Village of Greenwood Lake Zoning Board of Appeals
Meeting called to order at 7:30 on December 21st, 2023
Members:
Diane Bramich (Recused, Conflict of Interest with Applicant business, prior owner of property)
John Ziboro (Recused, Acting Village Attorney representing village building department)
Floyd DeAngelo
Vic Ludmere
John Sorrentino (Recused, Applicant’s property)
Edward Krull (Recused, Applicant’s property)
Bernie Fink
Bryan Martin (Board member, Alternate)
Brandon Nelson (Board member, Alternate)
David MacCartney (ZBA Attorney, Alternate)
Ed Mateo (Building Department)
Chad Sellier (Village Trustee)
Danielle Mulqueen (Planning Secretary, Building Department)
Mackenzie Winne (ZBA Secretary)
Business:
Applicant: 1177 Route 17A, Greenwood Lake, LLC (Marina)
Diane Bramich: All stand for the pledge of allegiance.
All: I pledge allegiance to my Flag and the Republic for which it stands, one nation, indivisible, with liberty and justice for all.
Diane Bramich: Has everyone read the minutes from the last meeting?
All: Yes
Diane Bramich: Do I have a motion?
Bernie Fink: Motion to accept the minutes.
Diane Bramich: Do I hear a second?
Brandon Nelson: second
Diane Bramich: All in favor?
All: Aye
Diane Bramich: Each case before this board is judged on its own merit based upon the evidence received by the board. No decision made by this board of appeals may be used as a precedent in this case or any other before the Board. By advice from an Attorney, I’ve been asked to recuse myself from this application as I am the previous owner of said property. Floyd DeAngelo will now be running this meeting.
Mackenzie Winne (Secretary): Reading the Public Notice:
VILLAGE OF GREENWOOD LAKE ZONING BOARD OF APPEALS LEGAL NOTICE To Whom It May Concern: LEGAL NOTICE is hereby given to all persons that 1177 Route 17A, Greenwood Lake, LLC the petitioner, has applied to the Zoning Board of Appeals of the Village of Greenwood Lake, for a Variance and/or Interpretation pursuant to Chapter 120 Section 1, 62, 16, 47, of the zoning laws of Greenwood Lake said petition for a variance and or and interpretation seeks authority for the petitioner to reverse the decision of the building departments letter dated on 9/6/23 to confirm the permitted use of accessory building, cabin 12, as an eating and drinking place which requires the said zoning board to review the section of the law as stated here and above. The property which is the subject of said action by the Board is identified as Section 306, Block 17, Lot 1 on the tax map of the Village of Greenwood Lake and is also known as the address 1177 Route 17A Greenwood Lake NY 10925. All interested parties to be heard on the Board’s actions must appear at a public hearing to be held commencing at 7:30 P.M. on December 21st, 2023, at the Village Hall at 18 Church Street in the Village of Greenwood Lake, New York. Documents relating to this application may be inspected by the public during regular business hours in the Building Department at Village Hall. Published 10/31/23.
Floyd DeAngelo: Ok, we also have the proof of the mailings here. Is the real property tax paid to date?
Edward Krull: Yes
Floyd DeAngelo: Ed (applicant), please state your name and address.
Edward Krull: Edward Krull, 659 Jersey Avenue, Greenwood Lake, NY 10925
Floyd DeAngelo: Do I hear a motion to open the public hearing?
Bernie Fink: Motion to open public hearing
Floyd DeAngelo: Do I hear a second?
Brandon Nelson: second
Floyd DeAngelo: All in favor
All: Aye
Floyd DeAngelo: Applicant, please present your case.
Edward Krull: Before we start, I just want to let the board know that John Ziboro has represented me personally before and is now representing the village, in case this is a conflict of interest. Secondly, I would like the recording of this meeting to be retained so we can get a copy of it. Ok, in December of 2021 we started to talk to the village; Jesse Dwyer, Building Department and myself, about what their vision was for the area where we are located and what would be a good fit there. We told them what our short-term goals were and what our long-term goals were there. We talked about building, landscape features and ultimately putting up some sort of food stand. Originally it started out as having an area for a food truck, but the village thought that has been done already and wanted to see more of a permeant structure there instead, which led and ended at a food stand / concession stand. We got the preliminary plans started, survey and the building dimension which we gave to the building department who went over it and said there were some issues with the preexisting foundation from the motel that was wasn’t 100 ft away from the lake, per the code, and that we would have to go to the planning board regarding that. On the building departments suggestion to move the structure 40 ft back would then take care of the code to be 100 ft away from the lake and then would not have to be subjected to the perils of the planning board. We submitted plans and the building department marked them up to show where the corners are, the side yards and issued the permit with those verbiages on there. We simultaneously applied for a building permit and a liquor license. Our consultant for the liquor license noticed that the village about 2/3 weeks before the building permit was issued and got it all together and we got the permit and then I ordered a prefabricated building that arrived in about 3 months. We did some preliminary layout on it, and there was some plumbing that went in the slab for the behind the service counter and sinks, underground water supply and electric supply and we got all that inspected. The slabs were capped, and the building arrived, and we erected the building. Over the course of the next year, we got the building up, fitted out the interior and got the regular inspections done throughout for the framing and insulation, and all this took us about a year and 2 months to get done. Sometime in late April we were finished and then May 1st we got our final inspection done, and passed and got our certification of compliance. We also got our business license for a food and beverage facility issued and we were good. We started to move forward to open but then 9 days after the final inspection we got a letter that we never notified the village of our SLA liquor license application. We got a copy from our consultant of the notice and the returned receipt that we brought down to the village and gave it to them. We didn’t hear anything for a little while longer and then we were inquiring when it was going to be settled and then we got a 2nd letter that stated pretty much the same thing that we couldn’t use the liquor license and that we would need a special use permit if we wanted to sell liquor. They gave us the special use application to fill out and I looked at it and this is a permit to serve alcohol in public places and not for a private piece of property and it just didn’t seem right. I contacted our consultant from the SLA, and they said absolutely not – that’s an attempt for a municipality to regulate the sale of alcohol and it’s prohibited in the state of NY. We talked back and forth and couldn’t get a straight answer, so I wrote a letter to the building department and the letter was answered by John Ziboro. The answer this time was different, and it was that we were going to have more uses on the property, and it was going to be a mix use. All along though we all agreed it was going to be an accessory to the Marina, has the same owners, where it was placed on the property, it’s not close to the road it’s for the all the marina people. Suddenly, they said it was a separate use even though I reiterated that its for the marina people with same owners and it’s not another business. We talked back and forth but it didn’t seem like it was going anywhere so I felt like I didn’t have a choice, so I filed for the interpretation b/c I felt like I did everything I was supposed to do under the law, I did all my construction, did all my permits, went through the whole process, got a final inspection, Cert of compliance and a business license. When I filed my interpretation, the answer I got back this time wasn’t about the liquor license, wasn’t about using more utilities than the property previously did or be more traffic to the property than it did previous, now it was that the building was overbuilt. That building was built exactly where I was told to build it, exactly to the size I was permitted to build it and it’s the exact same building we proposed from the beginning standing there today.
Dennis McCoobery (Applicants Attorney): Now, to put some of this in context as Ed was just describing the petitioner went to the village, went to the building department, had the plans reviewed by the building department and took their suggestions. Complied with all the suggestions and requests of the building department. They build the building, they get the building permit, they give their notice to the village of the SLA license in February 2022. They get the building permit in early March 2022. By the time they got the building permit the village was already on notice of the SLA application. The village was silent and didn’t object which was the villages right to do so, but they didn’t. They get the building permit and spend 10s of thousands of dollars to construct the building and it is inspected over and over and over again.
Edward Mateo: Twice
Dennis McCoobery (Applicants Attorney): That’s not true. So, then we get this letter after we get our final inspection and have put in our application for a business license – a business license that clearly states as a food and beverage concession. That was what we were asking a business license for. Mr. Mateo signed the application, then 8 days later he sends a letter saying, “The sale of alcohol and beverages initially requires a temporary use permit.” That’s the first time we heard of that. He also stated, “your stated approval of liquor license of alcohol has not been received by the village” He is saying we never notified the village, that’s not true. The village never objected to our SLA application. Subsequently to sending that letter Mr. Mateo signed a certificate of compliance, that the building was in totally compliance with the building permit and plans approved by Mr. Mateo. Fast forward a couple months and we get another letter from Mr. Mateo; this is another thing that’s confusing – there are two letters from Mr. Mateo and two letters from Mr. Ziboro. Which one is the determination we are supposed to appeal from? Will get back to that. In any event, we get the first letter from Attorney Ziboro saying it’s a restaurant, which its not. There is no kitchen, no stove, no grill, no overhead broilers and no deep fryers. How do you have a restaurant with no equipment to cook? There is no outside dining, there is going to be no waitstaff it is counter service only. The second letter from Mr. Ziboro says, “This shall confirm that after reviewing the building departments file of the subject premises, the current allowed use is for a marina and an accessory structure for a concession stand and shop storage only.” That’s precisely what we’re trying to do here. It says right in this letter that it’s a permitted use as an accessory. The law says once it’s a permitted use, the village, the zoning board, nor the building department can regulate the sale of alcoholic beverages, that’s the sole purview of the SLA. This case is all about the sale of beer and wine and liquor in a concession stand. We all know that there are several marinas in the village that have similar concessions with SLA licenses. I would say to the board look at the facts, what is going on here. The petitioner did everything they were supposed to do. They applied for the appropriate licenses, they build the building to the specifications they were told to by the village, and now at the last second when they are ready to open the carpet gets yanked out from underneath them. We would like to cite a similar case in our submission, Ray Woods, a property owner went to the building department in NY, plans were approved by the DOB. They build the building, they get the substantial completion, the building department says they may be building a use it’s not zoned for and yanked the building permit. The outcome of this ruling was when a property owner constructs a structure in compliance with issued permits you cannot at the last second pull out the rug out from under someone and tell them they cannot do what they intended to do. We would submit that were in conformance with the zoning code, that we should be intitled to open the concession stand and that there should be no interference from the building department or village of Greenwood Lake.
Ed Mateo: Floyd I would like to make a request. Only this morning I received this 35-page document (document Ed Krull handed out) from the petitioner, and I haven’t gotten a chance to look it over. They make some pretty serious allegations that I was unaware I was even being accused of. There is a very detailed timeline and includes a lot of alleged factual information none of which I really had a fair amount of time to react to. What I would like to ask of the board is to adjourn this meeting for the month until I have time to submit my 35-page document that answers each and every one of the questions implied or suggested in this document. It’s unfair for me to be asked to respond here rationally when I’ve only had this for 12 hours.
Dennis McCoobery (Applicants Attorney): We object to the adjournment of this meeting. Mr. Krull please explain when you sent the document to the board.
Edward Krull: Yesterday, With the everchanging reasons we were getting as to why we couldn’t open I put the document together to keep track/timeline of it all. its all evidence and documents they are all very familiar with.
Floyd DeAngelo: Let Ed Mateo finish.
Ed Mateo: From Ed Krull’s own admission it was brought to the building department on Wednesday, I work on Tuesdays and Thursdays, and he is fully aware of that so I got that document this morning. Today I have to work, in addition to the other duties I have to do I tried to mull over these statements in this document with statements and exhibits – which I need to look over. I ask again, you all have the document and have looked it over and I think you can agree there is a lot to digest and time needed to react to it rationally with factual evidence, like the timeline I don’t necessarily dispute anything with it but I believe there might be items that need to be added, otherwise with omission it’s deceptive and I need time and research to go through it.
John Ziboro (Village Attorney): This new submission that was just received by Mr. Mateo this morning is an amendment to their application and we haven’t had the required 30 days to review. The first time I received it was doing the walk through tonight at 6:30 and haven’t even read it as the acting village attorney. I believe we have 60 days to make a determination and I am joining the request as the acting village attorney that we adjourn until next month, so we have ample time to address the concerns to this amended application.
Edward Krull: So, it’s not an amendment. I’m still here for what it says on my application. I either want to be confirmed or not that what I have there is whatever you want to call it, an eating and drinking place, a concession stand, etc. The unfortunate thing is that this argument started with it was called a concession stand on the plan, then John Ziboro called it a restaurant, Ed Mateo said concession stands don’t have liquor licenses, I said whatever you want to call it I put concession stand on the plans because that is what you guys told me to put on it but call it whatever you want this is the stand at the willow, this is the shack in the back, this is exactly what it is. We have all been there, we’ve all had a beer and a hamburger there, that’s what this is. Where you have your boat, and you can walk off and get a bite to eat and go back to your boat. That’s what my interpretation was asking for, call it whatever you want but I need an answer and I need to know and that I can serve the foods that I want to serve (passes out a menu of the food items to be served)
Bernie Fink: I would like to say something, are we hear to judge procedures or are we here to decide whether they can open this thing or not? I just don’t understand, you don’t agree with what Ed Mateo/building department did, but I don’t think this is what the zoning boards job is. We’re here to decide whether or not what they want to put there is allowable or not, am I right? I want to hear what we are really here for. I’m not here to judge Ed Mateo or Ed Krull or anyone else here. I think we are here to decide wether what they have meets the law or if it doesn’t meet the law. I would like to hear what Danielle has to say.
Danielle Mulqueen: It’s not whether or not they can have it, it’s about the process to have that needs site plan approval by the planning board. It’s that simple and they just don’t want to go to planning board.
Ed Mateo: We never denied them or said they can’t do anything we said they need a special use permit, if they want to operate temporarily while this went to planning board. The planning board does not object to what they want to do, there is just many things that are required that need to be evaluated for standard operation that is the planning board purview not zoning boards purview.
Dennis McCoobery (Applicants Attorney): Let’s look at Mr. Ziboro last letter where he says that a concession stand is allowable as an accessory use on the property and that’s what we’re doing. That’s why we keep coming back to the SLA point as we see this is the only part they are taking issue in and for some reason don’t want us to sell alcohol there.
Edward Krull: Please read that document I just handed out, we are an HC, Highway Commercial, encouraged recreation related and commercial uses along the villages primary arterial. I highlighted 3, 4 and 6. I believe we are an eating and drinking place because we are not a restaurant. Restaurant by definition in the village is that you are going to take orders from menus at tables with waitstaff, which we are not.
Bernie Fink: Is that what we are here to decide?
Edward Krull: Yes, that we are an eating and drinking place and that it’s an accessory use.
David MacCartney (Attorney for ZBA): Can I jump in; I’ll give you what my understanding is of the application. My understanding is that the determination is the applicant is here appealing the determination made by either or both by Mr. Mateo or Mr. Ziboro in their collective letters, that seem to me are more or less the same and that the determination they made is that pursuant to section 120-87.1 and section 120-47 that the permit was issued for a particular use (an acessory concession and storage use) and Mr. Mateo subsequent determination that upon his inspection that what was actually built and intended is a change in use from a use that was previously exisiting on the property. From what I understand the relevant sections that Mr. Mateo and Mr. Ziboro made their findings from is from section 120-87.1 is the section on legal use and there is a sub section C that says that, “in the event that a use differs from a use previously conducted on the premises, the building inspector should refer the matter to the planning board to determine whether site plan approval will be required in accordance with section 120-47 A 3 of the code.” If you go to section 120-47 that is about site plan needed and section 120-47 A 3 says “that any change of use of property or structure for permitted use where that use will increase traffic, or the need for parking, water, sewer and other community services said determination shall be made by the planning board.” My understanding the determination of why we are here is that the determination has been that the applicant needs to go to the planning board for either site plan approval or for the planning board to make a determination as to whether site plan approval is required under Section 120-47 A 3. The issue before the board is not to determine whether the use is permitted or not permitted, that’s not within your jurisdiction or what the applicant is asking you to do. The applicant is asking you to reverse that determination and that, that determination was improper that the use has not changed. That is the determination you are here to make.
Ed Mateo: My job here is to represent the taxpayers and residents of this community. Why would I look at an application and change my mind after the fact. It’s very important for everyone to realize the difference between an accessory structure and an accessory use. The permit was granted for an accessory structure, not an accessory use. An empty prefabricated accessory structure that’s greater than 100ft from the lake would require no planning board approval and no other approval other from the building department if met the bulk requirements and all the other requirements and I was happy to issue it. I am representing the entire town and I can’t say now that this is still an accessory structure and that it didn’t morph into a new accessory use. If it stayed a storage, concession or bathroom only that would be accessory to the marina and planning board would not be required but a bar is not an accessory to the marina, it is a new use and will create more traffic.
Edward Krull: We call for a vote, please this has been going on for so long and all I ask is to please make a vote tonight so we can put this to bed.
Summary:
The applicant believes the use has not changed and that it is still a concession stand/storage building as an accessory use to the marina and therefore do not believe they need to go to the planning board and believe this was clear from the beginning of this application and should be able to open as an eating and beverage place with an accessory use to the marina and would like us to overturn the building departments decision that it has turned to a new use and need to go in front of the planning board.
The building department believes upon the final inspection, the application to the SLA, and other determinations that they believe the use has changed and it has now changed to be a secondary use, a new use into more of a bar/sit down eatery than the originally applied concession stand/storage building and that the applicant needs to go to the planning board for approval on the new use and that the applicant needs to follow the proper procedures required in order to move forward.
The ZBA board members need to decide on whether they agree that the use has NOT changed and overturn the building departments decision that this is a new use and that the applicant needs to go to the planning board or agree that this IS a new use and uphold the building departments decision that the applicant must go ahead of the planning board for site plan approval.
David MacCartney (Attorney for ZBA): Can I jump in here, we’ve all been here a while now and we have heard a lot of the same things, it keeps going around and around. The board has heard an awful lot of material. There are multiple options you have right now.
- Keep the public hearing open.
- It’s not unusual to have an Attorney – client legal advice session on the legal principles whether or not you keep the public hearing open or close it.
- Close public hearing – On the date you close the public hearing you have 62 days by statue to decide the matter.
All of these options are legal and rational, and you can also do a combination of these options. It may be you need more information, or you may have every bit of information you need but you need some legal advice on some of meanings of the any of the sections or any open questions you have in your head. When it comes to making a decision tonight or a future date typically speaking its going to have to be by a written resolution. Sometimes boards can either take a straw vote and direct the attorney to prepare a resolution in consistent with the result of the straw vote to be presented at the next meeting so the attorney can draft and then you can either pass or not at the next meeting. Or if you know how you want to vote we can take a formal vote and also direct the attorney to write a resolution consistent with the vote setting forth the legal principles.
Bernie Fink: So, you are saying we can close the public meeting and have a meeting with just the members so we can all discuss and get on the same page and then take a vote within that 62 day period?
David MacCartney (Attorney for ZBA): yes and no, what you can do is close the public hearing, and deliberate on the merits of it you have to do so in a public setting. If you want to have legal advice about any aspect, you can make a motion to go into an attorney client privilege session with the purpose of seeking and receiving legal advice.
Dennis McCoobery (Applicants Attorney): Can I ask a question if you keep the public hearing open that would be an adjournment to the next meeting, correct?
David MacCartney (Attorney for ZBA): Yes.
Vic Ludmere: I have a question for the attorney were being asked to make a determination if this is an eating a drinking place and if that differs from a restaurant and were going to have to make a determination if it is an eating and drinking place is it within the application of a food and drinking concession. There are different interpretations of a concession, one is you go up to a counter and you take something away. The other type is you go up to a counter and don’t take something away and eat in there. Do we have the authority to make the determination as to what is the nature of a concession, because I think we have two interpretations of what a concession is.
David MacCartney (Attorney for ZBA): I’ll answer it this way. I think part of what you’re asking me Is a request in legal advice.
Vic Ludmere: Yes sir.
David MacCartney (Attorney for ZBA): I’m very reluctant to provide legal advice specifically in a public session. I would be happy to address that in an attorney client session.
Vic Ludmere: Ok, I think I need a lawyer’s advice before we can take a straw vote. If you are asking us to do something I need a legal opinion
All board members agreed.
Bernie Fink: I make a motion to have an attorney client session tonight for legal advice
Bryan Martin: I second that motion
Floyd DeAngelo: All in Favor?
All: Aye
Everyone is to leave the room for the board to have a Private Attorney Client privilege session to ask any legal questions the board may have.
Everyone is asked back into the room.
Floyd DeAngelo: Do I hear a motion to come out of the Attorney client privilege session.
Bernie Fink: Motion to come out of the Attorney client privilege session.
Vic Ludmere: Second
Floyd DeAngelo: All in favor
All: Aye
Floyd DeAngelo: Do I hear a motion to close the public meeting.
Bernie Fink: Motion to close public meeting
Vic Ludmere: Second
Floyd DeAngelo: All in favor
All: Aye
Floyd DeAngelo: I need a motion to have a special meeting on Tuesday January 9th at 7:30 for the board to take a vote on said application after we have the Attorney, David MacCartney do some research.
Vic Ludmere: Motion for special meeting to vote on said application.
Bernie Fink: Second
Floyd DeAngelo: All in favor
All: Aye