Finds shed violates code
By Liz Schevtchuk Armstrong
Cold Spring’s Zoning Board of Appeals last week revoked the certificate of occupancy for the backyard shed at 14 Stone St., finding that the structure, which has pitted neighbor against neighbor, violates village code provisions on setbacks — the appropriate distance for buildings from property lines.
The ZBA declared that the certificate of occupancy “was issued in error because the replacement shed” — the structure in question succeeded an old, decaying shed in the same location — “was constructed to increase the non-conformity of the side-yard setbacks in violation of the village code and is hereby revoked.”
However, while ruling on a crucial point in favor of Andrew Hall and his wife Susan Peehl of 13 Fair St., who raised the setback issue, the ZBA likewise found that the pair “failed to meet their burden of proof with all of their remaining allegations” against the shed.
The ZBA acted in the case March 12 by voting 4-0 to adopt a resolution laying out its conclusions. For two years or more, Peehl and Hall have challenged the shed on various procedural grounds. Built by Paul Henderson and Beth Sigler, it stands kitty-corner behind the Peehl yard.
The latest ZBA meeting proved as contentious as several prior shed discussions, including those at the Village Board of Trustees. Peehl repeatedly interrupted ZBA members as they spoke “and would not stop,” said ZBA member Marie Early, March 19. Eventually, she added, as the disruption continued, “I did, in fact, call the police.” Consequently, Early went on, things settled down and Peehl made a few non-heated remarks during the public-comment period of the meeting.
The latest stage of the conflict began on Sept. 5, 2012, when Cold Spring Building Inspector William C. Bujarski issued the now-revoked certificate of occupancy — a form of approval for usage. (The Henderson-Sigler shed lacks electricity, running water and insulation and is designed for storage of gardening tools and related items as well as sports equipment, not for residential occupancy.) Shed history, though, dates back to 2008, when one of Bujarski’s predecessors granted permission to build the structure, intended as a replacement for the old shed.
According to the ZBA, the old, original shed had a footprint approximately 10 feet wide and 25 feet long, and was single-storied, with a roof about 11 feet high, while the new Henderson-Sigler model is 15 feet high and built atop the previous shed’s pre-existing foundation. Erected before the village had a zoning code, the original shed was, before its demise, considered a legitimate but “non-conforming” building, since it did not meet the setback spacing the code demanded.
The ZBA decision observed that the record includes “conflicting evidence presented as to whether the replacement shed … over-hung, or was larger than the shed’s original foundation footprint.” However, it also stated, “the replacement shed has been expanded in violation of Village Code [Section] 134-19(H) which [specifies] that a non-conforming building can be repaired or replaced provided that such action does not increase the degree of, or create any new, non-conformity” under village regulations.
The ZBA added that testimony at a ZBA hearing (which continued for more than a year at odd intervals) and documentary evidence established “that a portion of the replacement shed, i.e., a build-out of the shed’s front portion, extends 11 inches in a westerly direction from the shed’s original foundation footprint.” The ZBA declared that “the ‘front bump-out’ portion of the replacement shed violates village code because it creates a new area of non-conformity in the side-yard setbacks.”
Early said March 12 “this was the only reason for our finding” and revocation of the occupancy certificate. “The bump-out does not adhere to the side-yard setbacks.” She said that at the meeting, the board informed Henderson that either “he could tear the shed down or make it legal.”
She explained that to make the latter option possible, one approach would be for Henderson and Sigler to seek a new building permit solely for the “bump-out,” a request that almost certainly would be denied by Bujarski, who would advise the couple to go back to the ZBA for a variance, or exemption from the code.
Contacted March 19, Bujarski said, “I have no comment for or against the decision. The ZBA is handling the options available to [the] owners towards compliance.” Going forward, he noted, “I do not have any involvement until the shed is compliant.”
I appreciate the opportunity to comment – both on the article and on the case.
The author, Liz Schevtchuk Armstrong, was not present at the meeting so we assume that she gleaned information primarily from the board’s written resolution and from ZBA member, Marie Early, who is quoted.
We were not contacted for an interview, though the other party to the proceedings — the building inspector — was. We can only imagine this oversight came about as the result of the continued misconception that our neighbors were the party we were pitted against. For the record, this has never been the case, though we have repeatedly had to bring this to ZBA members’ and reporters’ attentions.
The New York Department of State guidelines and our appeal make clear that the two parties are the building inspector, representing the municipality, and the applicants making the appeal of the building inspector’s action — in this case the issuance of a Certificate of Occupancy.
The article combines reporting on the decision, with reporting on the meeting where the resolution was discussed and read. I was said to have made “a few non-heated remarks” during the public comment section of the meeting, and was said to have interrupted the meeting earlier on to make (inferred “heated”) remarks. Again, I was never asked for comment, though Ms. Early was quoted as having called the police.
Before describing what my (supposedly heated) remarks were and why I said them, I’d like to clarify something about the decision, which involves the statement I made at the end of the meeting. As per the article, the ZBA maintains that, with the exception of side set-back violations, we failed to meet the burden of proof with regard to all of our other allegations. We find it odd that ZBA members would believe that the burden of proof rested solely on us, when the Department of State guidelines to ZBA applicants states otherwise:
“At the hearing, the ZBA will offer the applicant and/or the applicant’s representative the opportunity to present a case for relief. The applicant may personally testify, call witnesses, or submit written evidence, including drawings and graphics. Because an appeal is an adversarial proceeding, the ZBA will offer the municipality an equal opportunity to present its side of the case (the side which supports the enforcement officer’s decision). Each side will be given an opportunity to question the other, or the other’s witnesses. In addition, ZBA members may ask questions.”
In our proceedings, the municipality never presented a case. Though the building inspector was present for the first hearing date, ZBA members asked him a few questions and he angrily left the building. On the second date, Bill Bujarski again answered questions from ZBA members – this time concerning a report he’d made following a very particular inspection of new versus old concrete – a task assigned to him by ZBA Chairman Donald MacDonald (at Paul Henderson’s suggestion). Bujarski recommended that what was needed was a 2nd recent professional survey, not his inspection. After a couple more frustrated answers, he again stormed out – this time stating, “I quit!”
We were never told that he had resumed his position. We were never allowed to ask questions of him directly. He never again entered the room.
Rather, the village attorney told us that we could submit written questions to the building inspector but only on the topic of the above-mentioned report. We objected as the report had been generated a full year after the C of O had been issued — months into our hearing — and the building inspector, himself, had already stated that it wasn’t sufficient. But he attorney insisted that there would be no other path open for us.
We were never allowed to ask the building inspector or anyone else about anything concerning the actions or documents that the building inspector had in his possession in the lead up to his issuance of the C of O.
These irregularities, in defiance of DOS guidelines, are mentioned in either the article or by the ZBA when it is stated that we were not able to prove our case.
But this is just the tip of the iceberg. There were scores of other irregularities and violations of guidelines and code that do not appear in either the article or as part of the ZBA’s final resolution. Suffice it to say, we have objected to many, in writing and in person, and none have ever made the light of day.
Another issue that I welcome the opportunity to comment on has to do with contested unproven matters presented as fact, including some which have been flatly contradicted such as: The ZBA’s assertion that the original shed’s dimensions were approximately 25′ x 10′. This directly contradicts the only legal document concerning the size of the shed to accompany the applicant’s application. That survey shows the shed to be much smaller – roughly 18’ x 10’.
The ZBA’s measurements also directly contradict documents and measurements that the tax assessor’s office has used for these long years to assess our neighbor’s taxes (documents which hold that the shed was approximately 17′ x 10′). On top of this, we also offered visual evidence of the shed’s original dimensions as much less than 25′. So did Fred Norgaard. But the ZBA, and now the article, maintain that the original shed was 25′ long, with no mention of any arguments.
Another example of contested and unproven statements posing as facts, appears in a parenthetical within the article, attributed to no one: “(The Henderson-Sigler shed lacks electricity, running water and insulation and is designed for storage of gardening tools and related items as well as sports equipment, not for residential occupancy.)” There are three points within this statement that are assumed.
First, the building inspector has written that the building was not FULLY insulated, because he does not know. He has never performed an inspection for insulation, even though an insulation inspection was scheduled on the original building permit.
Second, while Paul Henderson, the shed owner, has argued there is currently no electricity in the structure, there was a great deal of digging going on between the house and the shed (which we, at the time, thought to be for an irrigation system for the garden!). This trench has since been covered over and the materials used were included on invoices submitted by Paul Henderson as part of the concrete foundational work for the shed (foundational work, which was not permitted by the original building permit.) In fact, no electrical inspection has ever been performed — even though Bill Bujarski added electrical inspections to the building permit renewals himself.
Finally, as per the idea that the structure was designed for storage, we brought to ZBA members’ attentions the fact that the 8′ x 10′ bank of windows employed in the design was hardly a regular feature of a shed to be used for storage of garden tools (or sports equipment). We argued that the addition of those windows, as well as the 7 (not 4) plus feet of height change, likely begged the question of a USE change — if not now, then later (remember, a variance follows the land – not the people). These are just three of the many issues that the ZBA chose to circumvent — preferring rather to put the burden of proof on us. Now they appear in print as facts.
As far as my interruptions are concerned, when it became clear that board members intended to make a decision during the workshop and they were reading aloud from the draft resolution, making minor changes along the way, I asked for a copy (as is my right, and yours) to read along with them. Board members ignored me, and my request. I asked again and was told I couldn’t have a copy, but one would later be sent to me.
As this very issue was part of our original Article 78 against this specific board, I stated clearly that, according to the Open Meetings Law, the board was to have posted the resolution before the meeting and at the very least was to make copies available during the meeting for those in attendance.
I spoke clearly and without passion, and I repeated myself so that all could hear. I also said that the board was conducting the meeting unlawfully by not following the Open Meetings Law. I said, I know you can hear me, and asked, do you know this? Finally, one board member (Alison Anthoine) asked the village attorney if what I was saying held any truth. The attorney encouraged board members to continue and to ignore me. It was then suggested that they could call the police to prevent me from speaking.
I offered to show the attorney the article of law that I was referring to. “No, you stay away from me,” was her answer. I then said that she was advising the board against the law, to which she replied, “So, sue me!” with a toss of her hair.
This flippant advice from the village attorney to a resident and tax-payer concerning a matter that could be legally contested and indeed has been legally contested -– recently – is disconcerting to say the least. Is it too much to hope that our village attorney can learn from past mistakes and counsel our village against future lawsuits?
Here is the law, for anyone’s information. It’s designed to allow citizens greater opportunity to observe the performance of their public servants in order to retain control, which is essential to a democratic society:
Here is the particular passage I referred to during the meeting:
“(e) Agency records available to the public pursuant to article six of this chapter, as well as any proposed resolution, law, rule, regulation, policy or any amendment thereto, that is scheduled to be the subject of discussion by a public body during an open meeting shall be made available, upon request therefor, to the extent practicable as determined by the agency or the department, prior to or at the meeting during which the records will be discussed.”
I’d like to thank the officer who handled the situation as he did so professionally. He asked me if I intended to further disrupt the meeting. I assured him, no — that I had only interrupted the meeting to point out that it was being conducted illegally and that I was certain the board members had now heard my point. He mentioned not wanting to take sides and politely ushered me back into the meeting.
Again, I appreciate the opportunity to comment and I recommend that in future articles, all appropriate parties be interviewed.