Jurisdiction, required use of drone photography for applicants and clarifying what constitutes clearcutting were among topics as the Woodstock Planning Board further discussed changes to the Scenic Overlay District regulations at its January 20 meeting. The Scenic Overlay zoning designation applies to Woodstock’s highest elevations and requires specific environmental protections for those sensitive areas.
While one part of the zoning law states if the town’s building inspector/zoning enforcement officer feels a property or development proposal is in compliance with the Scenic Overlay, permits can be issued without Planning Board input, another part of the law requires any development in the Scenic Overlay to go before the Planning Board. After some back-and-forth with the town’s attorney, it was decided permits can be issued without board input.
Discussion of Scenic Overlay regulations began after several accusations surfaced that property owners Marc and Hariette de Swaan Arons were clearcutting property on Valley View Way in Lake Hill, creating a gouge on the mountainside that is visible from across the valley.
Van Hoagland Road resident Jim Monserrate supplied photos and invited two Town Board members and this reporter to view it for themselves. There is no denying a visible gouge is present, but forestry expert Laurie Raskin recently shed doubt that the property in question is the Valley View Way parcel. She believes there is no way it can be viewed straight-on from Monserrate’s property. Monserrate has retained a drone operator to conduct a photographic survey.
“The building department can issue building permits in the Scenic Overlay if they feel that it’s in compliance, and the only ones that the Planning Board will review are the ones that are referred to us by the Building Department,” Planning Board Chair Peter Cross said. He noted there should be a check box on the application that notes if a property falls within Scenic Overlay.
“Then the next thing is that we have to do more site plan review in the field to determine if these things are visible, and we’re going to have to do more than we used to do,” Cross said. “We used to just kind of either think we knew the area enough to know if it was visible, or go to the site and see if we think we could see anything. I think we’re going to have to do better than that.”
Cross suggested a big focus on drone photography showing existing conditions for the record. “In the future, we could send the drone up and see if trees were cut or things were changed without site plan review.”
Language will be added to note the Planning Board may require an applicant to supply recent drone footage taken by a licensed drone operator of the entire area prior to development and footage after completion.
“The purpose of asking people to bring drone photographs is to do that on a property-to-property basis, but if we can do that in a broader sense, I think that’s good as well,” said board member Conor Wenk.
Planning Board Secretary Melissa Gray noted her office began asking that of applicants after recent discussions. “As soon as we see ‘Scenic Overlay,’ we’ve required the drone photos and the area of disturbance. I just think you did really well, and I think the applicants handled it really well,” she said.
“One of the things I brought up is, I would like to see a photographic picture of our mountainsides as they exist now. So in other words, to get good shots of our viewsheds of our mountains as they exist right now, so that we can in the future, look at the big picture,” Cross said.
Wenk also suggested requiring disclosure forms, which are already routine in the real estate world, to ensure applicants are aware of restrictions. “We can come up with our own that needs to be signed and returned back to us that says, ‘My applicant has been informed that the property they’re buying is in the Scenic Overlay and may be subject to additional hoops and scrutiny,” Wenk said. “But in legalese, I think that’s really one of the easiest and most critical steps we can take to building awareness.”
Handling damage already done
In cases where land was clearcut by former property owners and there is no way to hold anyone accountable, the town can start a fund from fines levied for current violations to mitigate any impact, Wenk suggested.
Cross pointed out that there are scenarios where a building permit is not required and the property owner wants to clear trees for a swimming pool or tennis court.
“I am sort of halfway one foot out the door to proposing to the Zoning Revision Committee that we look at the tree law in Cortland, New York, because it basically says, don’t cut trees bigger than some fairly small size anywhere in town without a permit, unless it’s a danger or something,” Planning Board member Judith Kerman said.
Cross noted any land owner can cut up to 20 cords of wood per year.
What does minimizing tree cutting mean? The Scenic Overlay regulations only state tree cutting should be minimized. Wenk, who is also on the Zoning Revision Committee, seeks to change that. “Applicant is expected to avoid any non-essential tree cutting, modification or removal in the visible canopy of the scenic overlay,” Wenk suggested. “Nonessential should be understood to mean having no fundamental impact on the buildability of the lot or the safety of existing structures, or all other measures have been explored and exhausted. These situations will require approval from the Planning Board, or the Zoning Board of Appeals.”
An environmental perspective
“A tree that you can’t see is still an important tree and it has a lot of value and even in the way that the town of Woodstock calculates its emissions,” Woodstock Environmental Commission Chair Alex Bolotov said. “We take into account that we have all of these trees so we want to be conscientious of not cutting unnecessarily even in places that maybe I think we can’t see them.”
Bolotov said she has been discussing recommending a moratorium on Special Use Permits in the Scenic Overlay District.
Councilman Bennet Ratcliff agrees with the idea of a moratorium. He asked about the timeline for changing the Scenic Overlay code, which could be a lengthy process.
“And if it is extensive, do you have a recommendation that there be a moratorium?” he asked.
“A moratorium should be approached with caution. It’s not going to be easy,” Planning Board member John LaValle said. “You can have a considerable amount of pushback, and what are you gaining? How many applications do you think will come up that would be affected by a moratorium that could not be handled by a diligent planning board?”
The housing moratorium alone took about five months, Town Councilwoman Laura Ricci noted. But there is a lot that can be done without revising the zoning code. “You do have, I think, a lot of authority and control before you pass a site plan. You can require the trees get planted, even if the applicant’s not the one that cut them,” she said. “You can still say, ‘Yeah, but the Scenic Overlay law says we’re not supposed to be able to see your building from across the way or down below. And so the only way to make your site plan comply is you’ve got to plant some stuff,’” Ricci said.
“I do believe,” said Ratcliff, “that perhaps we feel the Planning Board has more authority and abilities than are being used and maybe that’s because as the Planning Board, maybe you don’t feel like you have some of those authorities or abilities…In that case, I would recommend that you seek the counsel of an attorney who will tell you and give you an advisory about whether or not you have these kinds of authorities or approval so you can know whether or not you can do that.”
More complaints about Planning Board legal budget
LaValle took the opportunity to take a dig at Supervisor Bill McKenna for zeroing out legal fees in the budget. “Maybe you could then put a motion forward to the Town Board to restore the budget item for lawyer fees that they removed from the Planning Board two years ago,” LaValle said.
Ratcliff said he’d be willing to do that, but wants a recommendation from the Planning Board.
Ricci noted McKenna has increased the attorney budget for the town and while the Planning Board no longer has its own line, it is rolled into the town line. “The whole reason that we had a separate line item for the last 35 years with the Planning Board was so the Planning Board would make that decision…Not have to kowtow to either a Town Board member or the town supervisor. They made the decision,” LaValle argued.
McKenna has explained the change was for a check and balance and that all boards and departments have to get expenses approved.
The Planning Board will send another letter to the Town Board requesting that its legal budget be restored.
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