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Written by Joanne Wallenstein

Published: 14 October 2015

Created: 14 October 2015

Last Updated: 14 October 2015

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Steve Rakoff demonstrates pervious paving material

The Scarsdale Village Board had passed a moratorium on the use of gravel to meet lot coverage restrictions in February 2015. The moratorium was enacted to give the Board time to study the issue and hold hearings.

Builders, realtors and owners of large properties objected to the law because it would prevent them from counting gravel as a pervious surface – like grass – and therefore limit their ability to install impervious surfaces such as pools, tennis courts, patios and long driveways that count in the lot coverage calculation.

After many lengthy hearings, all six voting members of the Board decided to vote against the provision – primarily because they saw it as a roundabout method of limiting home sizes.

Trustee Callaghan looked back at Scarsdale history and noted the importance of weighing property owners' rights against the communities need for open space. He recalled an application from Fox Meadow Estates, Inc. to build a 280-unit apartment building in Butler Woods in Fox Meadow.

Trustee Stern said that the amendment was proposed after the board received "many complaints of large houses with small setbacks on small lots." He said, "The moratorium was in response to village stakeholders who were being outgunned in their own neighborhoods. But as this went along, there was a huge outcry from other stakeholders and people who wanted to build structures on their properties."
However he said, "I would like to find another way to limit house size."

Referring to the gravel, Trustee Deb Pekarek said, "There are two conflicting standards in village code. We are here to consider if gravel should be considered impervious. In 33 municipalities surveyed, all but one consider gravel impervious.
But, does this code change do what we hoped it would do? If implemented will it reduce the appearance of bulk? It does little to reduce the appearance of bulk.
Even the consultant thought that the gravel change will not impact home size."
She continued, "While I believe a FAR study would be costly I hope we continue the conversation in the next few months."

Marc Samwick told the audience that their "input has been valuable and that zoning changes are some of the most important issues that come before the board." He called for a "wider assessment of zoning," and for the board to "address overbuilding by addressing zoning – FAR, maximum height, and maximum setbacks." About the proposal, he said, "there are too many unintended consequences. I cannot support it and will vote to appeal the moratorium."

Carl Finger offered some observations on the process. He said, "I appreciate the feedback we have received and the work of our consultant and our Village Planner Liz Marrinan. Sometimes the tenor of comments directed at them was not appropriate."

He continued ... "There is little doubt that expansion and overbuilding of lots must be faced if we are to maintain the community aesthetic. The combination of teardowns and expansions infringe on the streetscape, land, open space, and light."

He then referred to a passage of a letter from Melinda Witmer that was read by Dawn Knief at the previous hearing. The letter equates the proposal to racism and says, "I will point out that those same "maintain character" words are the kinds used in many instances – including the pre-Civil Rights South – to try to prevent change to communities in order for a small and opinionated few to tyrannize others. These are the words used to maintain segregation and keep people of color and women from sharing buses and golf courses. Our neighborhoods are in constant change."

Finger said, "Equating this to racism was disturbing. It does a disservice to those involved and it demeans all of us and anyone who has suffered from racism."

He continued, "The premise that the board predetermined their decision was unfounded. The board proceeded in an open and deliberate manner. The claim that there were not enough hearings was unreasonable."

"I did not appreciate the inappropriate displays of showmanship and lack of respect which I hope will not be repeated. I was also unmoved by threats of lawsuits, loss of developers and the reduction of property values. These are the same arguments used in all land use discussions. The idea that the "sky is falling" has never held water when put to the test."

Finger opted to vote against the proposal because he said, "Overbuilding on small lots must be addressed but I don't think it will grant sufficient relief."

The Mayor spoke last, and he too expressed concerns about over development, saying that if market forces and the rights of property owners are the sole determinants, "new construction presses to the limits of what the building code allows." However he believes that redefining gravel would do little to address the issue. He did say that it would be "worthwhile to continue the discussion of this issue (open space and community values) to determine whether or not there is community interest in making some other sorts of refinements to the Code. "

His comments in their entirety are published below.

The trustees then voted against the code change and to appeal the moratorium. An attorney, a resident and several developers commented and thanked the Board for listening. Though the builders previously claimed that the Board was not listening, after the vote went their way, their tenor changed and they lauded the board and each other.

Builder Steve Rakoff, who had vehemently opposed the proposal said, "I am proud of this inclusive process. Hopefully we can continue this process. Realtors and builders are a great asset! It is so important that we can get together and get this right."

David Fenton of Aspen Road, who runs Twin Oaks Construction said, "I look at the audience and the builders and what is being built. We have fantastic builders here
Ron, Steve Rakoff, Lee Handler, ...these are great builders. The homes that all of us have done are some of the nicest homes that have been built in a long time. We put our heart and soul into it. We are very involved in the decisions that take place and put social responsibility into the product."

One lone speaker took the mike to ask the Trustees to continue to address the issue of overbuilding in Scarsdale. Cay DeSa of Lawrence Road in Heathcote said, "I live around the Heathcote School. All the English cottages are being replaced by large houses on small lots. We are beginning to see more in the pipeline. The problem is the big house on the small lot. I am asking you to please continue looking into the heart of the issue. It's distressful to walk down the street and see houses that just don't fit. They are blocking out light and blocking out air. Please maintain the village in a park."

Here are Mayor Jon Mark's comments in their entirety:

I have been persuaded that the proposal to change the definition of gravel in the Village Code should not be adopted. The principal factor that leads me to this conclusion is that the proposal does not really address the issue that seems to be at the core of most discussions of the topic of managing development in the Village. That core issue which we as Board members hear most frequently is whether our current building code permits the construction of homes with a size, height and bulk that is out of character with the neighborhoods in which they are situated.

Without addressing that issue at this moment, it now seems clear to me both in terms of what has been said and presented to this Board, as well as a recent drive around the Village, that the proposed change in the definition of impervious surfaces would not address this issue – it was not intended to. Rather it appears that much of the impact of the proposal, if adopted, would fall on larger properties in the Village and would inhibit the building of accessory structures such as pools and tennis courts. It might also impact smaller properties eliminating some flexibility in the event an owner wished to add a room to an existing home. The proposal does not, nor was intended to, address the issue of the size, height and bulk of homes – although as an additional factor considered in designing a home it might have that effect as well. However, a drive around the Village reveals that where a home might seem to appear oversized as compared to its neighbors – and admittedly, this is a subjective judgment -- it is not because the house has a gravel driveway. To the contrary, such homes for the most part have asphalt driveways. Therefore, because the proposal does not address what I believe seems to be a core development issue for some, I intend to vote against adopting the proposal. Similarly, I intend to vote for the repeal of the present moratorium that treats gravel as impervious.

I do, however, want to take this opportunity to comment on the issue of managing development in the Village. One of the myriad issues that arise in the context of development is open space. The subject of open space can be on the table directly when an application triggers a requirement to assess a fee for parks, or indirectly as the result of applying Village code provisions that address lot coverage, building size and storm water management. Without a doubt, as the Village develops, perhaps a better term is evolves, and housing stock is rebuilt or remodeled, open space is sometimes lost. This sort of change is inevitable so long as the Village continues to attract new residents due to the quality of our schools and the superb environment we have worked hard to create and maintain as a place to live. To attempt to simply halt this evolutionary process is unrealistic and likely counterproductive. Housing stock must be renewed and revitalized. Change is constant.

That having been said, it also seems counterproductive to the efforts presently made to maintain the desirable physical qualities of the Village to take a view that market forces and the property rights of individual land owners should be the sole determinants of how we manage our open spaces. Build it and they will come is a powerful mantra, but left unaddressed, pursuing it could easily lead to a Village in which houses are increasingly crowded together as new construction presses to the limits of what the building code allows. Some residents that we hear from feel that certain neighborhoods or streets have already reached that point.

In fact, we do not leave the evolution of the Village unaddressed. Significant legitimate community concerns – and community values – are already embodied in our building code. Code provisions addressing set-backs, floor area ratio, or FAR, minimum frontage requirements, restrictions on the height of certain fences and retaining walls, our storm water management laws and regulating the decibel level permitted for emergency generators are a few of the numerous instances in which an individual's rights to develop a piece of property is managed and constrained to a significant degree in light of legitimate community interests.

Critics of the present proposal note that should it be adopted it would have a negative effect on property values. This sort of argument might be raised to any proposal that seeks to manage development in some fashion. To this point I note that there are myriad factors ranging from the property itself, to local matters to national and even international matters that affect property values. Any one change in our building code may or may not negatively affect property values but arguments that focus on one of many possible factors can be misleading and among other things, ignore this larger economic reality. Scarsdale does not exist in a bubble. However, Village building code provisions that reasonably address a legitimate community interest in open space, for example, are in our Code and are clearly supportable despite the fact that they may restrict the exercise of individual property rights.

Open space is what the present proposal was really about. As I mentioned, I am not in favor of adopting it. However, there remains a question as to what to do, if anything, going forward. We can leave the Code alone, turn our attention to other matters and simply allow development or evolution to proceed as is. Based on what is observable this may, over an extended period of time, lead to the filling in of our remaining open space with structures. Or we can take a further look at our Code and attempt to modify it in some other way to address directly the question noted. There will be critics of any changes that might be proposed and undoubtedly some of the criticisms will echo the criticisms we have heard to the proposal on the table today. But I believe we should make an effort. Some residents who have spoken in prior Board meetings or who have written us on this topic have also made that suggestion.

We all benefit and property values benefit from the spaciousness of our physical surroundings. Based on what this Board hears from some of our neighbors, that community value deserves some more attention. For these reasons, I believe it would be worthwhile to continue the discussion of this issue to determine whether or not there is community interest in making some other sorts of refinements to the Code. The answer may be difficult to arrive at and ultimately may depend on what we as a community want to leave to those who come after us.

You can watch the meeting in its entirety on the Scarsdale Cable Channel here.