Zoning Board of Appeals

City of Mount Vernon Meeting Date Zoning Board of Appeals Meeting Minutes November 20, 2023 Zoning Board of Appeals Department of Planning & Community Development City Hall - Roosevelt Square Mount Vernon, New York 10550-2060 (914) 699-7230 Shawyn Patterson-Howard Michael Justino Mayor Chair ZONING BOARD OF APPEALS MEETING MINUTES NOVEMBER 20, 2023 A regular meeting of the Zoning Board of Appeals was held at 6:30 PM on Mondy, November 20, 2023 in the Mayor’s Conference Room on the 1st floor of City Hall. Applicants and members of the public were permitted to attend and make public comments in person and via Zoom. The Chair indicated that the roll call was the first item on the agenda. Item #1 – ROLL CALL The Chair called the roll: in addition to the Chair, attending were Commissioners Elvira Castillo and Conrad Cutler. Also attending were Katherine Mella, Associate Commissioner; Maria Pace, Land Use Board Secretary; Will Hyland, Senior Planner; and Nkechi Nwachukwu, Land Use Counsel. With a quorum of three members present, the Chair opened the regular meeting at 6:35 pm. The Chair read the notice for the Zoning Board of Appeals meeting for Monday, November 20, 2023. Item #2 - APPROVAL OF MINUTES The Chair asked if the Commissioners had reviewed the minutes of the October 17, 2023, meeting. The Commissioners indicated that they had reviewed them but had a number of edits. Commissioner Castillo made the motion to hold approval of the minutes until all corrections are made, seconded by Commissioner Cutler, and approved with a vote of 3-0. ITEM #3 PUBLIC HEARINGS 1  City of Mount Vernon Meeting Date Zoning Board of Appeals Meeting Minutes November 20, 2023 Continued Public Hearing 3.1 Case # ZBA-23-7: 127 South Terrace Avenue (Section 164.84, Block 1061, Lot 17) located in the Industrial Zoning District. Regarding public notice: The Board previously received proof of mailing, proof of publication in the Journal News, and proof of initial sign posting for the application. The Board also received an Affidavit of Sign Posting stating that on November 2, 2023 a sign was posted at the site giving notice of the Zoning Board’s November 20, 2023 meeting. The Board also received photographs showing that the sign posting on the property has been updated providing notice of today’s meeting. The owner, Mr. John Ruggiero, was represented by his Engineer, Shahin Badaly, PE. The application is for the conversion of an existing building from auto storage into a cannabis retail dispensary at 127 South Terrace Avenue. This request is for a use variance since the Industrial zone has no permitted retail or cannabis uses, as well as an area variance for parking. The subject property is on the east side of South Terrace Avenue approximately 400’ to the north of South Street in the Industrial zone. The subject property is 9,456 sf or 0.217 acres. The property contains a one-story commercial building and a two-story commercial building. The first floor of the two-story building is proposed to be converted into the retail cannabis dispensary. The building is 2,800 sf and is proposed to have 7 parking spaces in the front asphalt parking area. The dispensary will contain storage, display cases, a sales area, and office space. The property’s frontage is approximately 94’ with a depth of 100’. The Applicant plans to expand the two curb cuts to 16’ that lead into the parking lot. The Applicant will need City Council approval for the depressed curb cuts which exceed 12’ as well as approvals from the Planning Board and the Architectural Review Board. The Applicant has provided a revised site plan and Statement of Principal Points for the November meeting. Area Variance Requested (§ 267-Attachment 3): Item Required / Permitted Proposed Variance Requested Off-street Parking 10 spaces 7 spaces 3 spaces (1 per 200 sq ft of GFA) SEQRA – The proposed action is a use variance and as such it is classified as an Unlisted action under SEQRA. At its September 19, 2023 meeting, the ZBA declared its intent to serve as Lead 2  City of Mount Vernon Meeting Date Zoning Board of Appeals Meeting Minutes November 20, 2023 Agency for the environmental review of this proposed action. The ZBA received no written objections to the Notice of Intent that was circulated. The application has been sent to the Fire Department, the Police Department, the Water Bureau, DPW, and the City Engineer for comments. The Fire Department noted that the carbon monoxide detectors were not shown on the drawings, asked if there were hazardous materials present and whether the facility would be equipped with an automatic sprinkler system and fire alarm. They also requested to see the proposal for the second floor of the building and the proposed usage of the existing single-story building on the property. The Fire Department also noted that the HVAC system should meet or exceed the NYS 2020 Energy code. The Water Bureau noted that a fire flow test must be done to determine how much water is available for the project. The application was also referred to Westchester County Planning for GML review and also noticed to the City of Yonkers since it is within 500’ of the Yonkers border. Westchester County responded with comments on October 10, 2023. The ZBA also requested comments from the Planning Board, Architectural Review Board, the Mayor, City Council, as well as the Buildings, Law, and Planning Departments. The Buildings Department commented that since the code has not been updated to include cannabis use, they would recommend that conditions such as following state regulations and any policy by the City of Mount Vernon be attached to an approval. The Planning Department shared comments regarding the lack of precedence of this application, the Applicant’s conditional license, concerns about the State’s injunction on issuing licenses, and the lack of guidance from the State on the siting of cannabis-related businesses. On behalf of the Mayor, IDA Director Robin Mack shared an op-ed written by Mayor Patterson- Howard titled: “Unlocking Opportunity: Why Mount Vernon Should Embrace the Cannabis Industry,” a set of FAQs, as well as a proposed cannabis business zoning policy document. The City Council provided a letter on October 24, 2023 requesting that the application be referred to them for a zoning amendment. There was discussion regarding the referral of this application to the City Council. The Chair indicated that if the application is referred to the City Council, the Council would serve as Lead Agency for SEQRA purposes. He then read the letters received from the City Council and Westchester County into the record. The Chair asked if there were any public comments; there were none. The Applicant, represented by engineer Shahin Badaly, indicated that he discussed the matter with Corporation Counsel and is in support of the proposed methodology. Commissioner Castillo then made a motion recommending the referral of this application to the City Council for zoning amendment, seconded by Commissioner Cutler, and approved with a vote of 3-0. 3  City of Mount Vernon Meeting Date Zoning Board of Appeals Meeting Minutes November 20, 2023 New Public Hearing 3.2 Case # ZBA-22- 2: 48 Mersereau Avenue (Section 165.57, Block 2088, Lot 1) located in the R1- 7 District. Regarding public notice, the Board received: An Affidavit of Mailing stating that on November 2, 2023 notice was mailed to property owners within a 250-foot radius of the site; An Affidavit of Sign Posting stating that on November 1, 2023 a sign was posted at the site giving notice of the Zoning Board’s November 20, 2023 meeting. The Board also received photographs showing that the sign posting on the property provided notice of today’s meeting. Proof of publication was submitted showing that notice was published in the Journal News on November 5, 2023 and November 6, 2023. The owner, Rebeca Reyes, was represented by Shahin Badaly, PE. The Applicant is requesting area variances to construct a proposed driveway and retaining wall within the front yard of an existing property. The 12’ wide driveway is proposed to provide one off-street parking space within the front yard of an existing 1,022 sf single-family residence in the R1-7 zone. A retaining wall is proposed around the driveway since the front yard is on a steep slope. The maximum height at the property line is 4’. The maximum height within the front and side yards is 12’. The applicant received approval from the City Council for a curb cut on June 29, 2023. The area variances requested are for number of off-street parking spaces, off-street parking within the front yard, and retaining wall heights at the front and side yards. The Applicant’s Engineer has provided a discussion for each of the six criteria listed in the application. The proposed wall will include a drainage system to mitigate any potential impact on the nearby properties. The development of the driveway will increase the amount of available on-street parking. Area Variances Requested: Item Required / Proposed Variance Permitted Requested Off-Street Parking within Off-street parking not 1 space within front 1 space Front Yard §267-37A permitted in front yard yard Off-Street Parking §267-3 2 spaces, one in garage 1 space within front 1 space yard Retaining Wall Height at 4 feet 10.75 feet 6.75 feet Front Yard §267-14 4  City of Mount Vernon Meeting Date Zoning Board of Appeals Meeting Minutes November 20, 2023 Retaining Wall Height at Side 6 feet 12 feet 6 feet Yard §267-14 SEQRA Determination – The proposed action is a “Type II” action under SEQRA based on DEC 617.5 (c) (17) “granting of an area variance for a single family, two-family or three-family residence ...” therefore, ending the SEQRA process. The Chair read the Planning & Community Development comments from Commissioner Rausse into the record. Mr. Shahin Badaly, the applicant, provided a rendering that shows the retaining wall follows the existing cliff: it is shallow at the street end but becomes taller as it is built back. He expressed the owner’s desire for the house to be level so it’s easier to navigate as the owner gets older, and also pointed out that there is no other area to develop a driveway. He also advised that a stormwater management plan will mitigate the run-off into the street. The new driveway will have a 12 ft. trench drain and cultec chambers will improve drainage as water will not flow into the street. The Chair asked if there was any discussion about building a real garage. Mr. Badaly said he had discussed building a garage with the owner, but the cost would be prohibitive, and the excavation is already substantial. A portion of the house and foundation would also have to be demolished to build the garage. The Chair then asked if there were any public comments. Sandra, who resides at 39 Mersereau Ave., agreed that the owner needs a driveway, which would mitigate the stress of her having to find a parking spot on the street late at night. DeAndra, who resides at 38 Mersereau Ave., also agreed that the owner needs a driveway, which will only increase property values on the block. She also said that it is the only house on the block without a driveway. Mr. Michael Javier reiterated that the driveway would add value to the property and the block. Mr. Badaly said that the City Council, which approved a curb cut for the property in June 2023, also supports the application. Commissioner Cutler asked about the length of the driveway. Mr. Badaly said it is 29 ½ ft. long, so it can fit only one car. The Chair asked about the change in grade regarding the Planning Board. Commissioner Cutler noted that the cultec system will address the change in grade. 5  City of Mount Vernon Meeting Date Zoning Board of Appeals Meeting Minutes November 20, 2023 The Chair said that this application would need to go to the ARB regarding the length of the driveway. He also pointed out issues in the Plan Examiner report regarding the condition of the stairs and the railing. Mr. Badaly stated that, per the Building Department, the home does need new stairs and railings, which are included on the site plans but not on the 3D renderings he recently submitted. Commissioner Cutler asked about the stone steps. Mr. Badaly said the steps would be a stone tread, such as bluestone. Commissioner Cutler then made a motion to approve the application, seconded by Commissioner Castillo, and approved by a vote of 3-0. ITEM #4 ADMINISTRATIVE ITEMS In accordance with Article XXI(A) of the Zoning Board of Appeals Rules of Procedure, “these rules of procedure may be amended from time to time by an affirmative vote of a majority of the entire membership of the Board.” As it currently reads, Art. IV(C) of the ZBA Rules states that "A quorum shall consist of three (3) members of the Board and the concurring vote of three (3) members shall be necessary to effect any decision before the Board." As it currently reads, Art. IV(C)(5) of the ZBA Rules, in relevant part, states that "Decision on any matter before the Board shall require an affirmative vote of a majority of the members present at a meeting." 4.1 Proposed Amendment to ZBA Rules of Procedure Art. IV(C)(5) To bring Art. IV(C)(5) in line with Art. IV(C) of the ZBA Rules, it is proposed that Art. IV(C)(5), in relevant part, be amended to read as follows: “Decision on any matter before the Board shall require an affirmative vote of a majority of the members present at a meeting a concurring vote of three (3) members.” (Old language is stricken out; New language is underlined. All other language in Art. IV(C)(5) of the ZBA Rules remains unchanged.) Commissioner Castillo made a motion to approve the proposed amendment, seconded by Commissioner Cutler and approved by a vote of 3-0. 4.2 Proposed Amendment to ZBA Rules of Procedure Art. V(E) NYS Open Meetings Law § 105(1)(Conduct of executive sessions) states, “Upon a majority vote of its total membership, taken in an open meeting pursuant to a motion identifying the general area or areas of the subject or subjects to be considered, a public body may conduct an executive session for the below enumerated purposes only, provided, however, that no action by formal vote shall be taken to appropriate public moneys.” 6  City of Mount Vernon Meeting Date Zoning Board of Appeals Meeting Minutes November 20, 2023 To bring the ZBA Rules into compliance with the NYS Open Meetings Law, it is proposed that Art. V(E) of the ZBA Rules (Meeting: Executive Sessions), in relevant part, be amended to read as follows: “Upon a motion by one Board member, and seconded by another Board member, the Board, by a majority vote of the members present at a meeting, its total membership, may approve an executive session only for a subject provided in Section 105 of the New York State Public Officers Law, Article 7, the Open Meetings Law.” (Old language is stricken out; New language is underlined. All other language is Art. V(E) of the ZBA Rules remains unchanged.) The Chair noted that the reasons to go into an executive session were not referenced and requested that land use counsel provide the language so that the board is aware of the information. Commissioner Cutler made a motion to approve the proposed amendment, seconded by Commissioner Castillo, and approved by a vote of 3-0. 4.3 Proposed Amendment to ZBA Rules of Procedure Art. XXI (Adoption and Amendment) - Renumbering In order to correct a clerical error in numbering, it is proposed that the heading of Article XXI. Adoption and Amendment be amended and renumbered to read as follows: “Article XXI XXIII. Adoption and Amendment.” (Old language is stricken out; New language is underlined.) Commissioner Castillo made a motion to approve the proposed amendment, seconded by Commissioner Cutler, and approved by a vote of 3-0. 4.4 Westchester County Planning Board Statement on Affordable Housing Notifications Planning Department staff received a letter from the Westchester County Planning Board dated October 20, 2023, which was provided to the Zoning Board for their information and review. The Chair read the Westchester Planning Board Statement on Affordable Housing into the record. The Chair noted that the ZBA should have a copy of the model ordinance provisions sent out by Westchester County prior to the December 19 meeting. He also stated that the letter reads as generic with no teeth, and that Mount Vernon does not have any issue relative to the existing affordable housing it already provides. Continued Public Hearing 3.3 Case # ZB- 22-3: 114 – 118 E. Third Street (Section 165.79, Block 3157, Lots 5 and 6) located in the Neighborhood Business (NB) District. Regarding public notice: 7  City of Mount Vernon Meeting Date Zoning Board of Appeals Meeting Minutes November 20, 2023 The Board previously received proof of mailing, proof of publication in the Journal News, and proof of initial sign posting for the application. The Board has also received an Affidavit of Sign Posting stating that on November 5, 2023 a sign was posted at the site giving notice of the Zoning Board’s November 20, 2023 meeting. The Board also received photographs showing that the sign posting on the property has been updated providing notice of today’s meeting. The owner, East Third Street Equities, is represented by his attorney, Mr. Neil Alexander, Esq. from Cuddy & Feder, and his architect, Mr. Shahin Badaly. The subject property is on the south side of East Third Street, approximately 335’ west of Franklin Street in the Neighborhood Business district. The NB district extends approximately nine blocks from South Fulton Avenue on the east to South 7th Street on the west. The subject property is 7,162 sf or .16 acres. The property’s frontage is approximately 76’. It is occupied by a two story, 3,000 sf commercial building, which is vacant. The Applicant is seeking a use variance as well as area variances to construct a new, 28,788 sf apartment building. The proposed multi-family building would be 8 stories and approximately 75’ in height with 49 units (21 studios, 21 one-bedroom units, and 7 two-bedroom units). The Applicant has provided a Zoning Analysis on the submitted site plan. The Plan Examiner’s Report indicates approvals needed from the ZBA, the Planning Board, and the Architectural Review Board. The Applicant’s attorney provided a Statement of Principal Points in support of the use variance and the area variances. The attorney indicated that the owner has owned 118 E. Third Street since 1972 and then purchased 114 E. Third Street in 2018. As financial evidence in support of the Applicant’s use variance request, the Applicant’s attorney provided a letter from RM Friedlander dated 11/11/22 which described the firm’s unsuccessful marketing efforts for the last three years and their recommendations. Mr. Alexander also provided a description of the nature of the area, indicating that there are multi-family buildings at the northeast and southwest corners of East Third Street and Union Avenue (1/2 block to the west of the site in the NB zone). He also noted that the 13-story Randy Daniels Towers (20 East Third Street) is one of several mid-rise, multi-family buildings approximately 2 blocks to the west of the subject property. The Applicant has also provided a summary of construction and financing costs for the Zoning Board. Area Variances Requested: (§ 267-Attachments 2 & 3) Item Required / Proposed Variance Permitted Requested 1.0 maximum 5.36 4.36 Floor Area 2 stories maximum 8 stories 6 stories Building Height (stories) 8 City of Mount Vernon Meeting Date Zoning Board of Appeals Meeting Minutes November 20, 2023 30’ maximum 74.67 feet 44.67 feet Building Height (feet) 60% maximum 67% 7% Lot Coverage – Building (%) 90% maximum 100% 10% Lot Coverage – Impervious Surface (%) 98 spaces 42 spaces 56 spaces Off-street Parking (2 per dwelling unit) SEQRA – The proposed action is a use variance and is classified as an Unlisted action for SEQRA purposes. At its March 21, 2023 meeting, the ZBA declared its intent to serve as Lead Agency for the environmental review of this proposed action. The application has been sent to the Fire Department, the Police Department, the Water Bureau, DPW, and the City Engineer for comments. The Planning Department received comments from The Water Bureau, the Fire Department, and the City Engineer. The application was also referred to Westchester County Planning for GML review; they responded with comments on March 21, 2023. The ZBA also requested recommendations from the Planning Board and the ARB. The Chair of the Planning Board provided comments on May 10, 2023 and the ARB provided comments on May 22, 2023. The City Council provided a letter dated May 9, 2023 with their comments. This application was adjourned to the December 19 meeting due to Commissioner Cutler recusing himself, leading to lack of a quorum. Meeting Adjournment The Chair asked for a motion to adjourn the meeting. Commissioner Castillo made the motion, seconded by Commissioner Cutler, and approved by a vote of 3-0. The meeting was adjourned at 7:31 pm. Maria Pace Land Use Board Secretary Robert Galvin, AICP Planning Administrator 9