VILLAGE OF DERING HARBOR
BOARD OF TRUSTEES MEETING
2 December, 2017
Public Hearing, Fences, 10 A.M.
Prepared by Village Clerk Elizabeth M. Gilpin
In Attendance: Mayor John T. Colby; Trustees: Betsy Morgan, Patrick Parcells and Karen Kelsey.
Village Attorney: Wayne D. Bruyn.
Village Residents: Mickey Kostow, Rob Ferris, Alfredo Paredes, Ken Walker, Annbeth Eschbach and Betsy Colby.
Also Present: Julia Brennan of The Shelter Island Reporter and Daniel P. Barker representing Timothy Hogue and Marian Brownlie.
I. Mayor Colby opened the Trustees meeting at 9:09 a.m.
Jeanette Flynn’s resignation letter was read.
Motion to accept resignation by: Betsy Morgan
Motion seconded by: Karen Kelsey
Motion carried unanimously.
II. Review and Approval of the Minutes of the 4 November 2017 meeting
Mayor Colby explained that minutes had not been prepared by Jeanette before her leaving the Village. It is thought that minutes were taken on the Town of Shelter Island recording device.
Dorothy Ogar, Shelter Island Town Clerk is aware and will alert the Village should recording be found. If not found notes from board members in attendance will be compiled for review.
III. Julia Brennan from the Shelter Island Reporter had not arrived
Motion to move into Executive Session to give Julia time to arrive by: Betsy Morgan
Motion Seconded by: Karen Kelsey
Motion carried unanimously.
IV. Ways and Means (Financial Report and Review of Invoices)
A. November disbursement report: Mayor Colby noted Haps two invoices were for work done in response to the DEC for work performed over and above his normal duties and 8 hour work week.
Motion to approve the November 2017 bills with the exception of the invoice from Hamburger Maxon and Harry Bowditch two invoices by Patrick Parcells.
Motion Seconded by: Betsy Morgan
Motion carried unanimously.
B. Operating Statements, Period Ending 30 November 2017:
Mayor Colby noted that the Change in Fund Balance to date in 2017 is 43.6% compared to 43.3% for 2016 for the same time period. CHIPS reimbursement will be filed in the Treasurer’s office in January providing a reimbursement of funds incurred for road maintenance. Monies reimbursed through CHIPS will appear as a line item in the income section rather than expense section of the income statement once received and recorded.
C. Recap of discussion of the proposed well: Currently we have been approved to receive a grant of $475,000 for the construction of a new 54’ above ground water tank which would replace the existing 100’water tank. DEC approval has been granted for this proposal. A second proposal has been put forth to install a hydro-pneumonic underground tank at a cost of $150,000. Funding would not be available for this proposal and the cost of borrowing money would be approximately 150 basis points higher. The second proposal will not provide a proper flow for the use of fire hydrants and therefore will be a concern for homeowners insurance as it will affect their fire rating, the fire portion of the policy then expected to increase by approximately 6%. If the village chooses the second option, the funding at a favorable rate goes away completely as does the permit from the DEC and a new DEC permit application would have to be filed. Life expectancy for the tanks is 100 years for option 1 and 50 years for option 2. Patrick will reach out to Holz?????? To determine the consequences associated with switching to option 2, draft an email to the residences summarizing the options and put forth a vote at the February meeting. Currently there are no leaks coming from the main system. Individual meters would detect leaks from individual properties. Problems with existing wells, one is too far a distance from the pump house and the other was dug too deeply.
D. Water Quality Improvement Committee Application: An application for the water improvement project for a backup well has been submitted to Mark Mobius Chair of the Water Quality Improvement Committee of the Town of Shelter Island. The cost of the well would be $33,500, $11,000 of which is available through the Community Preservation Fund = $22,500, roughly $623 per resident. Suggestion that water quality be posted to the Village Website as well as emailed regularly to residents.
***Motion to adjourn Public Meeting***
Motion to adjourn public meeting by: Betsy Morgan
Motion seconded by: Patrick Parcells
Motion carried unanimously
***Motion to open Public Hearing on Local Law 2017, Fences***
Motion to open Public Hearing Public Hearing on Local Law 2017, fences by: Patrick Parcells
Motion seconded by: Betsy Colby
Motion carried unanimously
(1) Daniel P. Barker, attorney for Timothy Hogue and Marion Brownlie was introduced.
(2) Letters from Steph & Eric Deutsch (ARB Member),Mickey Kostow (ARB Chair), Susannah & Brandon Rose (ARB Member), Clora Kelly & Helge Skibeli, Daniel Barker (Hogue/Brownlie counsel), Marian Brownlie, Linda Adams, Kirk Ressler (Planning Board Chair), Tim Hogue (ZBA Chair), Bridg Hunt (ARB Member, ZBA Member) were read aloud.
(3) Discussion: Wayne will draft language that addresses regulation of a living fence that is setback of a certain number of feet from the property line and of a specific height to be voted on by the board at the February meeting or at a special meeting called for by the board. Any variance from the regulation of the new resolution would be referred to the Architectural Review Board for variance approval. Wayne noted that zoning codes do not legislate protecting public views.
***Motion to adjourn or close Public Hearing on Local Law 2017, Fences***
Motion to adjourn the Public Hearing on Local Law 2017, Fences by: Patrick Parcells.
Motion seconded by: Betsy Morgan
Motion carried unanimously.
VII. Report from MS4 committee and annual DEC filing update.
(1) Need a volunteer to serve on the committee. Suggestion to ask Mark Mobius to serve.
VIII. Report from Village Greens and Improvement committee.
(1) Shrub removed from Shore Road corner as well as arborvitae in front of Village Hall.
IX. Planning Board Review
(1) Pending application for curb cut, parking, trailhead signage, hunting signage on the east side of Manhanset Road accessing Mildred Flower Hird Preserve. (Spring meeting.) Request for more Yellow No Hunting signs be posted by Beau Payne. Application from Gordon Gooding has not yet been received.
X. Zoning Board of Appeals (ZBA) Review
XI. Architectural Review Board (ARB) Review Application: 21 Shore Road Hedge Application and referral to ARB, 14 October 2017. (Adjourned, 14 October 2017)
Motion to grant license for Holly Plantings Only (see attached resolution) [At foot of this document]
XII. Community Reports
(1) Shore Road Naming Committee, Jim Goldman, chair.
(2) Resident Comments.
XIII. New Business (Motion to Open New Business)
Motion to adopt by:____________
Motion seconded by:_______________
In Favor: ___________________________
(1) Executive Session, litigation matters.
(2) Employee matters. Harry Bowditch invoices are approved for payment.
(3) Review proposal from Arthur Bloom, fire marshal.
(4) Shelter Island Reporter FOIA Request.
Lisa will coordinate a meeting with Kevin Lechmanski, Bridg Hunt and Wayne Bruyn to review our current email system and to set up individual email addresses for Village employees and Trustees and to discuss how email is to be used.
XIV. Date for Next Meeting – Saturday, 3 February 2018 at 10:00 a.m. (No meeting in January.
XV. Motion to Adjourn: Meeting adjourned at 12;21 p.m.
Motion to Adjourn by: Patrick Parcells
Motion seconded by: Karen Kelsey
Motion carried unanimously
RESOLUTION APPROVING LIVING FENCE (HEDGE) ON 21 SHORE ROAD
WHEREAS, the Village Board of the Village of Dering Harbor received a written request at the end of September, 2017, to approve an application for a “living fence” pursuant to §4-420 of the Zoning Law on the property of Brad Goldfarb and Alfredo Paredes, situate at 21 Shore Road, Inc. Village of Dering Harbor, Town of Shelter Island, County of Suffolk, State of New York, and designated as SCTM# 0701-001.00-01.00- 002.000 & 003.000; and
WHEREAS, said application seeks approval of the planting of two different “living fences”, to wit: (a) the planting of 18-25 American holly bushes, approximately 8-10 feet in height, along the northerly property line, which were planted approximately 4 years ago; and (b) the planting of a privet hedge, 4 feet in height, along the southerly street frontage along Shore Road and extending northerly along both sides of a private right-of-way, as depicted on the survey, planting plans and maps submitted with the application; and
WHEREAS, the applicants previously made a request to the Village Board on April 10, 2014, to install an irrigation well and an irrigation system and to install the aforementioned “living fences”, but no action was taken on the portion of the application related to the living fences; and
WHEREAS, litigation ensued between the applicants and the Village of Dering Harbor related to the Village’s possible claim of the ownership of a strip of land along the frontage of the subject premises where portions of the proposed privet hedge are now to be installed, thereby placing the living fence application on hold; and
WHEREAS, the applicants and the Village of Dering Harbor have settled and agreed that the Village has no claim of ownership to the applicants’ property and the application to approve the living fences was renewed; and
WHEREAS, the application was noticed as part of the Village Board’s meeting agenda and reviewed by the Village Board at their meeting of October 13, 2017, which review included a presentation from the applicants and the receipt of testimony and written comments from neighbors and the public; and
WHEREAS, the review of the application was adjourned until November 2, 2017, and then further adjourned until December 2, 2017; and
WHEREAS, the Village Board has reviewed the applicants’ request and in consideration of the standards for granting approval for a “living fence” set forth in §4- 420 of the Zoning Law, makes the following findings:
(1) Section 4-420 states that “fences should neither be permitted nor prohibited generally and that because of varying conditions adequate guidelines cannot be established for delegated administrative action. Accordingly, action on applications for permission to erect, plant or grow fences shall be legislative by nature.” This section requires the Village Board “determine whether the fence is appropriate for the property in question.”
(2) The Village Board acknowledges that the language in §4-420 states that Village Board’s action on applications to grant or deny a living fence shall be “legislative in nature.” However, nothing in this section (or any other section of the Zoning Law), indicates that the processing and review of a landowners’ application is in fact a legislative act. Legislation is the act of adopting or amending the law. The review of applications regulated by the law and the grant or denial of a permit does not require legislation. In other words, a legislative amendment to the Zoning Law is not required each time an application is granted or denied. The Village Board actions under the Zoning Law to grant or deny applications must be reviewed in the Village’s administrative capacity. The reference in §4-420 to the term “legislative by nature” is made with respect to the form of the discretion the Village Board may take in acting on an application. Legislative discretion is customarily the power to make an official decision using reason and judgment from among acceptable alternatives. The decision must have a rational basis.
(3) The past practice of the Village Board under §4-420 has been to assure that the proposed living fence does not unreasonably interfere with any public street, public property or public interest. The Village Board would thereafter refer the matter to the Architectural review Board, who would determine whether the location, size and materials of the proposed living fence is appropriate for the property.
(4) It is noted that the authority to regulate fences is derived from the zoning powers of the Village, as enabled under Article 7 of the New York State Village Law, with the purposes of promoting the health, safety, morals and the general welfare of community, subject to applicable statutory and constitutional limitations. The adoption of zoning requirements must be uniform within a district and be accompanied by adequate standards to guide and limit the discretion of the reviewing board. In this case, a previous Village Board chose to regulate fences under the Zoning Law and retained the power to review fences on a case-by-case basis. The language of §4-420 recognizes that varying conditions do not allow the delegation of guidelines and requires the Village Board determine “whether the fence is appropriate for the property in question.” Thus, absent any other guidelines, the Village Board must determine whether a living fence is appropriate for the property in the context of promoting the health, safety, morals and the general welfare of community. In particular, this Board must determine whether the hollies are appropriate for the property, balancing the protection of public safety and public scenic views versus the privacy or security concerns of the owner.
(5) Initially, it must be noted that the applicants’ ownership of the strip of land along the frontage of their property may still be in question, which impacts the portion of the application related to the proposed privet hedge. This proposed privet hedge is located within the disputed area and this Board would not have authority to grant the permit unless and until the applicants’ title is clarified. Therefore, further consideration of the approval of the portion of the request involving the privet hedge will be held in abeyance pending further clarification of the title from the applicants. The applicants have consented to an adjournment of any review of that portion of their request.
(6) As shown on the survey submitted with the application, the applicants’ property is a rectangular shaped parcel consisting of two tax lots totaling 26,228 square feet. The property fronts on Shore Road on the south, Dering Harbor on the west and private residential properties on the north and east. The property has an approximate depth of 106 feet from Shore Road on the south to the northerly property line. The property is bifurcated by a stone driveway within an approximately 18 foot wide easement as per Liber 1054, page 269, which serves the residence to the north. The easterly portion is improved with a two-story frame dwelling with covered porches and a frame garage. The dwelling is located approximately 43 feet from Shore Road and 25 feet from the northerly property line. A separate stone driveway with access directly to Shore Road serves the garage. The westerly portion is improved with a brick walk and patio and access to the water. The planting of the American hollies is along the northerly or rear property line as depicted on the survey, planting plans and maps submitted with the request and photographs in the record. The planting of the hollies occurred approximately 4 years ago and have been inspected and viewed by Board members. Prior to the planting of the hollies the border was covered by existing trees and bushes, including an approximately 20 foot cedar tree and 3-4 medium sized maple trees. The existing trees were left and the hollies were interspersed and planted along the border along with other smaller shrubs. The trunks and roots of the existing trees are in closer proximity to the brick wall on the adjacent property than the hollies. The hollies cover an approximately 110 foot length from a point approximately 8-10 feet north of the driveway crossing the property to a point approximately 20 feet west of the northeasterly corner of the property and the garage. The planting of the hollies are along a rear property line between two private properties and are not along a public street frontage.
(7) The subject property shares a boundary line with the property of Dering Point Associates, LLC to the west designated as SCTM# 0701-001.00-01.00-004.000. Ms. Marion Brownlie has advised that she is a representative of Dering Point Associates, LLC and maintains a residence on the property. The Dering Point property is similar in shape to the applicants’ property and also consists of two tax lots totaling approximately 25,000 square feet. The Dering Point property also fronts on Dering Harbor and borders one large residential property on the north and east. The Dering Point property has no street frontage and gains access via a stone driveway within an approximately 18 foot wide easement crossing the applicants’ property as per Liber 1054, page 269. The Dering Point property is improved with a two-story dwelling surrounded by brick patios and a swimming pool. The dwelling is setback approximately 30 feet from common boundary line. The area between the dwelling and the common boundary line is improved with brick walk, stone driveway and parking area, which extends the length of the easterly portion of the common boundary line. The Dering Harbor property contains an approximately three foot high brick wall along the common boundary line. There are no plantings or other screening on the Dering Point along the common boundary line. The planting of the hollies on the subject property is along this common boundary line and are not within the 18 foot wide access easement.
(8) The subject property shares a boundary line with the property of Timothy Hogue to the east designated as SCTM# 0701-001.00-01.00-005.000. The Hogue property is a large 3.8 acre “L-shaped” parcel wrapping around the subject property and the Dering Point property with frontage on Dering Harbor on the west, Greenport Harbor on the north, private residential property on the east and Shore Road on the south. Mr. Hogue’s property is improved with a large two-story residence on the property and several accessory structures, with the residence located to the north of the Dering Point property. The Hogue property shares an approximately 106 foot boundary, which is improved with an approximately three foot high brick wall along the entire length. The Hogue property also maintains a garage adjacent to the garage on the subject premises. The planting of the hollies do not directly border the Hogue property and the northern terminus of the plantings is approximately 20 feet from the common boundary in the vicinity of the garage on the Hogue property.
(9) Mrs. Brownlie and an attorney representing both Mrs. Brownlie and Mr. Hogue appeared before the Village Board and provided verbal and written comments on both living fence requests. The Board is also aware of the written comments previously submitted by Mrs. Brownlie. The comments on the privet hedge proposal are acknowledged and will be considered when that portion of the application proceeds. With respect to the hollies they claim that they should not be approved because the approval requires notice and adoption of legislation to accomplish same; possible sight distance issues with cars utilizing the Dering Point driveway; that the roots of the hollies may undermine the brick wall erected on the Dering Point boundary line; the hollies will block the sunlight to her property and a possible title issue. The Board asked for clarification on their claims particularly as to the possible title issue. The Board notes that no further information was offered by the neighbors, particularly as to the alleged title issue. It was also noted that the comments provided by neighbors include no empirical or scientific evidence, nor was there any expert testimony offered in support their comments. Lastly, no comments were offered with respect to any impact of the planting of the hollies to the property of Mr. Hogue.
(10) The applicants advised that the planting of the hollies was necessary to provide year-round screening between the two residences located approximately 55 feet apart; to provide mutual screening between their dwelling and the rear patio/activity area and swimming pool on the Dering Point property and to provide screening of the driveway and parking area located on the Dering Point property within five feet of the common boundary line.
(11) Initially, based upon the standards applied by the Village Board in previous hedge applications, this Board finds that the hollies planted along the rear property line are not in close proximity to or otherwise interfere with any public street or public property. No other public interest with respect to the subject private properties has been identified or documented.
(12) With respect to the language of §4-420, in determining whether the hollies are appropriate for the property, the Board finds that the planting of the hollies do not present any public health issue. The alleged blocking out of sunlight along the common boundary does not arise to a significant public health issue particularly since any shadowing would occur over non-habitable space on the approximately 30 feet southern portion of the Dering Point property immediately adjacent to the subject property, which is improved with open, impervious structures, including the brick wall, stone driveway, parking area and brick walkways and patios.
(13) With respect to determining whether the hollies are appropriate for the property, the Board finds that the planting of the hollies do not present any public safety issue. The hollies are planted along the rear lot line between two private properties. The hollies are not planted along Shore Road or present any safety issue with any other public street or public property. Ms. Brownlie’s claims that the sight distance along her private driveway may be more impaired but she did not express any public safety issue. Rather, Mrs. Brownlie has acknowledged the configuration of her driveway and the existing conditions, including her brick wall, already impacted sight distance. Mrs. Brownlie alleges that lost visitors to the Village may enter her driveway and cause safety issues because of their lack of knowledge of the conditions. Mrs. Brownlie made such claims when the hollies were planted four years ago and no scientific evidence or expert testimony has been offered in support of such claims. The hollies are located outside of the access easement and the parties to the private easement and driveway may take actions to mitigate sight distance issues, including modifications to the driveway; installation of a gate, signs and mirrors.
(14) With respect to determining whether the hollies are appropriate for the property, the Board finds that the planting of the hollies do not present any matters impacting the general welfare of the community. The Board finds that living fences and hedges are commonplace in the Village of Dering Harbor with such living fences and hedges taking a variety sizes, shapes and materials, including evergreen and holly hedges. The Board notes, for example, that portions of the Hogue property are bordered by hedges, including an evergreen hedge along the easterly border adjacent to the dwelling on the adjacent property. The Board also notes that several applications for living fences and hedges have been approved by the Village board in the past. The hollies on the subject property are planted along the rear lot line between two private properties and do not interfere with any publically acknowledged views or viewshed. Mrs. Brownlie’s claims that the general welfare of the community is impacted due to holly leaves blowing into her yard is specious. Similarly, Mrs. Brownlie’s claims that the roots of the hollies may impact the structural integrity of the brick wall on the Dering Point property does not impact the general welfare of the community. Mrs. Brownlie made such claims when the hollies were planted four years ago and no scientific evidence or expert testimony has been offered in support of such claims. Moreover, the fact that the existing cedar and maple trees have been growing immediately adjacent to the wall would seemingly impact such claims.
(15) In making this determination, this Board has been mindful that absent specific guidelines and standards that may be applied equally and equitably to all landowners, the Board’s discretion to impose conditions or deny an application is limited and that it may not rely upon generalized objections to do so.
NOW, THEREFORE, BE IT RESOLVED, that the Village Board of the Village of Dering Harbor hereby approves the application of Brad Goldfarb and Alfredo Paredes, for a “living fence” pursuant to §4-420 of the Zoning Law, to plant and maintain a row of American holly bushes, approximately 8-10 feet in height, along the northerly property line of property situate at 21 Shore Road, Inc. Village of Dering Harbor, Town of Shelter Island, County of Suffolk, State of New York, and designated as SCTM# 0701-001.00- 01.00-002.000 & 003.000, as depicted on the survey, planting plans and maps submitted with the application and as they shall now exist; and
BE, IT FURTHER RESOLVED, the Village Board hereby refers this application to the Architectural Review Board for its review and approval; and
BE, IT FURTHER RESOLVED, that the portion of the application seeking approval of the 4 foot privet hedge along Shore Road will be held in abeyance pending further clarification of the title from the applicants.