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ARTICLE78

ARTICLE 78

BACKGROUND

"Over many years of my architectural practice I have appeared before a number of ZBAs and architectural review boards in different communities.  Their focus was always on meeting the requirements of their code rather than being quick to grant a variance and ignore professional advice and proofs that indicated the variance was uncalled for.  Kinderhook deserves better."

--Alvin D. Knoll, Architect (Full transcript of letter is below.)

 
WHEN SUBMITTING THEIR SDEIS
WIDEWATERS APPLIED FOR A VARIANCE,
KNOWING THEY NEEDED ONE
TO PUT  A FLAT ROOF ON ACOMMERCIAL BUILDING
 UNDER THE NEW TOWN ZONING CODE .
(They originally applied under the OLD Code -
There where no architectural restrictions.)

ZBA gives Widewaters a roof design variance

SEPTEMBER 26, 2004

EGAN HAS NO PROBLEM WITH OPENING HEARING?

For those of you that managed to get a copy of the 9/25/04 Register-Star, to read the front page article on the ZBA meeting, you’ll notice that ZBA Chairman Sean Egan was reported saying that, “he was not opposed to reopening the hearing, but that it was the responsibility of the board to do so if they felt it necessary.”

 “As chair I was open (to it),” he said.” “They could have opened it. No one made a motion to reopen the hearing so we dealt with what was in front of us.” “Not entirely true,” wrote the Register-Star reporter, “Wetmore did make a motion to reopen the hearing but it was not seconded or voted on.”

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KNGG eNEWS reported yesterday:

Richard Wetmore moved to reopen the Public Hearing so new renderings could be submitted and reviewed. There were newly revised renderings by architect Alvin Knoll ready for presentation to further KNGG’s position that Widewaters could build in compliance to the code and that no variance should have been required. 

No one seconded the motion, which lead us to believe that the ZBA was telling us that it did not want to review any further evidence, no matter how relevant it could be.

SEPTEMBER 24, 2004

ZBA MAKES HASTY DETERMINATION

ZBA members present at last night’s specially called ZBA meeting were Chairman Sean Egan, Wendy Bopp, Kelly Nicoletta, James Waterhouse, Richard Wetmore, attorney Marc Gold and alternate Tom Neufeld.  Alternate Margaret Litteken was present although recused from the Widewaters application.

 

At the beginning of the meeting the findings statement, usually prepared by the developer was given to the board to read and comprehend. They were given only 20-30 minutes to digest it and understand its content and its meanings.

 

After looking at the findings, Kelly Nicolletta immediately moved to approve the variance.  Richard Wetmore questioned her jumping in and requested that he make a motion. Granted, Richard Wetmore moved to reopen the Public Hearing so the new renderings could be submitted and reviewed. Because of questions ZBA members had at the August hearing, there were new renderings by architect Alvin Knoll ready for presentation to further KNGG’s position that Widewaters could build a roof in compliance to the code over their planned footprint and that no variance was needed.

 

No one seconded the motion, which lead us to believe that the ZBA was telling us that it did not want to review any further evidence, no matter how relevant it could be.

 

A motion was made by Richard Wetmore to deny the variance. No one seconded it.

Kelly Nicoletta then moved that the variance be approved. Jim Waterhouse seconded the motion.

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Wetmore remarked, “It is the duty of the ZBA to uphold the Town Zoning Code and not approve all applications for variances. Approving too many variances will weaken the code.”

 

Nicolletta replied, "But we are a board of appeals and should be looking at appeals."

 

Wetmore responded, "A board of appeals doesn't mean that everything that comes in the door should be approved.”

 

This is why there is an application process. Otherwise there would be no ZBA. We’d  need only one person to sit in Town Hall rubber stamping variance requests.

 

Nicoletta read a statement that basically paraphrased Marco Marzocchi’s letter to the editor in Tuesday’s Independent.

 

A vote was taken, 3 –2 to approve the variance with Sean Egan, Kelly Nicoletta and James Waterhouse voting for approval. Wendy Bopp and Richard Wetmore voted against approval. 

In haste, Chairman Sean Egan, then suggested the ZBA vote on the findings statement.  We realized that in its rush to approve the variance, the ZBA neglected to discuss and vote on the findings that should have come first. In reviewing the findings statement, the ZBA’s understanding of it is supposed to help the ZBA members make their determination on the variance. In fact they put the cart before the horse and took the vote without considering the findings.

 

Usually the findings statement is presented to the planners by the developer.  The planners should be given time, at least till the next meeting, to study it. At the next meeting the planners would then rewrite the document, taking out any biased statements, anything that is not objective and add their own findings that could include statements by their unbiased retained experts. A vote should be taken by the planners to accept or deny the statement as amended. If accepted, the document then becomes the document of that board, not of the developer. In this case it should have become The Town of Kinderhook ZBA Findings Statement” It should then be the basis upon which the board makes a determination.  This did not happen .

 

Richard Wetmore brought to the attention of the chair and attorney Gold that he felt strongly that the board should have more time to study this important and complex document.  After given reasonable time (not 30 minutes as happened) the findings statement should be read aloud by the board and evaluated by board members as they go along. Wetmore questioned if it was even legal for them to “take a vote at a moment’s notice.”  Chairman Egan quipped, “Maybe you should have your own counsel to ask.” Gold apologized for the lack of time but did not offer an alternative.

 

Richard Wetmore also brought to the attention of the ZBA that the document was not objective and definitely slanted in Widewaters’ favor.  This would be expected especially if written by Widewaters. It should have been evaluated, corrected and rewritten by the ZBA in committee.    

After minimal discussion and minimal amendments, the ZBA voted to accept the findings statement with the few amendments as is.  The vote was 3-2 with Wetmore and Bopp voting against acceptance.  KNGG was not given a chance to view the findings statement before the meeting, during or after.  The ZBA approved this document although it contained factual errors.

 

So here we have a situation where the ZBA voted to approve a variance based upon a findings statement that they changed after the vote on the variance was taken. The final findings statement was not the document upon which their determination to approve the variance was based.  Their determination was based on the developer's finding statemen which Gold participated in preparing and not on the amended one. 

The ZBA then approved the “SEQRA Findings Statement” by a vote of 3 – 2 with Wetmore and Bopp voting against its acceptance.  There was no discussion of this document before a vote was taken.

In conclusion the ZBA clearly misapplied the law.  Two ZBA members, Richard Wetmore and Thomas Neufeld, actually pointed out that the ZBA was not applying the law as set down.  Self created hardship by Widewaters and other reasonable alternatives were not considered.  Jeff Baker identified numerous flaws in the decision.

 

Several times through out the hearings KNGG and members of the community had advocated the retention of an unbiased architect who's fee would ultimately be paid by the developer. This did not happen.  

 

The work of experienced architect Alvin Knolls refuted Widewaters claims which were presented by, the then unlicensed architect, Michael O’Shea who was provided by Widewaters.  O'Shea, who only  got his NYS license on August 30. 2004, has been presented by Widewaters to the ZBA since November 2003 and prior that to the Planning Board as an experienced architect.

 

The ZBA was advised on September 2nd that O’Shea was not licensed but preferred to accept his word rather than that of a licensed experienced professional. (See www.nysed.gov/coms/op001opscr2?profcd=03&plicno=030261 )

 

It was a pleasure see so many KNGG members at this ZBA meeting.  It's important that as many citizens as possible see how these boards operate. 

Allen Schaefer
 
ALVIN D. KNOLL, ARCHITECT/BUILDER/DEVELOPER

 106 McCagg Road    Valatie, New York 12184    518.392.2659    Fax 518.392.9732

October 14,  2004

At a special meeting of the Kinderhook Zoning Board of Appeals 9/23/04 a variance to build a flat roof over a 47,000 foot Hannaford supermarket with an attached 15,000 square foot group of retail stores was granted by a 3 to 2 vote of the ZBA.  I had presented to the ZBA three different roof designs to prove that a complying pitched roof over this structure could be built and therefore a variance should not be granted.  

Unfortunately, the ZBA was willing to accept the Widewaters attorney’s position that my final designs should not be admitted for consideration before the board since statements by the public were no longer to be heard.  So rather than discuss and evaluate the merits and delve into the unsubstantiated claims of the applicant, to the detriment of Kinderhook and the validity of its new code, the ZBA granted a zoning variance for the flat roof with the rationale that a complying pitch roof would not be practical..

They chose to ignore the statements of the engineer retained by the Town that my initial pitched roof design complied with the code and they refused to examine the later submissions that I proposed that responded to the personal objections of some of the ZBA members. These later designs were sent to the ZBA members and one of these designs was published in The Independent. prior to 9/23/04 meeting.     

The ZBA majority was willing to uncritically accept gross misrepresentations by representatives of Widewaters, such as those demonstrated in the letter published in The Independent 9/21/04, written by Marco Marzocchi, one of the attorneys representing Widewaters.  In that letter he stated that the reduced cupola in one of my designs would require a variance --- it simply does not.  What does require a variance, however, are the four non-complying gables on the Widewaters submission --- one over the Hannaford main entry and three at the attached stores.  These gables are all at an approximately 5/12 pitch --- 8/12 minimum pitch is required.   These non-compliances, which also require a variance have been ignored by the ZBA, they should not be ignored.  

Mr. Marzocchi stated that my designs are “unsuitable” for Hannaford.  My designs are entirely in keeping with supermarket design as built by the Valatie Grand Union, the Chatham Price Chopper and the Dewitt Wegmans.  I examined the architectural and structural plans filed with the Town for the Valatie Grand Union and made copies of sections through the Grand Union building.  I provided a copy of the plan of the Grand Union building to compare the similarities of that building with my designs.  The Grand Union ceiling heights at their perimeter areas are 11 feet.  These comparisons were attached and available for the 9/23/04 special meeting of the ZBA.  Since my design is “suitable” for Grand Union, Price Chopper and Wegman s– it is suitable for Hannaford. 

Possibly the most blatant example of Mr. Marzocchi’s false statements is his lengthy exhortation of the benefits of the “traditional mansard roof” over the Hannaford store that he states is proposed by Widewaters and how it is in keeping with Kinderhook’s historic heritage.  However, since there is no mansard roof over the Hannaford store, his argument was total nonsense.  The Hannaford store has a flat roof and two gable roofs.  The attached retail stores have a partial hip roof at their perimeter and a non-complying flat roof over the major part of the stores. 

Over many years of my architectural practice I have appeared before a number of ZBAs and architectural review boards in different communities.  Their focus was always on meeting the requirements of their code rather than being quick to grant a variance and ignore professional advice and proofs that indicated the variance was uncalled for.  Kinderhook deserves better. 

Alvin D. Knoll, ArchitectValatie NY 12184

To see renderings by architect Alvin Knoll,

In the MENU to your LEFT,Click on  "KNGG Renderings."    

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A Brief Summary of Widewaters' Variance
Application Proceedings
 

Originally, in November of 2001, Widewaters applied to the Planning Board under the “old” code.  Under the old code, the plot was divided in two parts.  Approximately ½ of the land located nearest to Route NY 9H was zoned B-1 (business).  The remainder of the plot was zoned A/R (agricultural/residential). 

 

Widewaters wanted to place their buildings in the B-1 (business) Zone.  Yet, they wanted to place their septic system in the A/R (agricultural/residential) Zone.  Under the old code there were no architectural restrictions and the Widewaters could have built their buildings as originally designed.

 

Once it was determined that Widewaters would have to place their septic system in the B-1 Zone with their buildings and not in AR Zone, on October 3, 2002, Widewaters attorney Lisa DiPoala-Haber announced to the ZBA that Widewaters would be judged under the “new” code.

 

However, under the new code, there are architectural restrictions that would apply, such as the type of roof design permitted.  Under the new code, no flat roofs are allowed.  The new code requires “traditional” buildings.  Traditional architecture (described as pre 1940) is the spirit of the new code.

 

Under the new code, the entire property became a B-1 Zone, which would allow Widewaters to place their septic system where they originally planned, in the area previously designated as an A/R Zone.

 

Widewaters has voluntarily chosen to be reviewed under a code that has architectural restrictions.  Widewaters knew this when they decided to change to the new code.  Yet they then returned to the Planning Board with the same old plans in hand knowing they would need a variance to build this big box with a flat roof.  This is not a hardship.  It is a self-inflicted hardship.

 

Widewaters came back to the Planning Board with the same big box footprint with the same flat roof only to complain they cannot build a roof in compliance the new code without going up eight stories.  They were told by the Planning Board to go to the ZBA for an area variance, which they already knew.

 

In November of 2003, KNGG submitted plans by architect Alvin Knoll to the ZBA, showing that a traditional roof could be built for their original footprint and would rise to an acceptable height but not eight stories.

However, if Widewaters does not wish to follow Mr. Knoll’s suggestion, there are other ways a traditional roof could be designed for a building of 67,000 sq. ft. that would be in compliance to the code. 

 

It simply needed to be looked at and thought out by an architect that is willing to do more than cut and paste designs of previously designed buildings. We now know that the architect, Michael O'Shea was not licensed at the time.  He earned his license on August 30, 2004.

 

One of the problems we see with the big box is its massive structure.  This structure can be broken up into smaller visual areas.  Hannaford has built other acceptable buildings in other locations.  Why does Widewaters insist it cannot be done in Kinderhook?  Could it be that Widewaters is a big box developer doesn’t want it to leak out that they can really put up more acceptable buildings?  Could it be that they just don’t want to invest money in a more acceptable building for Kinderhook and in the long run, for themselves?

 

We only recently were advised by Marco Marzocchi, general council for Widewaters, that Hannaford will own the building that Widewaters builds for them in this shopping mall. Hannaford will lease the land their building will sit on from Widewaters.

 

SINCE THEY WILL OWN THE BUILDING, HANNAFORD HAS A LARGER STAKE AND SAY IN THE ARCHITECTURE THAN WE WERE PREVIOUSLY INFORMED.  THEY HAD PROBMEMS IN REDHOOK, BUT MANAGED A FAIRLY GOOD COMPROMISE WITH THAT VILLAGE. WHY NOT IN KINDERHOOK?

 

Widewaters came to Kinderhook well aware of our two codes.  They have not proved that they cannot put up their big box design with a traditional roof that would be in compliance with our new code.  They cannot cry hardship because they choose to build under the new code.  When there were no restrictions, they applied under the old code.  Widewaters should comply with the new code.  After all, it was their choice.  This variance should have been denied.

 

We must stop and think seriously about precedence.  For instance, let’s say Widewaters returns next year with an application for a Wal-mart and/or a Home Depot. Once again, the Planning Board will say, “Sorry, you need variances for these flat roofs.”  So Widewaters comes to the ZBA, again asking for variances for two more flat roofs for big boxes.  Widewaters will cite the September 23, 2004 ZBA determination.  And so will every other big box developer.  It will too late for the ZBA to think about precedence. By doing this, they are rewriting our code.

 

Widewaters or any other exploiter will remind the ZBA what the ZBA gave to Widewaters for Hannaford.  The ZBA will be asked, “What is the difference?”  This mistake should not be allowed to take place. Otherwise everyone else in line will expect the same treatment and Kinderhook will end up looking like Fairview Avenue and other similar locations cluttered by sprawl.

 

For these reasons, the ZBA needed to entertain the spirit of the new code and deny this variance.

At a special meeting on September 23, 2004, set up between Widewaters and the ZBA especially  for the ZBA to make its determination, the ZBA approved the varianvce in a 3 to 2 vote.

 

  A SUMMARY of the FIRST ZBA HEARING

NOVEMBER 17, 2003

Three local architects worked closely with KNGG to demonstrate to the ZBA that Widewaters' affidavits and overstated drawings showing that Widewaters would have to build an eight story building to comply with the roof pitch regulations in the Town Code was nothing more than a bluff.Widewaters had hoped that the ZBA would grant a variance on this submission.

Widewaters attorney Bob Alessi opened the ZBA Public Hearing presenting Widewaters case.  KNGG attorney Jeff Baker was at his usual high standard. Baker stated KNGG's case very well. 

Of the three local architects, Kate Johns of North Chatham wrote comments explaining how different types of traditional architecture could be incorporated that could use the same foot print (ground area) Widewaters proposed but showed that no eight story building was required to comply with the code.  She pointed out to the ZBA how important it was for them not to grant the variance as it would set a precedent for future development.  This decision would determine how Kinderhook would look in the future.
 
Preservation Architect Marilyn Kaplan spoke of her part in the writing of the Comprehensive Plan and how she came up with the numbers in the roof pitch regulations.  Marilyn also explained how the planned building could comply with the roof pitch in the code without building an eight story building.  Marilyn also stressed how this important this decision would reflect in the future look of Kinderhook.
 
Architect Alvin Knoll wrote a simple one page letter which he read to the ZBA.  Knoll proved that "one picture is a thousand words"  by accompaning his letter with two drawings that were to scale.  Drawing one showed the buildings as if they were Greek Revival in nature with a "hip" roof and cupolas.  Stunning!  Drawing two showed the roof design as one looks down upon it.  Something all the Widewaters drawings lacked.  One could see the ZBA was impressed.  Several members asked questions of Mr Knoll.
 
KNGG Treasurer Mark Litteken made some excellent points about precedence and  results that could effect the Town. He also spoke up about letters one member of the ZBA wrote in the press favoring the roundabout and that this implied that the member favored the Widewaters project.  Mark strongly suggested that the member "recuse themself."
 
"I wrote the letters in question," confessed ZBA member Kelly Nicoletta.  "I wrote about the roundabout because I have traveled in Massachusetts where a traffic circle was in question.  I feel that it works there.  That's all.  I am impartial and I can make a fair decision. ROUNDABOUT!  Massachusetts!  That's is!  Mr. Knoll's drawings remind me of traditional buildings throughout Massachusetts!"  Kelly held up Al Knoll's drawing to Marco Marzocchi of Widewaters and his attorney Robert Alessi and remarked, "I think if you build this building or a similar one, we could be satisfied."
 
In his closing comments, Robert Alessi pointed out that Marco Marzocchi and he were impressed by Alvin Knoll's drawings and "would look into them and get back to the ZBA."
 
Jeff Baker was allowed closing comments as well. He explained to the ZBA their role in this matter and how very important their decision would be to the future of Kinderhook.
 
No determination was made by the ZBA.  According to SEQRA (State Environmental Quality Review Act) it cannot be made until Widewaters submits the FEIS (Final Environmental Impact Statement)to the Planning Board and gets site plan approval.
 
 
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