The mercy of the arbitrators

Posted 2/22/22

TUSTEN, NY  — Over 40 onlookers were in the audience for the February 14 meeting of Tusten’s Zoning Board of Appeals (ZBA).

At stake were two contentious issues. The board settled …

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The mercy of the arbitrators


TUSTEN, NY  — Over 40 onlookers were in the audience for the February 14 meeting of Tusten’s Zoning Board of Appeals (ZBA).

At stake were two contentious issues. The board settled an issue involving a use-variance application for a commercial art shop project on the residential Flats, following months of deliberations. They denied the application for a use variance, and then opened the door for months of deliberations to come on a separate complaint between neighboring businesses.

The art shop

The first issue that came before the board involved an application for a use variance.

A number of local residents had sought to purchase, rehabilitate, and modernize a building used as a workshop by longtime area resident Art Peck as a workshop, turning it into a collaborative art shop. The project required a use variance from the ZBA because the Pecks’ building was located in The Flats, a residential area where the zoning did not allow for commercial use.

The ZBA had discussed the issue at a number of meetings previously—on October 11 and 25, November 8, January 10 and January 24—and had determined to come to a consensus at the January 24 workshop meeting before deciding the issue on February 14.

Discussion at the workshop meeting lasted well over an hour, with board members deliberating on whether the project met the criteria necessary for the granting of a use variance. The granting of a use variance must meet four criteria established by New York State caselaw.

The first criterion requires that, if someone could buy the property under consideration, develop it and sell it with a reasonable return on their investment and not break any zoning laws, then that property didn’t need a use variance and couldn’t be granted one; in technical terms, the applicant needed to prove with “competent financial information” that they could not attain a reasonable rate of return on the property without a use variance. The second criterion speaks to whether there are unique attributes of the property that would contribute to the need for a use variance. The third asks whether the use variance will preserve the essential character of the neighborhood, with the fourth one questioning whether the hardship and the need for a use variance is self-created.

The board’s consensus at the workshop meeting held that the applicants did not meet three out of the four criteria, with all four being essential to grant the use variance. The applicants present at the workshop told the board they had done everything in their power to meet the financial information criterion, including calling every contractor they knew and acquiring multiple sets of estimates for what it would cost to develop the property while adhering to zoning. The board mentioned a few places where they had fallen short—they had not, for instance, gotten an independent appraisal of the building. But even apart from any individual point, the consensus of the board held that the evidence simply wasn’t there to meet the standards required for the granting of a use variance.

The board directed town attorney Ken Kline to draft a resolution summarizing that consensus for the board’s February 14 meeting, declining the use-variance application.

The meeting opened with a vote on that resolution, with the board voting 4-1 in its favor. For the majority of the 40-plus people in the audience—who had not attended the earlier workshop meeting—the result of the vote was unclear. The board voted without discussion of what a yes vote meant for the project’s future, and only read the resolution in the aftermath of following the vote.

During the meeting’s public comment period, applicant Kathryn Andrews expressed frustration with the board for dismissing the evidence she and other applicants had presented in support of the project. “We aren’t at the mercy of the proof,” she said, claiming a lack of evidence from the board for the reasons behind that dismissal. “We are at the mercy of the arbitrators.”

Andrews ended her statement with a call for the community to move forward and to keep the neighborhood’s best interests at heart.  

Bar Veloce

The other piece of business before the board was there for the first time: a complaint by Brendan and Kathleen Weiden, owners of the Narrowsburg Union, against neighboring business Bar Veloce.

Bar Veloce, a cheese-and-wine business with several locations in the New York metro area, partnered in 2020 with local car-dealership and auto shop Narrowsburg Motors, which is run by Kathleen Johnson and her husband and Tusten supervisor Ben Johnson. It planned to move the auto shop’s operations into the basement and to open a cafe and wine bar on the ground floor.

That plan took shape throughout 2021, with work completed on the first-floor bar area. Throughout that year, the work done expanded to include a second-story deck and seating area—an expansion not included in the building permit application submitted to the code enforcement officer.

Bar Veloce received its certificate of occupancy on October 5, 2021, approving the first floor work that had been done. In a letter describing the decision, however, building inspector and code enforcement officer Jim Crowley specified that the certificate did not cover the rooftop deck; that deck would require a revised special permit from the planning board, as well as its own building permit and certificate of occupancy.

The Weidens came before the ZBA at its February 14 meeting to challenge the first-floor certificate of occupancy.

The challenge was, at first, thrown out by the board, on the grounds that a challenge needed to be filed within 60 days of the certificate being issued. The Weidens’ lawyer maintained that the 60-day window began not when the certificate was granted but when the challengers found out about its issuance, and that the Weidens had only received the certificate on December 16. The board was sufficiently convinced that it decided to hear the challenge.

The issue, as the Weidens told it, was one of parking. Based solely on the space taken up by Narrowsburg Motors and the 1,933 square feet allowed for in the certificate of occupancy, the building needed a total of 33 parking spaces. At present, it had 12, without the space nearby to add more. Historically, Narrowsburg Motors had used the parking lot across the street at St. Francis Xavier Church.

The lack of parking was a particular problem for the Narrowsburg Union, said the Weidens, as customers without sufficient access to parking for Bar Veloce would likely find their way to the Narrowsburg Union’s adjacent lots.

The Weidens alleged as well that the town’s zoning laws had been selectively applied with respect to Bar Veloce; a packet of information they provided with their complaint cited several instances where Bar Veloce’s non-compliance had been overlooked by the planning board.

“It’s hurting us,” said Brendan Weiden, speaking in the meeting’s public comment period. “It’s taking our parking.” Zoning was in place to keep neighbors from fighting, he said; as things stood, “[the town] got punched in the face and you don’t even know it.”

The board agreed to hear submissions from the other side of the dispute—from Crowley and from Bar Veloce—at the next ZBA meeting, and to hold a public hearing in April.

art shop, Tusten, Zoning Board of Appeals, Bar Veloce, certificate of occupancy


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