Minutes - Board
Meeting 1/14/09
Minutes of the meeting of the Board of Trustees of
the Incorporated Village of Mineola held Wednesday, January 14, 2009 at Village
Hall,
PRESENT:
Trustee
Trustee
Trustee
ALSO PRESENT:
Village Attorney
Village Clerk
Sunshine Observers: Approximately 4 Observers
Mayor Martins called the Work Session to order at 7:00
pm.
Resolution No. 13-09
Resolved to approve bills and
payroll.
Motioned by Trustee
Seconded by Trustee
Vote:
Yes No Abstain
Trustee
Trustee
Trustee
Resolution No. 14-09
Resolved to approve the
minutes of the meetings of the Board of Trustees of December 17, 2008 and
January 7, 2009.
Motioned by Trustee
Seconded by Trustee
Vote:
Yes No Abstain
Trustee
Trustee
Trustee
Resolution No. 15-09
Resolved to approve the
recommendation of the Community Development Coordinator,
Motioned by Trustee
Seconded by Trustee
Vote:
Yes No Abstain
Trustee
Trustee
Trustee
Resolution No. 16-09
Resolved to instruct the
Village Treasurer to solicit proposals for consulting services for Governmental
Accounting Standards Board 45 (GASB45) compliance.
Motioned by Trustee
Seconded by Trustee
Vote:
Yes No Abstain
Trustee
Trustee
Trustee
Resolution No. 17-09
Resolved to authorize 2008/09
Budget line transfers.
|
Account |
Account |
Amount |
|
|
Name |
Number |
Increase |
Decrease |
|
|
|
|
|
|
|
|
|
|
|
Medical & Fitness |
413-00 |
|
1200.00 |
|
Supplies - Miscellaneous |
406-18 |
1200.00 |
|
|
|
|
|
|
|
|
TOTALS |
1200.00 |
1200.00 |
Motioned by Trustee
Seconded by Trustee
Vote:
Yes No Abstain
Trustee
Trustee
Trustee
Resolution No. 18-09
Resolved to authorize a
monthly benefit payout of $440.00 from the Fire Service Award Fund to Mineola
Fire Department volunteer firefighter Lawrence R. Ueland pursuant to the Length
of Service Awards Program (LOSAP).
Motioned by Trustee
Seconded by Trustee
Vote:
Yes
No Abstain
Trustee
Trustee
Trustee
Resolution No. 19-09
Resolved to approve a contract
for $28,000.00 with General Code Publishers for recodification of the Village
Municipal Code.
Motioned by Trustee
Seconded by Trustee
Vote:
Yes No Abstain
Trustee
Trustee
Trustee
Resolution No.20-09
Approval of Great Neck Games
zoning application.
BOARD OF TRUSTEES
INCORPORATED
DECISION
APPLICATION OF
WHEREAS, EDWARD W. DICKMAN (“Applicant”) has made an application to the Board of Trustees of the Incorporated Village of Mineola (the “Board”) for approval of a certain site plan for the construction of a fireproof addition of 4,410 square feet attached to an existing building (the “Project”) at the premises known as 275 Jericho Turnpike, Mineola, New York 11501 (known and designated on the Nassau County Land and Tax Map as Section 9 Block 391 Lots p/o 11-17) (the "Property"), pursuant to Section 30-A.6 of the Mineola Municipal Code; and
WHEREAS, the Board has conducted a public hearing concerning the instant application and has received public comment thereon; and
WHEREAS, the application was referred to the Nassau County Planning Commission; and
WHEREAS,
the Applicant appeared before the
Village’s Zoning Board of Appeals and was granted the required variance for the
construction of the Project;
WHEREAS, the Applicant appeared before the Village’s
Planning Board and was granted preliminary site plan approval pursuant to
Section 30-A.5;
WHEREAS, the Applicant appeared before the Village’s
Architectural Review Board and was granted approval; and
WHEREAS, the Board finds that the proposed application, subject to strict adherence to the conditions noted below will promote the Village’s specific physical, cultural and social policies in accordance with the Village’s comprehensive plan and in coordination with community planning mechanisms and land use techniques. Further, it is hereby determined that
the application will provide a desirable building to the area, will eliminate on-street loading and unloading of materials and will not be incongruous to the neighborhood by reason of excessive traffic.
NOW, THEREFORE, BE IT RESOLVED
that the application of
1. All loading, unloading and parking of vehicles in connection with the business located at the property shall be performed solely within the property’s interior and not on any street or sidewalk;
2. The condition set forth in this Decision is material to the approval granted by the Board of Trustees. Violations of the condition after reasonable notice and failure to cure shall subject Applicant or its successors to enforcement proceedings pursuant to the Mineola Municipal Code;
3. The representations made by Applicant on the record in this proceeding have been deemed material to this application and have been relied upon by the Board of Trustees in its deliberations and decisions. Said representations are deemed to be part of the conditions of this approval;
4. Violation of a condition set forth in this Decision shall be deemed a violation of the Village Zoning Law and shall subject Applicant or its successors to all penalties set forth in the Zoning Law; and
5. Applicant shall acknowledge that the conditions set forth in this decision are reasonable, fair and equitable. In the event that any legal action or proceeding shall be instituted by the Village in order to enforce any condition herein, the Village shall be entitled to an award of attorney’s fees in the event that it shall prevail in any such action or proceeding.
This document constitutes the Decision of the Board of Trustees of the Incorporated Village of Mineola.
Motioned by Trustee
Seconded by Trustee
Vote:
Yes No Abstain
Trustee
Trustee
Trustee
Village attorney,
MEMORANDUM
To:
Incorporated
From:
Re:
Letter
of
Date: January 13, 2009
You have requested that I review the status and validity of
certain comments made by
In preparation of this response, I reviewed the Village’s
files concerning
1. Building Height. It is asserted that the height of the new building constructed at 217 Horton Highway exceeds the maximum height (32 feet) permitted by the Village’s Code in that it “actually measures 35 feet”. Section 30.5 of the Village’s Code is cited as requiring that building height be measured from curb level.
While the Village’s Code definition of building height references a measurement from curb level to the highest point of the gable, this provision is at odds with Section R 202 of the Residential Code of New York State. The State Code bases height measurement from the grade or grade plane immediately surrounding the foundation walls or, where there is a drop-off in grade, from the property line but no further than six (6’) feet from the foundation walls. The Village’s Code also recognizes situations where no curb level has been established and measures height “from the mean natural level of the ground immediately adjacent to the base of the building.” This latter form of measurement in the Village’s Code is almost identical to that of the State Code.
In any event, based upon principles of pre-emption, the Village has for years measured building height from the mean natural level of the ground immediately adjacent to the base of the building. That same form of measurement is what has been utilized in this instance.
A question has arisen as to whether the mean natural grade level has been changed at the base of the building. In discussing this matter with the Village’s Building Official (who, in Mineola is titled Superintendent of the Building Department), there is no evidence that the grade of this property has been manipulated in order to allow for a building height in excess of that which would have been applicable to the prior building at the site.
When building plans are submitted to the Village, they are subjected to many categories of review, including building height. It is the obligation of the architect and of the contractor to make sure that the plans are properly implemented once they are approved. The approved plans in this instance call for a 32’ building height.
As is the practice of the Village, once a final inspection is requested, the Village will measure the final height of the building to make sure that it conforms to Code and to the approved plans.
The bottom line, however, is that the Building Department’s method of building height measurement is appropriate.
2. Basement Windows. It is asserted that on the south side of the property “4-5 foot deep basement windows were installed which are not on the original plans”. I reviewed the original as well as all subsequently amended plans with the Building Official. There are no “4-5 foot deep basement windows” on the plans. An inspection of the property shows that there are no “4-5 foot deep basement windows” that have been built.
The bottom line is that the basement windows which have been installed are permissible.
3. Window Grates. It is asserted that there are “subway-type grating” covering these windows and that these gratings required a variance which has not been obtained. It is also asserted that window wells servicing these windows are “permitted as an egress” but that egress should not be an issue since the original plans call for an unfinished basement with an outside cement staircase for egress.
An inspection of the premises shows that the originally approved cellar-type windows have been constructed and, since they are below grade, they sit in window wells. Since the wells adjoin the area leading to the rear of the property, they have been covered with a grate for safety purposes. The window wells are not a form of egress. One of them surrounds a venting system. The other surrounds two small windows. No variance is required for these window wells since they fall within the side yard variance dimensions previously established by the Village’s Zoning Board of Appeals.
The plans for the basement have been subsequently modified to create a finished basement with a recreation room, but no sleeping quarters have been created.
The bottom line is that the basement window wells are permissible.
4. Cement Staircase. It is asserted that “the cement staircase on the south side of the premises is not in accordance with the NYS Building Code” in that it must be located “10 feet away from the property line”. In this instance, the Village’s Code applies. Minimum side-yard setbacks in the subject zoning district are six (6’) feet on each side of the property with an aggregate of fourteen (14’) feet. With respect to the south side of the building, the Village’s Zoning Board of Appeals has already granted a variance of two (2’) feet, thus permitting the staircase to be located within four (4’) feet of the property line, which it is.
The bottom line is that, based upon the variance, the cement staircase is permissible.
5. Fences. It is asserted that the fences on the north and south sides of the property are not to code in that they exceed the height requirements of Section 30.61 of the Village’s Code as a result of being “installed on top of a 14”+/- wall, which raises the height over code”.
Section 30.61 of the Code permits a fence of up to four (4’) feet in height along the side property line from the front building line to the rear building line and a fence of up to six (6’) feet in height along the side property line from the rear building line to the rear property line. The Building Official advises that fence height is measured from interior property grade. An inspection of the property reveals that no fence is out of compliance with the Village’s Code.
The bottom line is that there is no violation of the Village’s fence law at this property.
6. Expiration of Building Permits. It is asserted that, “[a]ccording to Section 26.35 of the Village’s Code, “all building permits expire 6 months after date of issuance” and that no extensions were on file post April of 2007. It is further asserted that “[t]here should now be three extensions for this permit”. Finally, it is asked what constitutes “good cause” for the granting of a permit extension.
Section 26.35 of the Village’s Code was drafted by me and was added to the Village Code in 1992. At that time there were several sites in the Village where construction projects had begun but where the sites were virtually abandoned in unfinished condition for lengthy periods of time and, in some instances, for more than a year. The goal of Section 26.35 is to make sure that construction, once begun, continues to completion.
I have consulted with the Building Official concerning the Village’s policy with respect to extending building permits. He has advised that he only seeks approval from the Board of Trustees for building permit extensions when there are special circumstances or hardships which prevent a resident from moving forward with construction. Illness, loss of a contractor, unemployment, death of a spouse have all been grounds for considering extensions.
Where a building permit has been
issued and where construction is actually progressing, it is not the policy or
practice of the Building Department to require extensions of permits. Many projects will have an anticipated
construction time beyond six (6) months based upon their very nature. Projects such as CVS,
With respect to what constitutes “good cause” for the extension of a permit when the Building Official directs that one is required, such is within the discretion of the Board of Trustees in each instance.
7. Property Grade. A question is asked as to what the regulations are in the Village’s Code concerning the raising of a resident’s property grade.
The answer is that the Code is silent on the matter. In any event, a review of the subject property’s history shows that the grade at the site was quite varied. There is at least a two (2’) foot elevation from the sidewalk line to the building line. The property grade did slant in the rear yard and on the southern side yard.
In
response to complaints by the neighbor to the south, the Building Official
requested that the owner of
8. Code Enforcement. A question is asked as to who is responsible for ensuring that the Village Code is adhered to.
The answer is that the Building Official of the Village has that responsibility.
9. Amending Plans. A question is asked as to who is responsible for signing off on any changes to plans.
The answer is that the Building Official of the Village has that responsibility, just as he has the responsibility for approving the original plans.
10. Inspections. A question is asked as to where building
inspection notations are concerning
Section 26.39 (A) of the Village’s Code deals with inspections. It reads as follows:
“Work for which a building permit has been issued under this Article shall be inspected for approval prior to enclosing or covering any portion thereof and upon completion of each stage of construction, including but not limited to, building location, site preparation, excavation, foundation, framing, superstructure, electrical, plumbing, and heating and air conditioning. It shall be the responsibility of the owner, applicant, or his or her agent to inform the Enforcement Officer that the work is ready for inspection and to schedule such inspection.”
Nowhere in the Code is there a requirement that inspection notations be maintained in the file for any premises.
I have reviewed the procedures of the Building Department with respect to inspections and can advise that a hard-stock inspection log exists for each building project. Inspection reports are not in the individual files since it has been the experience of the Department that these sometimes disappear.
The hard-stock
log for
The bottom line is that appropriate inspections of this project have been undertaken and continue by the Village’s Building Department.
11. Sanitation
Service. It is asserted that the
Village is picking up building construction debris from
Section 72.35 of the Village’s Code states the following: “Rubbish from building construction, alteration or repair or from contract operations on the premises will not be collected.”
The purpose of this Section of the Code is to require contractors to use dumpsters serviced by private carters for major construction projects. With respect to “do-it-yourself” work by residents, the Code does provide for the pick-up of rubbish (including boxes, wood, disposable containers, packing crates and similar matter) which is appropriately bundled and which does not exceed seventy five (75 lbs.) pounds per pick-up.
The
owner of
12. Saw-cutting
encroachments. It is asserted that
the Village’s Building Department somehow did not do its job since it did not
issue a summons to the owner of
First of all, the cited survey notation was placed upon the survey as a disclaimer by the surveyor who prepared it. It was not added by the Village’s Building Department. Its actual purpose and full meaning is unknown. It represents a private matter between the surveyor and the person who purchased the survey. It has no effect upon Village review or approval procedures.
Secondly,
it was conceded by the owner of
13. Starting Time for Construction. It was additionally raised at the January 7, 2009 Village Board meeting that the owner of 217 Horton Highway violated the Village’s starting time regulation for construction on numerous occasions and that he had been issued a summons for one of these violations.
The fact of the matter is that there is no starting time regulation in the Village’s Code with respect to general construction. The only starting time limitation in the Code is with reference to licensed gardeners and landscapers (Section 15.47 (H) (iii)), which sets an 8:00 a.m. starting time on any day.
I
understand that the Village’s Building Department, in an effort to appease the
owner of 215 Horton Highway with respect to his objection to pre-8:00 a.m.
construction and in response to complaints by that owner, actually issued the
owner of 217 Horton Highway a summons based upon Section 15.47 of the Village’s
Code. In an effort to work cooperatively
with the Village, the owner of
The fact of the matter is that the summons should never have been issued. There was never any violation of Section 15.47. That section applied only to licensed gardeners and landscapers.
14. Illegal
Occupancy. It was raised at the
January 7, 2009 meeting of the Village’s Board of Trustees that the owner of
15. Sprinkler
System. It was further raised at the
January 7, 2009 meeting that a representative of the Mineola Volunteer Fire
Department had reviewed the constructed premises at
The fact of the matter is that the Mineola Volunteer Fire Department has absolutely no jurisdiction in the Village with respect to construction oversight. Any firefighter who may have represented himself to have had any authority in this connection acted well outside the regulations of the Fire Department.
When
the owner of
16. General
Considerations.
I would
like to take just a moment to speak about the manner in which building permit
applications are handled in
Under
If a building permit is denied due to the fact that the proposed construction is not in conformity with the Village’s Zoning Code, the applicant has the right to appeal to the Village’s Zoning Board of Appeals. The Zoning Board has the jurisdiction to confirm, modify or reverse the decision or opinion of the Building Official. Appeals must be brought within sixty (60) days of the decision or interpretation being appealed.
In many instances, an applicant aggrieved by a decision of the Building Official with respect to his application of or interpretation of the Village’s Zoning Code will seek a variance from the Zoning Board of Appeals. This often happens with respect to regulations governing height, setbacks, lot coverage, lot size, parking and the like. If the variance is denied, the applicant may appeal the decision of the Zoning Board to the New York State Supreme Court. If the variance is granted, any other person aggrieved by the decision may also appeal it to the Supreme Court. By word of caution, however, it should be noted that the appeal must be taken within thirty (30) days from the date the decision of the Zoning Board is filed with the Village.
If the Building Official turns down an application based upon the New York State Uniform Fire Prevention and Building Code or any other applicable State code, the applicant may seek a variance from the Division of Code Enforcement and Administration of the New York State Department of State.
Not all matters affecting a person’s residence involve the Village in a legal sense. Many issues which affect adjoining property owners are private matters which must be handled by the parties through the legal system. Situations which involve trespass or disturbance of the peace, for example, are not handled through Village departments.
In the
instant case, the owner of 217
The Building Official also disapproved the application for a building permit because the construction contemplated required approval of the Village’s Architectural Review Board. After an application submitted by the property owner and after a public hearing on the matter, approval of the architectural design was granted by the Board. The Board found that the proposed building would “not be visually offensive or inappropriate, nor impair the use, enjoyment or desirability of an area nor be detrimental to the character of the neighborhood”.
Neither the decision of the Zoning Board of Appeals nor the decision of the Architectural Review Board was challenged.
Based
upon the nature of the application by the owner of
Conclusion.
The Village’s Municipal Code and
the laws of
Respectfully submitted,
/ S /
Village Attorney
MEMORANDUM
To:
Incorporated
From:
Village Attorney
Re:
Fence Permit No. 21533 (May 10, 2006)
Date: January 13, 2009
You have requested that I examine, based upon the public complaint of a resident, the circumstances surrounding the issuance of the above-referenced fence permit by the Village’s Building Department.
The subject premises,
The application for
I met with the Village’s Building Official and reviewed the
procedures and practices of the Building Department in granting or denying
fence permits. Under ordinary
circumstances, when an applicant is replacing an existing fence in kind, the
Building Department does not require a fence permit. However, since the replacement of the fence
at
A search of the Building Department’s file did not reveal evidence of a permit for the original fence. The house itself goes back to at least 1947 and it is unclear what the fence permit policy of the Village was more than 60 years ago. The original fence may be completely legitimate; it may not. Thus, there may or may not have been a right to replace it.
Since there is uncertainty about this matter, the Building Official has written a letter to the current property owner requesting a conference concerning the fence. The issues affecting the current fence can then be discussed and, if necessary, further action may be taken. The Village’s Code does provide at Section 26.37 (2) that a permit may be revoked where the Building Official “finds that the building permit was issued in error and should not have been issued in accordance with the applicable law”.
Naturally, if it should be determined that an error has been made in the issuance of the 2006 fence permit by the Building Department, the property owner will have the ability to take the matter to the Village’s Zoning Board of Appeals in hopes of receiving a variance. Further, since the fence law has recently been amended, it is possible that a minor relocation of the fence could bring it into compliance.
In any event, the matter is still under investigation and the property owner will be afforded every opportunity to address the issues raised by the complaining resident.
Motioned by Trustee
Seconded by Trustee
Vote:
Yes No Abstain
Trustee
Trustee
Trustee