EASEMENT APPLICATION STIRS DEBATE OVER PRIVATE USE OF VILLAGE RIGHT-OF-WAY
Updated September 10, 2014 ( Original Post September 7)-- Discussions over an easement application at last week's Village Board Conference, and this past Monday night's meeting, raised important questions for the board and the community to consider regarding not only when it is appropriate for the Village to grant use of a village right of way for private purposes, but also of the proper process for obtaining such approval, as well as the extent to which the village ought to enforce all right-of- way violations, no matter how small or inconsequential in nature. Ultimately the application was turned down in a split vote.
A Carpenter Avenue resident had applied to the Board for an easement to use a Village right-of-way (an “unpaved area in between a resident’s property and the paved portion of a village street”) next to her driveway on the side street, The Drive, for the permanent placement of two containers to store garbage cans. The Board took up the request at its September 2nd Board Conference, after earlier in the day having received a petition signed by nearly 200 residents urging the Trustee and Mayor to deny the application on the grounds that granting the easement would set a dangerous precedent, and that the existing village code be enforced.
According to a May 28 correspondence to the Village Board requesting the easement, the Carpenter Avenue resident said she has kept two large containers, that sit atop two low platforms, on the village right-of-way since she moved into her home eight years ago, just as, she said, the previous owner had done for as long as she could recall. The property, she explained, sits on a steep hill, that her driveway is utilized for parking cars, and that a retaining wall several feet high along her driveway prevents the use of the other side of the wall for use of storing garbage containers. Additionally, she stated that moving the bins to other locations would create certain hardships and personal safety issues, and to move the bins three feet inside the property line, as village code requires, would necessitate the removal of a large tree. “The receptacles,” she wrote, “hold the cans in a neat and orderly manner” and that the current location of the bins would “have the least impact on the community.”
“The relief I am requesting,” the resident further asserted, “comes in direct response to several tickets I have received for use of the Village right of way.” She questioned the enforcement of such code violations only in response to complaints, and with the numerous right of way code violations that she said exist throughout the village, she argued that this was “clearly a case of ‘selective enforcement’ and not appropriate.” She said that it appeared she was “being singled out” and that the situation raises 14th amendment “equal protection” concerns.
Additionally, the resident suggested that the code be amended to allow residents use of the Village right-of-way, “considering," she said, "the various and numerous violations of the code and the fact that the code is only going to be enforced when there is a complaint.”
Six months earlier, in December 2013, the Buildings Department had sent a letter to the homeowner notifying her that the village had “received a number of complaints regarding the storage bins,” and that “reports of continued open bins, raccoons ripping apart garbage and subsequent garbage strewn on streets have been alleged.” As a result of a written complaint, the notice continued, the Building Department was advising the resident of two sections of village code. The first, regarding ancillary structures on one’s property, states that storage bins of this size, must be at least three feet from ones property line. The second section, regarding preparation for garbage collection, states that that “the container shall be kept in a sanitary condition. The covers shall be kept secure and fastened at all times, except when depositing or removing garbage, so that flies, insects, dogs and other scavengers cannot gain access.” The letter concluded, “Please have these issues attended to.” On February 3, 2014 a “Direction to Remedy” was issued notifying the resident that if the violations of village code were not corrected within ten days, an appearance ticket could be issued.
In March, the issue was raised publicly for the first time when resident Raymond Derrien, who lives directly across the street from the storage containers, following up on a letter he submitted to the board a couple of weeks earlier, spoke at that month’s board meeting expressing frustration that despite a “direction to remedy” and tickets having been issued, that the resident continued to keep the storage containers in the village right of way. In the letter he stated that for “more than a year he had sought to resolve the problem.” Asserting that the containers were an “eye sore” as well as a health hazard attracting vermin, he cited other sections of the village code which he believed the Carpenter Avenue resident also to be in violation. They include a prohibition on the erection of any structure into a Village right-of way without first obtaining a building permit from the Superintendent of Buildings; a second which states that “no refuse shall be placed for collection at any time earlier than the evening before such collection is scheduled” and that “all containers shall be promptly removed within a reasonable time after collection has been completed and shall be stored in a safe and sanitary location which will not create a visual nuisance to neighboring property owners; and a third section that imposes similar requirements for placement of recycling containers.
Mr. Derrien also argued that “if an easement is offered what kind of appalling precedent will this establish for the village? Can you imagine what Sea Cliff would look like if everyone were permitted to install permanent garbage containers at the curb?” He concluded, “I trust when this issue comes before the Board of Trustee’s that they will apply the code that is already written. And if you have a meeting for approval, that the meeting be open to the public.”
In July, Mr. Derrien and other residents spoke up at the Village Board meeting questioning why, when a village code is violated, the village could not take action by removing the containers, as is the case when the police tow a car or when a stop work order is issued when someone does work on a home without a permit. The Trustees replied that the individual has due process rights, and that there must be a finding by the village court that the person is in violation of the law, before such an action could be taken.
Later in July, the Village court issued a continuance on holding a hearing on the violations of village code, apparently, as was stated at this past Tuesday evening's board discussion, to await the outcome of the Village board’s determination on the easement application.
At last Tuesday’s Village Board Conference, Trustee Kevin McGilloway asserted that the court's decision regarding code violations and the Board’s action were two separate matters and should in no way be tied together. There appeared to be general agreement with Mr. McGilloway on that particular point.
Additionally, Trustee McGilloway expressed concern that the way the process was playing out set a bad precedent. “There is a precedent danger where the application procedure is abandoned and people come to the conclusion that if you want to do something – do it and wait until its approved. It’s a bad precedent.”
With regard to the merits of the easement application itself, three of the trustees offered comments questioning the appropriateness of the easement, with two saying outright that they opposed approval of the application.
When Mayor Bruce Kennedy questioned if there was a viable alternative to placing the garbage bins where they currently are without moving the retaining wall, Trustee Carol Vogt said that she had looked at the property and believed there were other places to put the containers. To support her point she said that when the resident had recently replaced the plastic containers with new wooden ones, the old bins had been kept in the driveway for a considerable amount of time, and that there seemed to be plenty of room. She said that she has had plans drawn up by another resident for the homeowner.
Mr. McGilloway said to Ms. Vogt, “You think there is a viable alternative in the driveway?” Ms. Vogt replied, “Yes – I could not find a rationale for the easement.”
Mr. McGilloway asked, “Do any other members feel there is a basis for an easement? I don’t.”
Trustee Elena Villafane said that she had only very recently received the application and supporting documentation and had not the opportunity to examine them closely, and said she would like to have that opportunity before deciding on the issue.
Trustee Edward Lieberman said based on his assessment, “there could be other places they [the bins] could go without much intrusion on bringing them to curbside. As the house is situated, there seems to be plenty of room by the kitchen steps.”
“There are plenty of people who have to roll their garbage cans to the curb,” added Trustee Vogt.
With any application for an easement to use a village right of way, the village code states that the board “shall” submit the application to the Fire and Police Departments, the Department of Public Works and the School District so that each has the opportunity to offer objections in case the easement could potentially interfere with their operations. The agencies have 35 days to respond after receiving the application.
Mayor Bruce Kennedy said that he would not want to vote on the application until the board had heard from the agencies.
Village Attorney Brian Stolar stated that even if none of the four agencies objected, the board is fully within its authority to deny the application for other reasons.
The question was then raised whether the agencies’ input was moot, since it appeared that at least three trustees believed the easement was not appropriate in this particular case. However, after some discussion, the comment was made that it would perhaps be more prudent to allow the four agencies the opportunity to weigh in, lest the waiving of the 35 day requirement be used to challenge the board’s denial of the easement. Although the application letter was received by the Village Clerk on June 4, the official village permit application for the easement was not dated and signed by the applicant until August 13, and it appeared that the application had not yet been sent to the agencies. The 35 days would not begin ticking down until that point.
Trustee McGilloway said that it appeared that the votes were there to make a decision against the application that evening but would not object to postponing the vote. Trustee Vogt said that she believed that the 35 days should pass before the board took action. While that time period would extend well beyond the date of this Monday’s meeting, the board raised the possibility of reaching out to the school district and the three departments that week to request a response and speed up the process.
At its meeting this past Monday night, the discussion resumed. Trustee Villafane questioned whether the containers were in fact on the village right of way, pointing out that a survey submitted by the applicant showed them within the property line. Additionally she questioned what types of structures they were - whether they were "ancillary" or "accessory", and whether the Board of Trustees even had jurisdiction over the matter. If on the property, they would be ancillary, and the easement would be unnecessary and outside the board's purview. If in the right-of-way, then they would be considered "accessory" structures, and in this case, an easement necessary.
Building Superintendent Drew Lawrence was then called into the meeting, where he explained that based on his calculations the bins were in fact in the right of way, which he said in this particular case extended as much as seven feet from the pavement to the property line.
The Board then questioned Mr. Stolar once again on whether the 35 day requirement for allowing the four agencies to submit their objections was necessary if the application was going to be denied, Mr. Stolar said it was not - that it was only necessary if the board was going to grant approval. Trustee Vogt then made a motion to disapprove the application, which was seconded by Trustee McGilloway. The two Trustees, along with Trustee Lieberman voted for disapproval; Trustee Villifane voted against; and, Mayor Kennedy abstained.
Later, during Public Comment, Mr. Derrien asked what was next step in the process - whether the Board's vote meant that the containers would be removed. Mr. Stolar replied that it now goes to Building Department, but, Mayor Kennedy added, the Building Department did not have any authority to actually remove the containers themselves. Additionally, the complaint filed against the Carpenter Avenue resident still awaits a Court ruling, which if it is decided that the resident is in violation of the village code, may provide some sort of remedy.
In response to request for comment from Northwordnews before Monday's meeting, Mr. Derrien, who had authored the petition, and had, with the help of two other residents, gathered the signatures said "the issue before the Board of Trustees is about the presence of two unsightly receptacles that are located on village-right-of-way and the enforcement of Village code. If an easement is granted in this case, garbage bins placed at curbside will proliferate throughout the Village of Sea Cliff.”
Northwordnews also reached out by phone and e-mail to the Carpenter Avenue resident for comment, but did not get a response.
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