by Meg Yergin -
The Mamaroneck Observer is increasing its reporting of land use issues in the Village, including background information on code enforcement and land use boards to help our readers understand this important subject. This first article was written by our new volunteer writer, Meg Yergin, who previously served on the Village Zoning Board of Appeals.
On February 12, 2025, the Planning Board will review an amended site plan for the construction of an almost 12,000 square foot single-family home, swimming pool and other structures at 1011 Greacen Point Road. The original site plan for this project was approved by the Planning Board on July 10, 2024. See HERE. The project also received a consistency determination from the Harbor Coastal Management Commission (HCZMC) on June 18, 2024. See HERE and an area variance from the Zoning Board of Appeals (ZBA) to build the house 8.92% larger than allowed by the Village Zoning Code on April 4, 2024. See HERE.
Neighbors informed the Village of their significant concerns regarding the project through emails and meetings with the Building Department prior to the issuance of the building permit on December 12, 2024. These concerns included, among other things, the construction of a retaining wall planned to be built inches away from a neighbor’s property, the removal of over 15 trees - many of them to be cut down specifically to make way for the wall, and the impact of flood mitigation measures on surrounding properties.
Original Site Plan Review
According to the Village’s consulting engineer in a memo dated January 12, 2025 the Planning Board did not discuss the design or location of the wall, or its potential impact on the neighboring property during the original site plan review last summer. See HERE. However, following the engineer’s recommendation, the Planning Board included a condition in its resolution that “The Applicant must submit plans for the structural retaining walls along the driveway at the edge of the pavement prior to obtaining a Building Permit”.
During the review of the original site plan, the HCZMC and Planning Board did discuss flooding concerns, and it was recommended that the entire house be built 18” higher as a flood-mitigation measure. This resulted in the retaining wall originally planned to be approximately 4 ft high increasing in height to over 6 feet with a protective barrier on top.
Requests Sent to Deny the Building Permit
On October 31, 2024, Robert Gaudioso, an attorney representing residents living close to the project, wrote a letter to the Village’s acting Building Inspector James Contini requesting the pending building-permit application for the project be denied. This letter cites the plan to construct an:
approximately 7.5-foot-high foundation wall…within one foot of the Property line, looming over our clients’ property and driveway. The location and height of the Foundation Wall is a clear public health, safety, and welfare hazard to persons and cars toppling over the wall and plummeting onto our clients active driveway. See HERE.
Gaudioso also argued that the proposed retaining wall is a “structure” and “building” under the Village Code, and as such must be set back 20 feet from the property line to comply with Village Code minimum yard requirements. An area variance approved by the ZBA is thus required to place the wall in the location designated on the site plan.
In the absence of a full-time Building Inspector employed by the Village, Village Manager Kathleen Gill signed a building permit for the project on December 12, 2024. See HERE.
Gaudioso wrote another letter on December 27, 2024 to Acting Village Building Inspector Frank Tavolacci requesting that the building permit be stayed due to the retaining wall, and the matter to be referred back to the ZBA as the “size and location of the project has materially changed since the site plan approval was issued by the Planning Board.” See HERE.
Material changes that Guadioso identified in his December letter included the shift of the development 5 feet further into the wetlands buffer, and revisions to the reported setback distances. Guadioso also argues in the letter that Village Manager Gill was not authorized to sign the building permit as she had not performed the required checks to ensure compliance with the Uniform (Building) Code, Energy Code and the Village Code.
Neighbors filed a formal appeal of the building permit with the ZBA on December 16, 2024. See HERE. They agreed to adjourn that appeal pending the outcome of the upcoming amended site plan review by the Planning Board scheduled for February 12th.
Construction Halted
On December 30, 2024, neighbors were informed by Gill’s office that the property owner agreed to stop all construction after being told by the Building Department that the retaining wall referred to on the site plan was not approved.
The Building Department issued a new Letter of Determination for the project on January 16, 2025. (A Letter of Determination is a report by the Building Inspector of the steps necessary to bring a project into compliance with the Village Zoning Code.) The January Letter of Determination stipulates an amended site plan approval. See HERE.
The revised site plan that was submitted for the Planning Board’s upcoming review on February 12, 2025 lowers the proposed retaining wall from 6’6” to 3’6”.
Neighbors’ Fear of Increased Flood Risk
In addition to the retaining wall, neighbors are also concerned that recommendations made by the Planning Board and HCZMC during the original site plan review could increase flood risk to surrounding properties. Those recommendations include raising the new building an additional 18” as a flood mitigation measure for the occupants of the new home. See HCZMC 5/15/24 meeting HERE time stamps 44:14-45:3 and 46:18-47:16.
Neighbors reached out to the Village to ask why the land use boards focused solely on mitigating flooding for the house at 1011 when requesting it be raised, without considering how raising the entire house, garage and driveway might impact surrounding properties.
Neighbors have also voiced concerns about the soil tests completed as part of the storm-water management review as the tests were conducted during the summer and fall during a period of drought, not during a period of normal rainfall.
Public Comment Not Required on February 12th
Under New York State law, Planning Board site plan approval does not require a public hearing. It is up to the Planning Board Chair to decide if the public will be allowed to speak or submit written comments into the record.
The property owner’s attorney Kristen Wilson has advised the Planning Board to confine the amended site plan review to just the retaining wall. Wilson wrote to the Board: “As this is an amended site plan approval with minor modifications to specifically address concerns related to the height of the southern retaining wall, the jurisdiction of the Planning Board is limited to the proposed changes related to the retaining wall.” See HERE.
It is unclear if the Planning Board will allow public comments at the upcoming meeting on Feb. 12, and if the Board will discuss any other aspects of the project in addition to the retaining wall.
Residents’ Right to Appeal and the Costs
In New York State, residents who don’t agree with a zoning decision made by the Building Inspector and who are injured by it may submit an appeal to their local ZBA. They must submit the appeal within 60 days of the issuance of the decision. Examples of Building Inspector decisions include issuance of Building Permits and Certificates of Occupancy.
In accordance with the fee schedule set by the Village of Mamaroneck Board of Trustees, residents must pay $195 and put $1,000 into an escrow account to cover potential consultant costs to dispute a Building Inspector’s decision. See HERE Chapter 23. These financial hurdles could prevent residents who cannot afford them from challenging the Village’s decision. They would have no other recourse as under New York State law, Building Inspector decisions must first be reviewed by the ZBA. Residents cannot bypass the ZBA to go to a different authority.
When a challenge is filed, the ZBA must determine what decision the Building Inspector should have made. The ZBA’s ruling overrides the Building Inspector’s zoning decisions. (The ZBA does not hear appeals of decisions regarding the Uniform Fire Code or the Building Code.) Only the ZBA can definitively interpret the zoning law. Neither the legislative body nor any other officer or body has that jurisdiction. Whenever the ZBA makes a determination that interprets a provision of the zoning law, the determination should serve as precedent for any future actions involving that particular provision, until and unless the legislative body amends the provision. See HERE.
An appeal of the ZBA’s ruling can only be made to the New York State Supreme Court. The Board of Trustees, Village Manager, Village Attorney and other land use boards do not have the authority to reverse or modify a ZBA resolution.
