HomeMy WebLinkAbout2013-04-02 - Zoning Board of Appeals Meeting Minutes VILLAGE OF RYE BROOK — „
938 King Street .
Zoning Board of Appeals
April 2, 2013 TE °?00
Meeting at 8:00 p.m.
IE
fDM
AGENDA .JUN ' 5 2013
1 #12-030 M & MStE VILLAGE OF RYE BROOK
(Adjourned from 3/512013)
) r. Mrs. even Epstein BUILDING DEPARTMENT
233 Country Ridge Drive
Construct 1 story, 2 story and second story additions, a new front
porch, reconfigure the driveway, and legalize the existing rear deck
2) #13-005 Nancy Ruskin, 7 Doral Greens Dr. West, Rye Brook, NY 10573
Alan S. Berk, 41 Doral Greens Dr. West, Rye Brook, NY 10573
Re: King Street Proposed Sports Amenity
Requesting a specific interpretation of the Zoning Ordinance of the
Village of Rye Brook
3) Approval of January 15, 2013 and March 5, 2013 Zoning Board Summaries
BOARD: Steve Berger
V Andrew Kaminsky
Jeffrey Richman
Joel Simon
Don Moscato, Chairman
STAFF: Edward Beane, Esq., Village Counsel
Jennifer L. Gray, Esq., Village Counsel
Michael Izzo, Building Inspector
Fred Seifert, Public Access Coordinator
Mr. Donald Moscato, Chairman, welcomed everyone to the April 2, 2013 Zoning Board
of Appeals meeting. He called the meeting to order and introduced Village Staff and
Counsel. Mr. Moscato asked that individuals speak at the podium, state their names,
application, position, and the nature of the variance.
Mr. Moscato stated that there was a sign in sheet in the rear of the room for agenda item
#2. The speakers would be taken in order of the sign in sheet.
�� 1
fl
I�
I
JI
He called for the first item on the agenda:
i
1) #12-030 Mr. & Mrs. Steven Epstein
(Adjourned from 3/5/2013)
233 Country Ridge Drive
Construct 1 story, 2 story and second story additions, a new front
porch, reconfigure the driveway, and legalize the existing rear deck
Mr. Moscato noted that this matter was adjourned from the March 5, 2013 meeting. He
called upon the applicants for their presentation. Mr. Steven Epstein addressed the
Board. For the record, he stated that since March 5ffi Mrs. Epstein was appointed as a
I! Trustee for the Village of Rye Brook. She is here this evening Y solei as a homeowner
and applicant. Mr. Justin Minineri, architect, will review the plans which incorporate the
suggested changes made by the Board at the prior meeting. He noted that the variances
requested have all been significantly reduced.
Mr. Minineri addressed the Board. He summarized his memo to the Board dated March
8, 2013. Six variances were originally requested. The revisions address 5 of the 6
II! variances. The one variance that has not changed is the variance to legalize the existing
g g g
wood deck. The proposed building coverage was 18.9% but the footprint of the building
was reduced so that the proposed building coverage is now 18.3% where 16% is the
maximum permitted. By the building coverage and walkways, the impervious
s
coverage was reduced. The applicant originally sought a variance of 6,486 square feet
and it now has been reduced to 6,160 square feet which is a 62 square foot increase over
the existing non-conformity of 6,098 square feet. This is a significant reduction from the
original request. The front yard impervious coverage variance has been reduced by
pulling the driveway back and slimming it down. The pre-existing non-conformity has
now been reduced. The gross floor area variance was reduced from 4,633 square feet to
4,497 square feet where 3,221.76 square feet is the maximum permitted and the pre-
existing nonconformity is 3,781 square feet. Mr. Minineri explained the plan revisions
to the Board. The last matter addressed was the variance for unenclosed off-street
parking setback. The driveway was pulled back, and made narrower, and moved back
negating the need for this variance.
Mr. Moscato complimented the applicant on the reductions. He called for members of
the public wishing to speak in favor or opposition to the application. There being no
members of the public wishing to comment on the application, a motion was made and
seconded to close the public hearing.
The Board began deliberation. Mr. Kaminsky stated that no issues with the revisions and
commented that he was impressed with the applicant's ability to find a way to reduce
each of the variances.
Mr. Moscato stated that there are no environmental impacts resulting from the variances.
2
Mr. Moscato addressed the character of the neighborhood and noted that several other
homes in the neighborhood have circular driveways and the comparables submitted by
the applicant at the March meeting indicated that the proposed addition is consistent with
the character of the immediate area.
Mr. Moscato read the following resolution:
'i RESOLUTION
:i
!I WHEREAS, application has been made to the Zoning Board by Mr. & Mrs. Steven
Epstein for (1) 2.9% main building coverage variance; (2) 1,186.26 s.f. total impervious
surface coverage variance; (3) 18.7% front yard impervious surface coverage variance;
(4) 1,411.24 sq. ft. gross floor area variance; (5) 1.92 ft. unenclosed off-street parking
ii setback variance; and (6) 4.5 ft. rear yard setback variance, in connection with the
proposed construction of a 1 story, 2 story & 2"d story addition, a new front porch,
reconfiguration of the driveway, and legalization of the existing rear deck, on
property located at 233 Country Ridge Drive, in an R-15 zoning district on the south
side of Country Ridge Drive, approximately 130 feet from the intersection of
pP Y
Rockinghorse Trail and Country Ridge Drive. Said premises being known and
designated on the tax map of the Village of Rye Brook as Parcel ID# 129.83-1-5; and
WHEREAS, a duly advertised public hearing was held on March 5, 2013 and April 2,
2013, at which time all those wishing to be heard were given such opportunity; and
WHEREAS, the proposed action is a Type II action pursuant to the New York State
Environmental Quality Review Act and accordingly, no further environmental review is
required; and
WHEREAS, the Applicant submitted revised plans which reduced the size of the
requested variances and eliminated the request for an unenclosed off-street parking
setback variance; and
WHEREAS, based on the revised plans the following variances are requested by the
Applicant: (1) 2.3% main building coverage variance; (2) 860.26 s.f. total impervious
surface coverage variance; (3) 11.9% front yard impervious surface coverage variance;
(4) 1,275.24 sq. ft. gross floor area variance; and (5) 4.5 ft. rear yard setback variance;
and
WHEREAS, the Board, from the application, after viewing the premises and
neighborhood concerned, and upon considering each of the factors set forth at Section
250-13(G)(2)(b)[2][a]-[e] of the Rye Brook Code, finds with respect to the main building
coverage variance:
3
i
:J
1) The variance will not create an adverse impact to the character of the
neighborhood;
2) The benefit the applicant seeks cannot be achieved through another
method, feasible for the applicant to pursue, that does not require a
variance;
3) The variance is substantial;
4) The variance will not create any adverse impacts to the physical or
environmental conditions of the neighborhood; and
5) The need for the variance is self-created; and
WHEREAS, the Board, from the application, after viewing the premises and
neighborhood concerned, and upon considering each of the factors set forth at Section
2 -
50 13 G 2 2
b a - e of the Rye Brook Code finds with respect to the total
I
impervious surface coverage e variance:I
1) The variance will not create an adverse impact to the character of the
neighborhood;
2) The benefit the applicant seeks cannot be achieved through another
method, feasible for the applicant to pursue, that does not require a
variance;
3) The variance is substantial;
4) The variance will not create any adverse impacts to the physical or
environmental conditions of the neighborhood; and
5) The need for the variance is self-created; and
WHEREAS, the Board, from the application, after viewing the premises and
neighborhood concerned, and upon considering each of the factors set forth at Section
250-13(G)(2)(b)[2][a]-[e] of the Rye Brook Code, finds with respect to front yard
impervious surface coverage variance:
1) The variance will not create an adverse impact to the character of the
neighborhood;
Ili
'i 2) The benefit the applicant seeks cannot be achieved through another
method, feasible for the applicant to pursue, that does not require a
variance;
3) The variance is substantial;
4) The variance will not create any adverse impacts to the physical or
environmental conditions of the neighborhood; and
5) The need for the variance is self-created; and
4
i
0
a
-1
WHEREAS, the Board, from the application, after viewing the premises and
neighborhood concerned, and upon considering each of the factors set forth at Section
250-13(G)(2)(b)[2][a]-[e] of the Rye Brook Code, finds with respect to the gross floor
area variance:
1) The variance will not create an adverse impact to the character of the
neighborhood;
u 2) The benefit the applicant seeks cannot be achieved through another
"I method, feasible for the applicant to pursue, that does not require a
5 variance;
3) The variance is substantial;
4) The variance will not create any adverse impacts to the physical or
environmental conditions of the neighborhood; and
5) The need for the variance is self-created; and
WHEREAS, the Board, from the application, after viewing the premises and
neighborhood concerned, and upon considering each of the factors set forth at Section
250-13(G)(2)(b)[2][a]-[e] of the Rye Brook Code, finds with respect to the rear yard
setback variance:
1) The variance will not create an adverse impact to the character of the
neighborhood;
2) The benefit the applicant seeks cannot be achieved through another
method, feasible for the applicant to pursue, that does not require a
variance;
3) The variance is substantial;
4) The variance will not create any adverse impacts to the physical or
environmental conditions of the neighborhood; and
5) The need for the variance is self-created.
NOW, THEREFORE, BE IT RESOLVED, that the said application for the main
building coverage variance is hereby granted; said application for the total impervious
surface coverage variance is hereby granted; said application for the front yard
impervious surface coverage variance is hereby granted; said application for the gross
floor area variance is hereby granted; and said application for the rear yard setback
variance is hereby granted.
Mr. Moscato called the roll for the main building coverage variance:
Steven Berger Voting Aye
5
a
Andrew Kaminsky Voting Aye
Jeffrey Richman Voting Aye
Joel Simon Voting Aye
Don Moscato, Chairman Voting Aye
GRANTED
Mr. Moscato called the roll for the total impervious surface coverage variance:
Steven Berger Voting Aye
Andrew Kaminsky Voting Aye
Jeffrey Richman Voting Aye
Joel Simon Voting Aye
Don Moscato, Chairman Voting Aye
GRANTED
Mr. Moscato called the roll for the front yard impervious coverage variance:
Steven Berger Voting Aye
Andrew Kaminsky Voting Aye
Jeffrey Richman Voting Aye
Joel Simon Voting Aye
Don Moscato, Chairman Voting Aye
GRANTED
Mr. Moscato called the roll for the gross floor area variance:
Steven Berger Voting Aye
Andrew Kaminsky Voting Aye
Jeffrey Richman Voting Aye
Joel Simon Voting Aye
Don Moscato, Chairman Voting Aye
GRANTED
Mr. Moscato called the roll for the rear yard setback variance:
Steven Berger Voting Aye
Andrew Kaminsky Voting Aye
Jeffrey Richman Voting Aye
Joel Simon Voting Aye
Don Moscato, Chairman Voting Aye
GRANTED
Mr. Moscato reminded the applicant to pull a Building Permit in a timely manner.
Pp � p g Y
it
6
9
VILLAGE OF RYE BROOK
ZONING BOARD OF APPEALS
VILLqGEAD
RESOLUTION MINIS TftATOR
WHEREAS, application has been made to the Zoning Board by Mr. & Mrs. Steven
Epstein for (1) 2.9/
main building coverage variance; (2) 1,186.26 s.f. total impervious
surface coverage variance; (3) 18.7% front yard impervious surface coverage variance; (4)
1,411.24 sq. ft. gross floor area variance; (5) 1.92 ft. unenclosed off-street parking setback
variance; and (6) 4.5 ft. rear yard setback variance, in connection with the proposed
construction of a 1 story, 2 story r& 2nd story addition, a new front porch,
reconfiguration of the driveway, and legalization of the existing rear deck, on property
located at 233 Country Ridge Drive, in an R-15 zoning district on the south side of
Country Ridge Drive, approximately 130 feet from the intersection of Rockinghorse Trail
and Country Ridge Drive. Said premises being known and designated on the tax map of the
Village of Rye Brook as Parcel ID# 129.83-1-5; and
WHEREAS, a duly advertised public hearing was held on March 5, 2013 and April 2,
' 2013, at which time all those wishing to be heard were given such opportunity; and
WHEREAS, the proposed action is a Type II action pursuant to the New York State
Environmental Quality Review Act and accordingly, no further environmental review is
required; and
fWHEREAS, the Applicant submitted revised plans which reduced the size of the
requested variances and eliminated the request for an unenclosed off-street parking setback
variance; and
WHEREAS, based on the revised plans the following variances are requested by the
!i Applicant: (1) 2.3% main building coverage variance; (2) 860.26 s.f. total impervious surface
coverage variance; (3) 11.9% front yard impervious surface coverage variance; (4) 1,275.24
. f .
sq t gross floor area variance; and (5) 4.5 ft. rearY and setback variance; and
WHEREAS, the Board, from the application, after viewing the premises and
neighborhood concerned, and upon considering each of the factors set forth at Section 250-
, � �
13(G)(2)(b)[2][a]-[e] of the Rye Brook Code, finds with respect to the main building
coverage variance:
1 The varianceILL,.. WILL NO p
create an adverse impact to the
I
i
character of the neighborhoo r-- --�
2) The benefit the applicant seek. [ NNO� be achieved through
another method, feasible for the app can co-pursue, that does not require
a variance;
3) The varian e [I,�ISL -stial;
4) The variance [WIL• WILL NOT]d ate any adverse impacts to the
physical or environmental conditions of the neighborhood; and
5) The need for the varian e [I S NOT] self-created; and
WHEREAS, the Board, from the application, after viewing the premises and
neighborhood concerned, and upon considering each of the factors set forth at Section 250-
13(G)(2)(b)[2][a]-[e] of the Rye Brook Code, finds with respect to the total impervious
surface coverage variance:
1) The variance [WILL WILL NO_T] create an adverse impact to the
character of the neighborhood;
2 The benefit thea applicant seeks CA CANNO b� achieved through
pp
[ g
another method feasible for thea applicant to pursue, that does not require
pp � q
a variance;
r�
y 3) The varianc�s//)S NOT] substantial;
4) The variance [WILL X1Icreate any adverse impacts to the
physical or environmental conditions of the neighborhood; and
5) The need for the variane [IS�/ 'S NOT] self-created; and
WHEREAS, the Board, from the application, after viewing the premises and
neighborhood concerned, and upon considering each of the factors set forth at Section 250-
13(G)(2)(b)[2][a]-[e] of the Rye Brook Code, finds with respect to front yard impervious
surface coverage variance:
1) The variance [WIL�WILL g N_OT]=create an adverse impact to the
character of the nei hborhoodJ
'r
G
2) The benefit the applicant seeks [CA� /CANNOT]Ye achieved through
another method, feasible for the applicant to pursue, that does not require
a variance;
3) The varianC[IS AS NOT]_substanti4l;,
4) The variance [WILL/ ILL-N -- any adverse impacts to the
physical or environmental conditions of the neighborhood; and
5) The need for the varian-e [IS IS NOT] self-created; and
WHEREAS, the Board, from the application, after viewing the premises and
' neighborhood concerned, and upon considering each of the factors set forth at Section 250-
13(G)(2)(b)[2][a]-[e] of the Rye Brook Code, finds with respect to the gross floor area
variance:
1) The variance [WIL WILL NOT]? create an adverse impact to the
character of the neighborhood;
2) The benefit the applicant seeks [CA �CNI�Q' ] be achieved through
another method, feasible for the applicant to pursue, that does not require
a variance;
3) The variancOS.,1S NOT] substantial;
4) The variance [WILL/OL NOOcreate any adverse impacts to the
physical or environmental con -tions of the neighborhood; and
5) The need for the variance SIS NOT] self-created; and
WHEREAS, the Board, from the application, after viewing the premises and
neighborhood concerned, and upon considering each of the factors set forth at Section 250-
13(G)(2)(b)[2][a]-[e] of the Rye Brook Code, finds with respect to the rear yard setback
variance:
1) The variance [WILL/ ILL NOT] create an adverse impact to the
character of the neighborhood,7J
2) The benefit the applicant seeks [CAK-%CANNOT] be achieved through
another method, feasible for the applicant to pursue, that does not require
a variance;
3) The varianc S./SIS NOT]_substantial;
4) The variance [WIL ILL~NO`] create any adverse impacts to the
physical or environmental conditions of the neighborhood; and
5) The need for the variance [IS,JS NOT] self-created.
i
NOW, THEREFORE, BE IT RESOLVED, that the said application for the
main building coverage variance is hereby([GRANTED/,DENIED • said application for the
total impervious surface coverage variance—i—s _hereby [GRANTED/DENIED]; said
I
application or the front yard impervious surface coverage variance is hereby
RANTS ��DENIED]; said application for the gross floor area variance is hereby
II'
[UKAN -D/DENIED]; and said application for the rear yard setback variance is hereby
[GRANT D/DENIED], on the following condi
2. ; and
i 3.
Dated: April 2, 2013
Mr. Don Moscato, Chairman
I' 1 Mr. Moscato called the roll:
Steven Berger Voting: '/lye Nay Abstain Absent
Andrew Kaminsky Voting: —7�A,�� Nay Abstain Absent
Jeffrey Richman Voting: �/Aye Nay Abstain Absent
Joel Simon Voting: VA Nay Abstain Absent
Don Moscato Voting: Aye Nay Abstain Absent
yes
CJNays
Abstain
l Absent
i
i
o
I
'I
Mr. Moscato called for a brief recess. Upon the Board's return, item #2 was called
1
before the Board.
I
2) #13-005 Nancy Ruskin, 7 Doral Greens Dr. West, Rye Brook, NY 10573
Alan S. Berk, 41 Doral Greens Dr. West, Rye Brook, NY 10573
'j Adjourned from March S, 2013
Re: King Street Proposed Sports Amenity
Requesting a specific interpretation of the Zoning Ordinance of the
!I� Village of Rye Brook
I�
j Mr. Moscato noted that the Zoning Board has been asked to render a decision on a
determination made by the Building Inspector. He asked that the Village Attorney
frame the issue presented by this application.
j Edward F. Beane, Esq., Village Counsel, offered to frame the issue and noted that
he and Attorney Jennifer Gray were there to offer guidance to the Zoning Board of
Appeals. Attorney Clifford Davis interrupted, requesting to make an application
for Attorney Beane and the law firm of Keane & Beane, P.C. to be recused from
representing the Zoning Board of Appeals.
Mr. Moscato noted that the firm of Keane & Beane has been retained by the
Village to provide legal counsel, and that includes the Zoning Board of Appeals.
Attorney Davis again requested to make his application seeking recusal and the
Board allowed him to explain the basis for his request.
Attorney Davis stated he is counsel to Nancy Ruskin, 7 Doral Greens West, and
Alan Berk, 41 Doral Greens West. He stated that the applicants are adjoining
neighbors who will be detrimentally affected by the Reckson application. He
requested that Keane & Beane recuse themselves from representing the Zoning
Board as he felt that Keane & Beane could not represent both the Building
Inspector and the Board that is going to determine whether or not the Building
Inspector's interpretation is correct. They cannot represent the party and the
judge, which is the Board of Appeals, in the same proceeding. He presented the
Board with copies of a memo dated February 6, 2013 where Attorney Beane
advised him that his firm represents the Village staff and its elected officials. He
noted that the letter continues and confirms that Keane & Beane is representing
the Building Inspector. Thus, Keane & Beane must recuse itself and the Zoning
Board must retain an independent counsel.
Mr. Simon noted that this is not an adversarial situation. Mr. Izzo is not invested
in the outcome of the interpretation of the Code. The firm of Keane & Beane
represents the Village which includes employees and elected and appointed
officials. The goal here is to interpret the Village Code and determine whether or
not the determination of the Building Inspector is correct.
j 11
1�
1
3
-i
Mr. Kaminsky stated that he resented the fact that Attorney Davis is suggesting
that Attorney Beane will be making the determination for the Board. The Board
will make its own determination based on whatever facts are presented. Second,
Ij Mr. Kaminsky questioned why the issue of recusal is being raised now when
Attorney Davis could have raised it when he appeared at last month's meeting.
Mr. Kaminsky noted that by raising this issue with no prior notice leaves the
Zoning Board without legal representation in the event Keane &Beane is recused.
'j Attorney Beane noted that Attorney Davis is making an assumption that there is an
adversarial relationship with different interests based on no evidence other than a
hypothetical issue. Attorney Davis is making a second assumption that, Keane &
Beane, is here to advocate on behalf of the Building Inspector. That is not what
Keane & Beane is here for. This decision is in the hands of the Zoning Board of
Appeals. He reiterated that the firm's only position here is to frame the issue and
make sure facts are stated accurately. The ZBA is an independent Board. There is
no adverse relationship here. He respectfully declined to recuse himself and his
firm. His advice to the Board is to deny the application seeking recusal but if the
Board wants Keane & Beane to recuse itself then that is what will happen.
Attorney Davis noted that Mr. Izzo made his determination and further referenced
his February 6, 2013 memorandum which states that Keane & Beane represents
the Building Inspector. The firm of Keane & Beane cannot represent both the
Building Inspector and advise the Zoning Board of Appeals.
Mr. Moscato noted that there will be no advocacy either directly or indirectly by
Village Counsel. He stated that the Zoning Board has the right to counsel, and did
not believe that there is a conflict here. Attorney Beane noted there is no diversion
of interests present here and therefore there is no conflict.
Mr. Moscato noted that this Board is prepared to look at and interpret the Code
irrespective of Mr. Izzo's logic or reasoning in coming to his determination. The
Board is charged with interpreting the Village Code. He asked that Attorney
Beane frame the issue.
Attorney Beane noted that the Zoning Board of Appeals must review all the
information and submissions by the applicant, property owner and residents and
read the 10 words at Section 250-19(1)(c) of the Village Code to determine
whether or not a private recreation facility is a use that is permitted in the OB-1
Zone at the discretion of the Village Board. Mr. Izzo determined that a private
recreation facility is a permitted use subject to the discretion of the Village Board
pursuant to its special use permit authority. Whether this is a good project or a
bad project, too big or too small is not the issue. The Zoning Board is capable of
reading the Code and making a determination of what the words mean.
12
'i
'i
Attorney Davis noted that he has made three submissions (January 10, 2013;
February 21, 2013; March 15, 2013). The issue before this Board is for a pure
legal interpretation of the Village Code which states, "Governmental buildings and
uses, libraries and parks and recreation facilities." Reckson has made an
application for a four rink ice arena. Attorney Davis represented that this would
be one of the largest ice facilities in New York State. The sole issue before the
ZBA is to determine whether the previously quoted Village Code section refers to
parks and recreation facilities as a governmental use or whether it allows a private
commercial recreation facility with no limits to size which can be located in every
residential zoning district and the OB-1 Zone.
Attorney Davis stated rules of statutory construction must be followed by the
Board in making its interpretation. Attorney Davis referred to Mr. Izzo's
determination which stated Reckson requires a variance for off-street parking.
I Attorney Davis claimed Mr. Izzo never discussed with Reckson whether or not the
statute meant a governmental parks and recreation facility or whether this could be
a private commercial recreation facility of unlimited size.
Attorney Davis stated the property is in an OB-1 Zoning District which allows the
applicant to seek a special permit for that which is permitted in the R-25 Zoning
District. The subject Code language is found in the provisions for the R-25
District. The ordinance must be considered as a whole and the words must be read
in context. Attorney Davis stated all the uses in the R-25 District are those that
could be found in a residential district. Attorney Davis explained why the words
"parks and recreation facilities" should be read together instead of separately.
Attorney Davis reviewed the content of the Village Parks and Recreation
Department website which lists the Village's parks.
Attorney Davis stated the Village Code has a separate section for Bowling Alleys,
limiting them to C1 districts, but there is no special permit section for a mega ice
arena. Attorney Davis provided the Board with copies of the Town of Greenburgh
Code as an example of how the Town of Greenburgh legislates private recreation
facilities. Attorney Davis stated there is nothing in the Rye Brook Zoning Code
regarding a private commercial recreation facility.
Attorney Davis explained that the words "parks and recreation" go together and
the words cannot be separated to make parks one item and recreation as another.
He stated the words are plain and there is no ambiguity. The grammar can only be
correct if parks and recreation facilities are treated as one entity. Attorney Davis
stated the Code must be interpreted to avoid absurd results. If this Board finds a
private recreation facility is permitted in the R-25 district then it is permitted in
every residential district with the only limitation being an environmental review
under SEQRA.
13
Attorney Davis stated there is a legislative history for this Code section. Attorney
Davis stated this statute referring to parks and recreation facilities first came into
the Zoning Code in 2006 when the R-25 District was created. Attorney Davis
referred to a memorandum from the Village Planning Consultant regarding the R-
25 District which he provided to the Board in his February 2013 submission. The
memorandum states the intent was to preserve and improve the residential
character of the area. Other than Reckson, no other applicant has made an
application to the Village for a recreation facility. Attorney Davis stated that
Section 250-19.1(c) provides.for parks and recreation facilities, public in nature,
under the auspices of the Village Parks and Recreation Department but does not
provide for a generic private recreation facility.
Attorney Davis provided the definition of a "park" from' Village Code Section
149-2. He stated that unlike the definition of "park," the Reckson application is
not on public property and is not a facility under the control of the municipality.
Attorney Davis also discussed a case in Pennsylvania which addressed whether a
dirt bike track was a parks and recreation facility under that municipality's code.
Attorney Davis noted that the Rye Brook Code refers to membership clubs and
bowling alleys, but ice rinks are not addressed. Attorney Davis also discussed
how the Village Code regulates executive learning centers which include private
commercial recreation uses. Private commercial recreation uses are addressed
very specifically and Reckson cannot rely upon these provisions. Reckson should
have made an application for a zone change. Attorney Davis noted that Reckson
objects to the introduction of the legislative history. Attorney Davis stated that the
2006 legislative history is relevant because he stated it is the first time the subject
language was included in the Village Code. Attorney Davis referred to rules of
statutory interpretation in support of his interpretation of the Code. Attorney
Davis stated that this Board should find that Code does not provide for a private
recreation facility.
Mr. Moscato urged members of the public to stay on topic when providing their
comments to the Board. Mr. Moscato called for the first speaker, Attorney
William Null, legal counsel for the property owner, Reckson Operating
Partnership, L.P. Mr. Simon asked if the words parks and recreation facilities
were taken as a single phrase, would Attorney Davis' position be correct?
{ Attorney Null responded that it would not and proceeded to explained Reckson's
d position. The issue of whether this is a "mega" ice rink is not the issue before the
Board. That is an issue before the Village Board pursuant to its review of the
special permit application. Attorney Null stated the key question here is what the
language in the Rye Brook Code means —not the meaning of code language from
other municipalities. The question is: are private recreation facilities allowed
versus government recreation facilities. When interpreting the Code every word
14
s
it
should be given effect and all parts of the code should be read together, Attorney
Null noted that there are other provisions in the R-25 district that specifically
!I direct the use is not be used for commercial purposes, but the subject language
does not have this limitation.
Mr. Berger noted that the limitation could be covered by use of the term
governmental at the beginning of the provision. Attorney Null responded that
!� private libraries are common. Because the provision states governmental
buildings and uses, if a library could only be governmental there would be no need
to separately list it. If a park could only be governmental there would be no need
to separately state parks in addition to "governmental buildings and uses."
Mr. Simon inquired if the phrase "parks and recreation facilities" were taken as a
single phrase does that infer that it must be governmental?
Attorney Null does not believe so. He stated the index to the Zoning Code refers
to a "Recreation and Parks Department," not a "Parks and Recreation
Department." He stated the Village of Rye Brook's Open Space Zone Study refers
to both private and public recreation facilities, not "parks and recreation facilities."
Attorney Null stated the Nassau Coliseum is a government recreation facility. It is
the impact and not the ownership that is the concern. The impacts of the
recreation facility, whether public or private, are reviewed by the Village Board
pursuant to the special permit standards in the Code.
Attorney Null noted the subject language was not newly created in 2006. What
was newly created in 2006 was the R-25 District. The concern wasn't the special
permit provisions and therefore, the allegation that the Village Planning
Consultant comments related to this section is misplaced.
Mr. Kaminsky stated his understanding that the subject language predated the
formation of the Village in 1982 and therefore the language goes back to the Town
of Rye Code.
Attorney Null reiterated that the Village Planning Consultant comments on the
2006 R-25 district creation are not relevant to the interpretation of the subject
language. Reckson does not believe that the phrase "parks and recreational
facilities" was intended by the Village to be one and the same. When the Reckson
1 application was submitted to the Village, Reckson specifically noted that it was an
application for a recreation facility. There is no meaningful difference between a
facility that is privately or publicly owned. Reckson's reading is that private and
public facilities are allowed subject to the issuance of a special use permit by the
Board of Trustees. It is a well regarded and well accepted premise in zoning that
zoning governs the use and not ownership.
15
'i
'i
:I
J Attorney Null noted that Bellefair has its own private Village Green and it is a
park; it is an accessory use but that does not change the nature. Attorney Null
stated it is important that this is not listed as a principal permitted use. The
!� impacts will be reviewed by the Village Board and they will not go unchecked.
Attorney Null stated that the concerns that were raised by Mr. Davis are cast in a
shadow of fear and angst about the nature of the use, all of which is controlled by
the Village Board. If the concern is that the language could not mean a private
facility pinterpretation,because of the im acts of the use under that that is all the
more reason why it is subject to the discretion of the Village Board through review
of the special permit application and imposition of reasonable conditions. If it
were interpreted the other way to mean the facility could only be run by the
Village, why would the Village Board require itself to comply with the special
permit condition? If its own Parks and Recreation Department decided there
should be a baseball field, why would the Village Board require its own
Department to get a special permit?
The definition of"parks" says that it needs to be Village-owned but that definition
does not apply to the Zoning Code because it is in a separate chapter of the Village
Code. Each chapter often has separate definition and they apply within their own
context. The uses that are in the subject section are all special permit uses —
carefully regulated, subject to public hearings, and to be reviewed by the Village
Board. In the special permit process, reasonable conditions on the use may be
imposed by the Village Board in the approval resolution.
Attorney Null stated the Reckson application is not in an R-25 district. The
Reckson application is on a 30-acre site in an OB-1 District. Case law and
arguments have been presented in Reckson's written submissions. If the intent
was to have only government buildings and uses those government buildings and
uses would unquestionably include libraries and parks and recreation facilities that
are governmental. The subject language adds nothing to the sentence unless you
read it to add something more than governmental buildings and uses. The Code
lacks restrictive language for the subject provision, such as "not used for
commercial purposes." If the Village decided it wanted a four rink ice skating
facility it would be subject to the same special permit conditions and it would not
make a difference in the way it is operated if it was private or public.
Governmental facilities can be operated by individual private contractors.
Reckson has discussed how this facility will be operated. The Village Board will
decide whether this is an appropriate use for this site.
Mr. Richman asked whether there will be a public use component to the rink.
Attorney Null responded that it will be open to the public.
Mr. Moscato called for the next speaker. Nancy Ruskin, 7 Doral Greens West,
addressed the Board. She noted that she is a resident and not a community
a
16
i
'i
:i
activist. She noted that this facility will affect her quality of life. She stated that
she holds a master's degree in urban planning. The intent of the language in the
R-25 district is to permit government parks and government recreational facilities
for the benefit of the residents. Parks and recreation is a common planning term
used to describeublic facilities. The drafters of the Rye Brook ordinance could
p Y
never have contemplated an application for a massive for-profit facility within an
office park zone. The use they envisioned was a government park or a
government recreation facility. Private uses in zoning ordinances are regulated. If
the Village wanted an enormous for-profit facility to be permitted in the residential
zone then it would have specified that and regulated it through conditions and
requirements. Private recreational uses are not permitted in an R-25 zone. Land
use changes of this magnitude should be addressed as a zone change. She asked
the Board to think of what approval of this facility would mean to Rye Brook.
This type of facility belongs in a commercial zone and not in a quiet neighborhood
on two-lane roads. This facility will destroy the quality of life that the zoning
ordinance is meant to protect. Reckson's application is a misguided request and it
creates a dangerous precedent for the Village.
Mr. Moscato called for a brief recess.
Upon the Board's return, Mr. Moscato noted there were no other members of the
public that have signed up to provide comments. Mr. Moscato permitted Attorney
Davis another opportunity to address the Board.
Attorney Davis noted that whether Reckson provides public ice time does not
make a difference. Attorney Davis addressed Attorney Null's point that in zoning
law it is not important who owns the property because the approval runs with the
land. There are provisions in the Zoning Code that regulate the type of ownership
where it states "stable, not used for commercial purposes," "public utility
building" and "government buildings and uses."
Mr. Moscato turned to the members of the Board for questions and comments.
Mr. Simon asked Attorney Davis to address Attorney Null's point that if the
language were read to permit only governmental facilities the Village Board
would then require itself to secure a special permit for its own facility.
Attorney Davis responded that it's because it's a residential district. It is the same
issue if it were an application for a stable not for commercial purposes or a public
utility building. Attorney Davis responded that the Village is not exempt. By
stating governmental buildings and uses, the Code requires a special permit for
those uses. If the Village wanted its own ice rink it could have thousands of
people visiting it and it should be subject to a special permit.
17
I
Mr. Simon asked what evidence Attorney Davis has other than the Village Parks
and Recreation website that supports his position that a parks and recreation
facility must be a government facility.
Attorney Davis stated that the words parks and recreation mustgo together. He
referred to the brochure of the Village Parks and Recreation Department and the
existence of the Village Parks and Recreation Advisory Council. Attorney Davis
stated the words go together grammatically. This is a land use term.
Ili Mr. Simon repeated his question that assuming it is a single phrase, why must it be
a governmental function?
Attorney Davis responded that the term speaks for itself. He referred to the
aVillage Parks and Recreation website and his written submissions.
Mr. Berger asked Attorney Davis to distinguish between the covered tennis court
'at Doral Arrowwood which is privately owned and available for the public to use
for a fee, and Reckson's application.
AttorneyDavis responded
that it was permitted as accessory use to a hotel or
p p rY
permitted as part of an executive learning center.
Mr. Berger gave other examples of private commercial recreation facilities open to
the public such as the private squash facility at 800 Westchester Avenue and golf
course at Doral Arrowwood. The Board and Attorney Davis discussed other
provisions of the Village Code.
Mr. Simon asked whether it was Attorney Davis' position that a private library
would also not be permitted by the subject language. Attorney Davis responded
that is correct.
Mr. Moscato called upon two additional members of the public wishing to address
the Board. Mrs. Dorothy Roar of Doral Greens addressed the Board. She
previously served on the Rye Brook Zoning Board of Appeals. When you look at
what can be put into this zone, certain things have the right to be put in. The
question is whether the use will be commercial use versus a governmental use.
There are restrictions for uses that are allowed. She felt that the application was
for a for-profit, money-making operation and not a public recreation facility and it
did not belong in this residential area.
j Martin Freedman of Doral Greens addressed the Board. There has been a lot of
repetition and there have been many illogical statements. Everyone that lives in
this area will be affected by something that is not meant to be a parks and
J
18
n
9
II
i
j recreational facility. It will affect lives and everyone that live in the area. A quiet
residential community will not exist with something like this facility being built.
Attorney Null noted that he understands the concerns of the residents regarding
impacts. The Village Board reserved unto itself the jurisdiction to review the
impacts of the application pursuant to the special permit process and decide what
does and does not belong on the site. While listed in the R25 District it also
applies to the OB-1 District. This is not just a residential area, it is also an office
park.
Mr. Berger noted that the determination made today will apply to the OB-1
District and all residential districts.
Attorney Null stated the purpose of the special permit process is to make sure
there is a careful review of the impacts pursuant to the applicable standards.
Mr. Moscato called upon Attorney Beane to briefly address the Board. Attorney
Beane noted that there were facts that were misstated in Attorney Davis'
application. Section 250-3(D) of the Village Code does not state that "It is
intended that the uses set forth for each district shall not be permitted uses in any
other district unless allowed specifically." What it really says is that "It is
intended that the uses set forth for each district shall not be permitted uses in any
other district unless allowed specifically or by reference as permitted uses in said
district." The last part of the provision was omitted and Attorney Beane stated he
felt that is material. The second misstatement is that the subject language was not
first inserted in the Code in 2006. It appeared in the R-20 district prior to the
creation of the R-25 district. Attorney Beane reframed the issue. The uses
permitted pursuant to the subject language are not automatically granted; they are
permitted only at the discretion of the Board of Trustees. The Board of Trustees
could turn Reckson's proposal down if it does not meet the applicable standards.
This is not about whether this use is a good use or a bad use. The issue is whether
the use is permitted, not whether it will be approved.
Nick Lyras, President of the Doral Greens Homeowners Association, addressed
the Board. He asked for clarification on the jurisdiction of the Zoning Board of
Appeals. It was clarified that the jurisdiction is to interpret the Code, not
determine whether Reckson's application should be granted or denied.
Mr. Moscato noted that letters and submissions were received from the applicant,
Cuddy & Feder, Doral Greens Homeowner Association, and a resident. These
items will be made part of the record. Mr. Moscato called for discussion by the
Board members.
19
I
Mr. Richman asked to hear from Mr. Izzo regarding his interpretation of the Code.
Mr. Moscato noted that the Board can base its interpretation on its own reasoning
and does not need to rely upon Mr. Izzo's reasoning. Mr. Izzo, Building
Inspector, noted that one of his charges is to interpret and enforce the Zoning
Code. He noted that he makes code interpretations every day. He stated that it is
his responsibility to interpret the Code using the plain language. Mr. Izzo
explained that he reviewed the code language as written and made his
determination.
Mr. Simon noted that he does not see anything in the provision that would require
i7 parks and recreation facilities to begovernmental in nature.
Mr. Berger noted that he spent a lot of time the past two months reviewing
grammar books. He does not believe the word "governmental" modifies the
whole phrase because of the insertion of a comma and the use of the word "and."
Mr. Berger also noted that the context of the statute shows that there are other
private recreation uses permitted.
Mr. Kaminsky stated he is unsure of where he stands but that it would be clearer if
the language were written to include the words "such as" after governmental
buildings and uses.
Mr. Richman stated the language does not prohibit a privately owned recreation
facility.
Mr. Moscato stated the Board's decision could create a precedent which will affect
all residential areas, unless the language is modified by the Board of Trustees
through the legislative process. However, obtaining a Special Use Permit is an
onerous process and is not a rubber stamp. Mr. Moscato noted that he has
confidence in the wisdom of the Board of Trustees. So the argument for setting a
precedent is very serious but the Board of Trustees is the appropriate vehicle to
make sure that whatever is best for the Village is what is followed.
Mr. Moscato discussed ambiguity. Either the language is clear and must be
reviewed on its own or it is ambiguous and the Board must look to other
documents to determine the meaning. At least two members of the Board were
present for the Village Board's meetings concerning the creation of the R-25
district. We understand that the intent of the R-25 district's creation was to protect
a particular area of the Village. Mr. Moscato noted that he does not believe the
statement is ambiguous. He felt that the statement is clear when you review it
with the clauses that follow. If you argue that government uses encompasses
everything in that provision, then you don't need the language after "governmental
buildings and uses." The Board of Trustees inherited wording from the Town of
Rye and it was placed in the Village's Code. Legislation is reactive or proactive.
20
i
This is the first time that this issue has been challenged, by anyone. Comparing
our code to the code of other municipalities, like Greenburgh, presupposes that
every municipality is thinking on the same page which is not the case.
To deny private recreation facilities across the entire Village residential area is an
extreme position. Mr. Moscato noted the Board has heard reference to private and
commercial but you can have a facility
that is private but not necessarily
commercial. If the Board sustains the Building o Inspector's determination, then it
means that the
word recreation means both private andublic. If the language
p � e g
only meant public uses, then there would be no need for the language following
"governmental buildings e
d gs and uses." Mr. Moscato stated his belief that
"governmental buildings and uses" is an independent clause. Mr. Moscato does
not think the language was intended to deny private recreation facilities in all areas
in the Village, particularly where they are subject to special permit approval which
is an onerous process. Mr. Moscato also noted that many times private recreation
facilities are open to use by the public. Mr. Moscato does not think the code
language was intended to prohibit such use.
Mr. Kaminsky noted that the fact that the Parks and Recreation website only lists
Village parks is not persuasive because he would not expect the Village to
advertise private recreation facilities open to the public.
Mr. Moscato asked for the consensus of the Board regarding a resolution.
Attorney Gray stated that the public hearing needed to be closed. On a motion,
and second, the public hearing was closed.
Steven Berger Voting Aye
Andrew Kaminsky Voting Aye
Jeffrey Richman Voting Aye
Joel Simon Voting Aye
Don Moscato, Chairman Voting Aye
Attorney Gray noted that if the Board is prepared to make a decision, a resolution
could be read and the Board could vote on the resolution. The arguments adopted
by the Board can be incorporated into the draft decision to accurately reflect the
Board's reasoning as stated at tonight's meeting.
Mr. Moscato called upon each board member to state their position to get a
consensus of the Board. Mr. Berger noted the ZBA was not commenting on the
merits of the Reckson application, but rather the determination made by the
Village's Building Inspector. He stated that he is comforted by the Special Permit
process. The Village Board of Trustees will consider all ramifications of any
application and impose whatever reasonable conditions are appropriate. He
21
i
_i
agreed with Mr. Moscato that the language contains independent clauses and
would vote to uphold the determination of the Building Inspector.
Mr. Kaminsky noted that he has struggled with this application. He stated he is
inclined to uphold the determination, but his preference is to abstain.
Mr. Richman stated that the language of the statute is clear and unambiguous and
he would vote to uphold Mr. Izzo's interpretation.
Mr. Simon finds the words after "governmental buildings and uses" to be a
separate clause, but also finds the phrase "parks and recreation facilities" to be a
singular phrase. He does not believe parks and recreation facilities have to be
governmental in nature. Mr. Simon would vote to uphold the Building Inspector's
interpretation.
f
Mr.Moscato would vote to uphold the Building Inspector's interpretation for the
reasons previously stated.
Mr. Kaminksy confirmed he will abstain
Attorney Gray read the following resolution:
RESOLUTION
WHEREAS, application has been made by Nancy B. Ruskin, 7 Doral Greens West, and
Alan S. Berk, 41 Doral Greens West, by their attorney Clifford L. Davis, Esq., to the
Village of Rye Brook Zoning Board of Appeals on January 11, 2013, appealing the
Village of Rye Brook Building Inspector's November 21, 2012 determination that the use
proposed in an application submitted by Reckson Operating Partnership, LP for a private
recreation facility consisting of four ice rinks is a permitted use in the OB-1 Zoning
District subject to the issuance of a special permit by the Village of Rye Brook Board of '
Trustees;
WHEREAS, a duly advertised public hearing was adjourned from March 5, 2013 and
held on April 2, 2013, at which time all those wishing to be heard were given such
opportunity; and
'I WHEREAS the proposed action is an Unlisted action pursuant to the New York State
p p
Environmental Quality Review Act (SEQRA).
NOW, THEREFORE, BE IT RESOLVED, that upon consideration of all written and
oral arguments and submissions in the Record before the Zoning Board of Appeals, the
Zoning Board of Appeals hereby adopts a Negative Declaration pursuant to SEQRA and
22
1
hereby upholds the decision of the Village of Rye Brook Building Inspector that a private
recreation facility is permitted by special permit pursuant to the provisions of Village of
Rye Brook Code §§250-27 and 250-19.1(c)(3)
BE IT FURTHER RESOLVED, that the Chairman of the Zoning Board of Appeals is
hereby authorized to finalize the text of the attached decision in consultation with Village
counsel to accurately reflect the discussions and reasoning of the Zoning Board of
Appeals set forth at its April 2, 2013 meeting.
Attorney Gray called the roll:
I
Steven Berger Voting Aye
Andrew Kaminsky Abstain
Jeffrey Richman Voting Aye
Joel Simon Voting Aye
Don Moscato, Chairman Voting Aye
The Building Inspector's determination was upheld by a vote of four to zero with
one abstention.
i
23
a
I
E � U E
D ECC WE
APR _ 9 scut VILLAGE OF RYE BROOK
ZONING BOARD OF APPEALS
p VILLAGE CLERK'S OFFICE RESOLUTION VILLAGE ADMINISTRATO;'
WHEREAS, application has been made by Nancy B. Ruskin, 7 Doral Greens West, and
Alan S. Berk, 41 Doral Greens West, by their attorney Clifford L. Davis, Esq., to the Village of
Rye Brook Zoning Board of Appeals on January 11, 2013, appealing the Village of Rye Brook
Building Inspector's November 21, 2012 determination that the use proposed in an application
submitted by Reckson Operating Partnership,LP for a private recreation facility consisting of four
ice rinks is a permitted use in the OB-1 Zoning District subject to the issuance of a special permit
by the Village of Rye Brook Board of Trustees;
WHEREAS, a duly advertised public hearing was adjourned from March 5, 2013 and held
I
on April 2,2013, at which time all those wishing to be heard were given such opportunity; and
WHEREAS, the proposed action is an Unlisted action pursuant to the New York State
Environmental Quality Review Act (SEQRA).
NOW, THEREFORE, BE IT RESOLVED, that upon consideration of all written and
oral arguments and submissions in the Record before the Zoning Board of Appeals, the Zoning
Board of Appeals hereby adopts a Negative Declaration pursuant to SEQRA and hereby upholds
the decision of the Village of Rye Brook Building Inspector that a private recreation facility is
permitted by special permit pursuant to the provisions of Village of Rye Brook Code §§250-27 and
250-19.1(c)(3).
Dated: April_1, 2013
Mr. Don Moscato, Chairman
The roll was called:
Steven Berger Voting: X Aye Nay Abstain Absent
Andrew Kaminsky Voting. Aye Nay X Abstain Absent
Jeffrey Richman Voting. X Aye Nay Abstain Absent
Joel Simon Voting: X Aye Nap Abstain Absent
Don Moscato Voting: X Aye Nay Abstain Absent
4 Ayes
0 Nays
J
1 Abstain
0 Absent
i
APPEAL OF BUILDING INSPECTOR'S DETFE �
ION
E C DING VILLAGE OF RYE BROOK ZONING
SS250-27(c)(2) and 250-19.1(c)(3)
APO _ 9 2t VI E OF RYE BROOK ZONING BOARD OF AP _
VILLAGE CLERr ' F C
skin, 7 Doral Greens West, and Alan S. Berk, 41 Doral Greens West,
(collectively referred to as the "Appellant"), by their attorney Clifford L. Davis, Esq.,
submitted an application to the Village of Rye Brook Zoning Board of Appeals ("ZBA") on
January 11, 2013, appealing the Village of Rye Brook Building Inspector's November 21,
2012 determination that the use proposed in an application submitted by Reckson Operating
Partnership, LP ("Reckson") for a private recreation facility consisting of four ice rinks is a
permitted use in the OB-1 Zoning District ("Appeal") at the discretion of the Board of
Trustees ("BOT") pursuant to the procedure specified in Village of Rye Brook Zoning Code
("Village Code") §250-6(J)(1).
In this Appeal, the ZBA must review the language of Village Code §250-27(c)(2) and
Village Code §250-19.1(c)(3) and determine whether the Building Inspector's interpretation
of such language — that recreation facilities owned and operated by a private entity are permitted in the
OB-1 Zoning District at the discretion of the Board of Trustees pursuant to Village Code's pedal permit
procedure — should be affirmed or reversed. The particular language, the interpretation of
which is at issue in this appeal,is set forth in Village Code §250-19.1(c)(3)which states:
l
(c) Uses permitted at discretion of the Board of Trustees,
pursuant to the procedure specified in Article IV, §250-6H(1):
(3) Government buildings and uses, libraries and parks
and recreation facilities.
The jurisdiction of the ZBA on this appeal is whether the Building Inspector properly
determined that, under Village Code %250-27(c)(2) and 250-19.1(c)(3), a private recreation
facility is a permitted use in an OB-1 zoning district at the discretion of the BOT pursuant to
the special permit procedures set forth in the Village Code. The ZBA's jurisdiction is not to
decide the merits of the Reckson application and/or any opposition thereto, whether the
proposed recreational facility will create traffic, noise or other impacts, whether the
proposed recreational facility is otherwise appropriate for its proposed location, or other
issues.
I. BACKGROUND -THE RECKSON APPLICATION
By way of background, the portion of the Reckson property where the recreation
facility is proposed is identified as Section 129.25, Block 1 and Lot 1, located in the OB-1
Zoning District and Z-1 Airport Zone, consists of approximately 31.5 acres, and is located
1
I
13131121447336v2 418113
I
in the western portion of the Reckson Executive Park. The development of the Reckson
Executive Park began in 1980,when the Rye Town Board approved a site plan for the Royal
Executive Park following the preparation of an Environmental Impact Statement and
adoption of an Environmental Findings Statement pursuant to the New York State
Environmental Quality Review Act ("SEQRA").
Following the original site plan approval (and the intervening formation of the Village
of Rye Brook), a series of subdivision applications were submitted to the BOT which
ultimately resulted in the subdivision of the property into three parcels: (1) Royal Executive
Park I (25.9 acres); (2) Royal Executive Park II (18.2 acres); and (3) Royal Executive Park III
(31.56 acres). The 31.56 acre parcel known as Royal Executive Park III is the property on
which the recreation facility is now proposed.
The Royal Executive Park III parcel has been the subject of prior development
approvals, including a site plan for 345,000 s.f. of office space, which over the years was
amended to increase the square footage to 360,000, and later reduce it to 280,000 s.f. of
office space. The site plan approval for 280,000 s.f. of office space is currently valid until
2015.
In November 2012, Reckson submitted an application for an amendment to the
previously approved site plan, to now authorize construction of a 140,000 s.f. recreation
facility with four ice rinks and associated parking. Upon submittal, the Reckson application
1 was reviewed by the Building Inspector .for zoning compliance. The Building Inspector
found the application to be in compliance with all zoning requirements of the Village Code,
including the proposed use, except for the one item identified in his November 21, 2012
memorandum not germane to this appeal—off-street parking.
II. APPEAL OF BUILDING INSPECTOR'S DETERMINATION
Pursuant to Village Code §250-13(G)(1), on January 11, 2013, the Appellant
submitted an appeal of the Building Inspector's determination to this Board and sought an
interpretation of Village Code §5250-27 and 250-19.1(c)(3) which, when read together,
provide that the following uses are permitted at the discretion of the BOT, subject to the
approval of a special permit:
(c) Uses permitted at discretion of the Board of Trustees,
pursuant to the procedure specified in Article IV, §250-6H(1):
(3) Government buildings and uses, libraries and parks
and recreation facilities.
On November 21, 2012, the Building Inspector determined that a private recreation
facility is permitted by special permit in the OB-1 Zoning District pursuant to this provision.
1
1313/12/44133Gv2 4/8/13
I
Review of his determination and the above-referenced language is the matter which is before
this Board.
The Appellant appeared at the ZBA's March 5, 2013 meeting and requested an
adjournment to its April 2, 2013 meeting because the full complement of the ZBA was not
present at the March 5, 2013 meeting. The ZBA granted this request.
The ZBA considered the Appellant's request for an interpretation at its April 2, 2013
meeting at which time all members of the ZBA were present.
The following written submissions were considered by the ZBA in this appeal:
1. Letter to the ZBA from Clifford L. Davis, Esq., Attorney for Appellant, with
Application Form and enclosures, dated January 10,2013
2. Memorandum to the ZBA from Mr. and Mrs. Vincente Citarella, dated January 15,
2013
3. Letter to the ZBA from Clifford L. Davis, Esq., Attorney for Appellant, with
enclosures, dated February 21,2013
4. Letter to the ZBA from Cuddy & Feder, LLP, Attorney for Reckson, with
enclosures, dated February 28, 2013
5. Letter to the ZBA from Cuddy & Feder, LLP, Attorney for Reckson, with
enclosures, dated March 8, 2013
6. Letter to the ZBA from Clifford L. Davis, Esq., Attorney for Appellant, with
enclosures, dated March 15, 2013
7. Letter to the ZBA from Doral Greens Homeowners Association, Inc., dated March
29, 2013
III. DECISION
When read together, Village Code §§250-27(c)(2) and 250-19.1(c)(3) provide that the
following uses are permitted subject to the approval of a special permit by the BOT:,
(c) Uses permitted at discretion of the Board of Trustees,
pursuant to the procedure specified in Article IV, §250-6H(1):
(3) Government buildings and uses, libraries and parks
and recreation facilities.
The Appellant argues that rules of grammar and statutory interpretation dictate that
"parks and recreation facilities" must be read together and must be limited to governmental
"parks and recreation facilities," as opposed to private recreation facilities. In this regard,
the Appellant submits that the word "government" modifies and limits every other term in
the subject provision. The Appellant further asserts that interpreting the subject language to
1313/12/441336v2 4/8113
I
i
permit private recreation facilities will permit "mega" private recreation facilities in every
residential zoning district in the Village.
Reckson, who also appeared at the April 2, 2013 public hearing, argues that under
Village Code 5§250-27(c)(2) and 250-19.1(c)(3) a private recreation facility is a use permitted
in the OB-1 Zoning District subject to the issuance of a special permit by the BOT.
Reckson submits that the plain language of the subject code provision does not limit
"recreation facilities" only to those that are owned and operated by a governmental entity,
and if the BOT had intended such a result it could have easily adopted language that would
provide for that limitation.
After reviewing the written submissions of the Appellant, Reckson, and members of
the public, considering comments heard by the ZBA at its April 2, 2013 public hearing, the
public hearing was closed on April 2, 2013. -Thereafter, following due deliberation, the ZBA
determines as follows:
The plain and unambiguous language of the subject Village Code provision permits a
private recreation facility in the OB-1 Zoning District at the discretion of the BOT, pursuant
to the procedure specified in Village Code §250-6H(1). The phrase "government buildings
and uses" is independent from the remaining language of the provision. Standing alone, the
phrase "government buildings and uses" is very broad and includes all buildings and uses of
the government without limitation of any kind. Therefore, if the intent was, as Appellant
l argues, for the phrase "government buildings and uses" to apply to limit the remaining
language of the provision (i.e. "libraries and parks and recreation facilities"), such that
"libraries and parks and recreation facilities" also must be governmental, there would be no
need to separately list these uses because they would already be included in the phrase
"government buildings and uses." If Appellant's interpretation were accepted, the words
"libraries and parks and recreation facilities" would be rendered meaningless. Therefore,
"libraries and parks and recreation facilities" must be construed by this Board to have
meaning outside of the scope of what would be encompassed by the phrase "government
buildings and uses." To limit "libraries and parks and recreation facilities" to those owned
and/or operated by a governmental entity would be inconsistent with the principle of
statutory construction that requires all words of a statute to be given meaning.
Grammatically, the phrase "government buildings and uses" does not modify
"libraries and parks and recreation facilities" due to the use of punctuation and the word
"and." If the BOT had intended to exclude private recreation facilities, the language chosen
by the BOT could have easily provided for such an interpretation by stating: "Government
buildings and uses, such as libraries and parks and recreation facilities" or "Government
buildings and uses, including libraries and parks and recreation facilities." However, the BOT
did not use such language and instead adopted the following language: "Government
buildings and uses, libraries and parks and recreation facilities."
i
1313/I2/441336v2 418/13
I
i
When read in context it also is clear that the BOT did not intend to exclude private
recreation facilities as Village Code §250-19.1 provides for other private uses permitted by
special permit, such as a "stable not used for commercial purposes," "parish house, rectory
and Sunday schools," and "child day care centers." Where the BOT intended to limit the
use it did so by use of the words "not used for commercial purposes," "serving the local area
only," and "not for profit." The BOT did not use such language in Section 250-19.1(c)(3).
Furthermore, the plain language of the subject provision does not exclude private
recreation facilities, even if "parks and recreation facilities" is considered to be a singular
phrase. The Village Parks and Recreation Department has a history of utilizing private
recreational facilities for some of its programs. Appellants' arguments that because Village
has a Parks and Recreation Department and the contents of the Village's website do not
identify the private facilities it utilizes necessarily means that "parks and recreation facilities"
excludes private recreation facilities, is unconvincing. The fact that the Village has a Parks
and Recreation Department and its website only provides information regarding parks that
are owned or operated by the Village or another governmental entity does not change the
fact that the Village utilizes private facilities for programming. What is or is not stated on
the Village's website, and whether or not the Village has a Parks and Recreation Department,
is not determinative of this Board's interpretation of the subject language of the Village
Code.
By reference to the special permit uses set forth at Section 250-19.1(c), "Government
buildings and uses, libraries and parks and recreation facilities" is incorporated as a special
permit use in every residential and commercial Zoning District in the Village, except the
Office Building and Business District (OB-S), Neighborhood Retail District (C-1) and the
Hotel District (H-1). If the subject language were interpreted to exclude private recreation
facilities, such interpretation would exclude private recreation facilities in almost every
Zoning District in the Village, except in narrow instances such as bowling alleys permitted in
the C-1 and C1-P Zoning Districts, or where they are permitted in connection with a non-
profit membership club or accessory uses. Such would be the case regardless of the size or
scope of the private recreational facility. We conclude that the BOT did not intend the
extreme and wide-reaching effect of precluding private recreational facilities in almost all
areas of the Village. Interpreting the subject language to preclude private recreation facilities
would also preclude private libraries and private parks, even though the impacts may be no
different than the impacts associated with a government facility, and in fact may be less
intrusive.
Since the use is subject to the issuance of a special permit at the discretion of the
BOT, the BOT has the authority to determine whether the use will be permitted at all, based
on its review of the applicable special permit standards set forth at Village Code §250-6(H),
including whether a proposed private recreation facility is in harmony with the appropriate
development of the zoning district in which the facility is situated and will not be detrimental
to the development of adjacent zoning districts. The BOT also has the right to limit the use
by imposing reasonable conditions to accomplish these goals. It is not the case, as the
13131121441336v2 418173
I
f
—�� Appellant suggests, that interpreting the subject language to include private recreation
facilities will necessarily permit any and all types of private recreation facilities regardless of
the size, scope or impacts. This argument is unconvincing. Instead, the provision states that
the use is permitted at the discretion of the BOT pursuant to the procedure specified in
Village Code §250-6(H)(1) (i.e. the Village's special permit procedures). The question of
whether a special permit for the proposed use will be approved and under what conditions is
within the jurisdiction of the BOT. The process for approval or disapproval of the use and
imposing reasonable conditions is one that provides appropriate safeguards against the
introduction of uses that are incompatible with the surrounding area.
Contrary to the Appellant's assertion, the legislative history of the adoption of
Section 250-19.1 of the Village Code which created the R-25 District in 2006 is not
determinative to our interpretation of the subject language. The subject language did not
first appear in the Village Code upon the adoption of the R-25 District in 2006, as Appellant
argues, nor was the subject language amended at that time. Instead, all uses previously listed
as being permitted in the R-20 District were carried over to the R-25 District when the R-25
District was created, including "Government buildings and uses, libraries and parks and
recreation facilities." Moreover, the Village of Rye Brook inherited the special permit use
from the Town of Rye Code when the Village was formed in 1982. Appellants' attempt to
use the legislative history of the adoption of R-25 District to support its interpretation is
misplaced.
In sum, the sole issue before the ZBA on this appeal is whether to affirm, reverse or
modify the Building Inspector's interpretation of Sections 250-27(c)(2) and 250-19.1(C)(3) of
the Village Code, that a private recreational facility is a use permitted at the discretion of the
BOT in the OB-1 Zoning District. We believe the Building Inspector's determination is
reasonable and supported by the clear and unambiguous language of Village of Rye Brook
Zoning Code §§250-27(c)(2) and 250-19.1(C)(3).
Accordingly, the determination of the Building Inspector is affirmed.
Dated: April--L,2013
Mr. Don Moscato, Chairman
1313/12/441336v2 4/8/13
I
I
i
3) Approval of January 15, 2013 and March 5, 2013 Zoning Board Summaries
The review of the minutes was adjourned to the next .meetin g
There being no further business before the Board, Mr. Moscato called for a motion
and second to adjourn the meeting. The roll was called:
Steven Berger Voting Aye
Andrew Kaminsky Voting Aye
Jeffrey Richman Voting Aye
Joel Simon Voting Aye
Don Moscato, Chairman Voting Aye
1 31