“Was this a lost opportunity?”
That was the essential question posed by Trustee Justin Arest during a public hearing July 13 on proposed code changes to limit the perceived bulkiness of new or rebuilt houses in Scarsdale.
The public hearing comes after three years of discussion about bulk and nonconformity in the village. Last November the board of trustees voted to refer five proposed code changes to the planning board for consideration. The amendments would change chapters 310, 77 and 251 of the village code by reducing the maximum permitted height of roofs from 35 feet to 32 feet, reducing the floor area ratio (FAR) side yard bonus by 30%, and would eliminate the requirement that additions could only be added to the rear of the house to use the side yard bonus. The amendments would also clarify language that the FAR garage credit applies only to the square footage of the floor level of the garage and not the upper floors. In addition, the amendments would eliminate the need for single family residential projects involving more than 15,000 square feet of gross floor area to be reviewed through a special use permit from the board of appeals, and instead those projects would require the planning board to approve site plans.
Wrestling with what the definition of “bulk” constituted, Arest said during the hearing that he had asked whether instead of taking an incremental approach, the village could have tackled bulk in a more “outside the box” manner and thought more creatively to define it.
“Some have said in the past that an incremental approach is appropriate in a myriad of different places in village government. I tend to agree with that. This is one of those areas where an incremental approach and the idea that potentially we would have to come back again after a year or two and tweak it … I don’t think that’s wise,” said Arest.
Jeffrey Watiker, chair of the Zoning Board of Appeals, said it would have been “a mistake to have tried to reinvent the wheel, even if ultimately you might’ve gotten to a better place.”
Watiker said using out-of-the-box solutions to tackle bulk ran the risk of breaking something that wasn’t broken and that the interests of the homeowners and the developers were so high that a radical change would never have gotten implemented.
“I know if I was a developer I would be very nervous if the heads of the zoning board and the planning board started talking about, thinking about new ways to control land use size in Scarsdale, because I don’t know where it would head and … a lot of people might lose out,” said Watiker. “I don’t think that would have been that helpful.”
The village completed a random sampling of 33 new homes and 32 additions between 2014 and 2017 to see how the new codes changes would impact new houses and additions.
As presented by Village Planner Greg Cutler at the hearing, if the maximum permitted height of roofs was reduced from 35 feet to 32 feet, 9% of new houses and 12.5% of additions would be nonconforming.
Though 12.5% of the additions would be nonconforming, 25% of the additions in the sample didn’t have any data on file regarding height.
If a homeowner had an existing roof above 32 feet and was looking to extend the roof, according to the new law, the homeowner wouldn’t be able to extend the roof to the same height as their existing roof. The homeowner could apply for a variance, though, which Watiker said if someone came to the zoning board of appeals with this situation, then it might be a starting point to obtain a variance.
“But, if you came in and wanted to build a new house that was over the rule or put on an addition which is seated higher than your existing house, you’d probably be one step behind,” said Watiker.
If the side yard setback bonus was reduced and combined with the allowance for additions beyond the rear of the house that utilize the side yard bonus, then 53% of new homes would be nonconforming and 8% of additions would be nonconforming. According to the data analysis prepared by the planning department in February 2020, 97% of sampled houses took some or all of the bonus and 41% of additions took some or all of the bonus.
During the hearing, resident Brian Nottage said he was struck that the law was “targeting something specific by doing something very general.” If the issue was that new houses were too big, then the law should be targeting new houses, he said.
“I’d like to see something more targeted. I don’t know why existing homeowners should be penalized, because what that incentivizes is teardowns and a teardown will always … be more efficient on a square foot basis than trying to renovate an existing home,” he said, also referencing how his smaller house on a smaller lot could be hindered by the new rules.
Village Attorney Dan Pozin said he would investigate whether the laws could be targeted.
Watiker said the five amendments were not meant to unnecessarily limit smaller houses on smaller lots and were intended to focus on newer homes on larger lots.
“Will there be some people who probably are limited? Yes. But that’s certainly not how it’s focused,” he said.
Though he initially questioned if better rules could be implemented, Arest said he had no intention of voting against the code amendments. Trustee Randy Whitestone said he understood both Arest’s arguments and Watiker’s comments, and said he thought the code amendments were targeted and specific.
Trustee Jonathan Lewis said he didn’t feel comfortable second guessing the work that was already completed and didn’t want to ask volunteers to rethink if they could have done it better.
“I think we can always do things better,” said Arest. “I’m always interested in challenging.”
The board adjourned the public hearing to the Aug. 10 meeting agenda.