Parcel in both Philipstown and Nelsonville; which zoning applies?
By Liz Schevtchuk Armstrong
Plans to develop a parcel that straddles Nelsonville and Philipstown have provoked opposition from neighbors, questions about variances, and disputes over the meaning of the word taken.
The case, pending before the Philipstown Zoning Board of Appeals, involves a request by Susan Green for variances to build a four-bedroom, 3,300-square-foot house on a half-acre lot off Douglas Lane. The private road runs south from Moffatt Road, on a hillside above Route 9D.
The spot where Green wants to build the house lies in Philipstown’s rural-conservation district, which requires at least 10 acres to build a home. The remainder of the property, which would be about an acre of lawn, is in Nelsonville.
“It’s a little complicated,” said Robert Dee, who chairs the ZBA, at a Feb. 12 public hearing on the variance requests.
Before the zoning changed, Philipstown required house lots to be at least 1 acre. Initially, Green’s half-acre was part of a 1.22-acre parcel. In 1966, to obtain access to New York City’s aqueduct, which the Cold Spring water system uses in emergencies, the Village of Cold Spring bought a 0.67-acre section of the 1.22-acre property. Later, Green bought the 0.55-acre remnant, along with the adjoining 0.9 acre in Nelsonville.
Daniel Richmond, her attorney, argued at the hearing that because the division of the 1.22-acre tract allowed Cold Spring to acquire the 0.67-acre tract for aqueduct access, her 0.55-acre parcel was created by land being “taken” by a municipality for a public purpose. Therefore, he said, the lot where Green would like to build a home is a pre-existing, legal, non-conforming lot. If the zoning board agrees, Green’s 0.55-acre lot would require fewer variances.
However, Douglas Martino, an attorney for Nelsonville neighbors of the parcel, the Meyer family, contended that the lot is a pre-existing, illegal, non-conforming lot. Even under the old, 1-acre requirement, he argued, a 0.55-acre house lot violated the law. He also disputed that Cold Spring’s purchase of the 0.67 acre for aqueduct access constituted a legal “taking” akin to property seized by eminent domain.
Richmond responded that even if the 0.55 acre needs several variances, the ZBA should accommodate the house because it will “seamlessly” blend into its surroundings. “Zoning boards are supposed to be governed by the totality of the circumstances,” he said.
An architect and developer, Green plans to build the home and sell the 1.4-acre property. But, she said, “I don’t think of myself as a ‘spec’ builder.” Instead, she tries “to make a house that fits in. I love Philipstown. I love the rural quality” and designed the house to resemble a barn, she said.
The neighbors were not persuaded.
“It’s the applicant’s approach that needs to be modified,” not the zoning, said Josh Meyer. “Not every property is buildable, including this one.”
He claimed Green had first intended to construct the house in Nelsonville but found the village unreceptive and so relocated it to the Philipstown side.
Nelsonville requires 2-acre house lots in that area, said Nelsonville Mayor Bill O’Neill, who attended the hearing and who lives on Moffatt Road. He raised concerns about drainage from impervious surfaces on a built-up lot. Already, rain water cascades into his yard from Douglas Lane, he said, and flooding from an inundated house septic field could bring “contaminated run-off.” He advised the ZBA “to hold the line” and deny the application.
Randy Florke, a real estate broker who lives along Douglas Lane, also criticized the plans. “I’m pro-building, generally,” he said, adding that he had considered buying what became Green’s property but concluded it was undevelopable. Like O’Neill, he mentioned run-off problems, observing that the night of the hearing, the area around the Douglas Lane-Moffatt Road intersection was “a frozen pond.”
The ZBA closed the hearing but will discuss the application further in March.
