter relevant details in a wetlands permit application.
