Woodstock planners, by 4-3, deny permit to build in Scenic Overlay

The Woodstock Planning Board declined to approve a Special Use Permit (SUP) to build a house and other structures in Lake Hill in the protected Scenic Overlay District amid criticism over what many believe was unlawful clearcutting. Some elected officials continued to urge the Planning Board to require more mitigation.

“Our household contains several environmental activists and we are so in love with our new property especially because of the mountains views and its trees, said Marc and Hariette de Swaan Arons in a written statement read by architect Brad Will, who represented them before the Planning Board at the November 4 meeting where a public hearing was reopened on the Valley View Way application. “Cutting down live trees is therefore a big no-no for us.” 

But that wasn’t enough to sway Planning Board members.

“I will not vote in favor unless there is clear language for mitigation,” Planning Board member Judith Kerman said.

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“There’s no mitigation because there’s no violation. There has to be a violation submitted by the Building Department and then they would ask for a mitigation,” Planning Board chairman Peter Cross argued.

“It also says mitigate visual impact,” Kerman responded.

“Well, they are. They moved the building back from the ledge. It’s all stone faced. They’re leaving the trees that are there in front. (Vice chairman) Stuart (Lipkind) and I took a look. There’s a whole wall of trees right in front that block the building. What else can you possibly do?” Cross asked.

“You can plant additional trees,” Kerman responded.

“You can ask them to plant 100 trees. We have cases coming before us that are totally clear cut. Who’s going to monitor and take care of those trees until they’re 30 feet tall? The planning board? Building department? Who’s going to take care of those trees,” Cross said. “Who’s going to be in charge? Who wants to volunteer to watch those trees grow for the next 30 years?”

Kerman ultimately voted to move the application forward since more restrictions could be written into the formal resolution, but even that motion failed 4-3.

Cross and Lipkind were the only others voting “Yes.” John LaValle, Conor Wenk, Brian Normoyle and James Conrad voted against the motion.

“Well, just like what’s going to happen with the rest of the scenic overlay cases, they’re going to get denied and they’re going to go to the ZBA (Zoning Board of Appeals to seek a variance) and it’s going to be up to them. We just kicked it down the road to the ZBA,” Cross said.

Lack of legal budget cited

“I think the reason I voted Nay is because the way in which we deal with these things is defective,” LaValle said. “And we have not had good advice. We’ve attempted to do so and been denied, and for one, I’m very, very concerned about where we’re going. We need to have a broad look at what we’re doing when it comes to Scenic Overlay and to some degree floodway and to establish some sort of policy that would be incorporated, and hopefully made into law by the Town Board so that we would be able to enforce something that made sense.”

Cross agreed that the system is flawed. “And I totally agree that we really have to look at every case in the scenic overlay with a different set of guidelines for the future. I absolutely agree,” he said. “I just don’t think you can stop this applicant midstream until you come together with a concerted way of doing things.”

Cross suggested the Planning Board not accept any more applications in the Scenic Overlay district until a scheduled December 16 discussion about the regulations.

“I love the idea, Peter. This has been festering for decades,” LaValle said. “Yeah, I’m sorry that you happen to be the case that this falls on,” he said to Will, who was shaking his head. “I’m sorry for you and your applicants, but this has been festering and it’s just…It comes to a head. That’s it. The town has got to rectify the situation. And it requires more than a Planning Board with zero enforcement capability.”

LaValle took the opportunity to raise the issue of a lack of legal consultation funding and asked Councilman-elect Bennet Ratcliff, who was on the call, to work to restore the funding. “Until about two years ago, the Planning Board could, if it had questions…call the Planning Board attorney because we had money in our budget,” he said. “The town supervisor decided to zero out our lines or any kind of legal assistance and with the excuse that we could simply ask him, describe the problem, and therefore then he would decide whether or not we could have that legal assistance. It is an additional bump in the road,” he added. “So maybe you as a board member on January 1 can put the money back in our line and we could actually have the advice of a Planning Board attorney who specializes in these kinds of issues prior to us making a decision. It would be very welcome. Thank you.”

When asked about this practice, Supervisor Bill McKenna confirmed the lines were zeroed out and it happened several years ago as a sort of a check-and-balance. The money is in the budget, but it is on a different line. “All departments have to come to me before they speak to an attorney. The Town Board can’t just go speaking to an attorney either,” he said. McKenna gave assurances the money is there. All the Planning Board has to do is say they need to speak to an attorney for an issue not relating to a specific case.

Individual applicants are required to pay money into an escrow account that is used for legal fees for a particular case before the Planning Board.

Cutting predated purchase, owners say

The de Swaan Arons’ who have lived in Woodstock for 16 years, bought the land in August 2020 to build a home a family home for the couple and their three children, ages 17, 15 and 13. The property, when purchased, had an existing logging road and two large clearings, they said.

“The property was strewn with hundreds of fallen and standing dead trees that made walking the land almost impossible and unsafe,” they said in the statement. “In the fall of 2020, we commissioned a tree company to remove the fallen dead and standing dead trees from the parts of our land that we required access to — about two of the total 25 acres.”

The de Swaan Arons’ emphasized only three live trees were removed since they took ownership and those were taken in order to improve performance of a planned solar array. “We need to stress again that we did not cut down any additional live trees,” they said. “We did prune or top a layer of trees a little lower down on our property so that we can now see out into the valley above them. Over the last six months, almost all of the trees that were pruned have developed fresh green canopies at their tops.”

By January 2021, the Building Department informed them a neighbor had complained to the New York City Department of Environmental Protection (DEP) that they were clearing trees.

“In response to this news, we met at the end of February 2021 with the Woodstock Building Department and the NYC DEP to review precisely what we were doing on the land and to assure them that no live trees were being cut. The DEP subsequently visited the property and was satisfied that we were not doing anything untoward,” the de Swaan Arons’ said. They added they met with the neighbor and showed him only three live trees were cut. 

In response to the neighbor’s request that he not be able to see their house, the de Swaan Arons’ said they have adapted the design by moving the house as far back from the ledge as possible. “We hope that you will approve our building SUP (special use permit) application as we believe that we have followed all rules and regulations and we very much would like to start building our family home. We are committed to act as good neighbors and custodians of this beautiful land we now own.”

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Public hearing rushed

Cross had rushed through the public hearing, saying the board only had 10 minutes before it had to move onto the next case, but many people wanted to speak.

“All I ask is that they do some mitigation, that you ask for the SUP for some trees, not 30 feet today, but trees that are eight to 12 feet,” Councilwoman Laura Ricci said.

“Minimal tree cutting. That’s the code,” Cross responded.

“Laura, if there needs to be changes, it’s up to the Town Board to make changes in that code. The code says minimum. Minimum.”

But Ricci argued the board can use its discretion.

“You have the purview to say trees ought to be here because it will help a scenic overlay. That’s my opinion, you can disagree,” she said.

Ratcliff said the Planning Board is within its authority to deny the permit based on language in the Scenic Overlay law.

“The proposed development shall include the following measures…The prohibition of development along and/or projecting above the ridge line and the discouragement of development at other visually prominent locations so that the development is as visually inconspicuous as possible when seen from a distance and from lower altitudes,” he quoted from the law. Behind him was an image of the tree line cut as seen from Cooper Lake Road.

“It is the purview of the Planning Board to deny this permit for that exact reason. It is a reason that is in the Scenic Overlay code unless, of course, you believe that you cannot see this from a distance.”

Planning Board member Conor Wenk questioned why a member of the Tree Committee could not inspect the property since the panel had consulted with the board in the past. “I would like to either have an invitation extended, or a clear reason submitted for why in good faith, we cannot bring the people that we rely on in these cases for expertise to look at this place,” he said.

What’s done is done

“I would just make an observation that no matter how this board ultimately decides this application, the cutting will still have the effect that the cutting will still be there,” Lipkind said. “We are not a punitive body…We’re not a court. We don’t we don’t fine people. We don’t issue injunctions and so on. We’re a planning body, and so and this whole situation has been brought to us with a fait accompli in terms of the trimming of the tops of those trees that has raised such an issue in this manner.”

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