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By Melanie Lekocevic

Capital Region Independent Media

COXSACKIE — The village’s zoning board of appeals requested additional information from the developer of the Newbury Hotel project in downtown Coxsackie.

The board met June 6 to review the application filed by developer Aaron Flach for an area variance for the project.

The hotel, which is partially constructed on South River Street in the village of Coxsackie, deviated from several components of the original approved site plan. The area variance under review by the zoning board of appeals is for the height of the building.

Originally approved for four stories, the developer constructed five stories, exceeding the village’s building code of 50 feet by an additional 15 feet.

The village’s planning board is conducting the mandated state environmental assessment form under SEQRA, or the State Environmental Quality Review Act, and is in the process of designating itself the project’s lead agency. Once the planning board completes the environmental assessment, it will be up to the zoning board of appeals to determine whether the requested area variance for the height of the structure is to be granted.

Other elements of the partially constructed building veered away from the site plan, but only the height of the structure requires an area variance, village attorney Robert Stout, of the Albany-based law firm Whiteman, Osterman and Hanna, said.

“There are eight ways the amended site plan deviates from the original site plan application that was approved,” Stout said. “There are eight points highlighted in the planning board application, but those aren’t necessarily things that need area variances. It’s just one variance that is needed — the height variance.”

In reviewing the area variance application, the ZBA must balance the benefits to the applicant with the possible detrimental effects on the community, Stout explained.

“The zoning board of appeals is required to take into consideration the benefits to the applicant if the variance is granted and weigh against it the detriment to the health, safety and welfare of the neighborhood and community if that variance is granted,” Stout said.

The board must consider five criteria in its decision.

“In order to reach that determination, there are five factors that the village law would have us consider,” Stout said. “Number one, whether an undesirable change will be produced to the character of the neighborhood or a detriment to nearby properties would be created by granting the area variance. Two, whether the benefit sought by the applicant can be achieved by some method feasible for the applicant to pursue other than an area variance. Three, whether the requested area variance is substantial. Four, whether the proposed variance will have an adverse effect or impact on the physical or environmental conditions in the neighborhood or district. And five, whether the alleged difficulty was self-created.”

Zoning board of appeals chairman Sal Bevilacqua said the board must consider the viewshed and the impact of increasing the height of the building from the 50 feet that is permitted under the village building codes compared to the 65 feet the hotel has been built to.

Mary Beth Bianconi from Delaware Engineering, which works on behalf of the village, explained how the state and the Department of Environmental Conservation evaluates viewshed impacts.

“It’s important to note that the DEC policy is focused in large part on viewsheds that are publicly accessible or that might be particularly damaged by a change in the viewshed,” Bianconi said. “The policy is written around the idea that a scenic road or a scenic byway or a historic resource — what would the visual impact on the visual environment be?”

Examples in the case of the Newbury Hotel would be the impact on the viewshed from state-owned Riverfront Park, the Reed Street Historic District and other nearby locations. The ZBA can also look at the impact on the surrounding neighborhood.

Sterling Environmental Engineering, the firm hired by the developer to work on the amended project plans, submitted assessments of the viewshed impacts within a half-mile radius of the hotel — bordered by the intersection of Route 385 and Mansion Street, Riverside Avenue by the marina, the intersection of Molly White Drive and Beechwood Drive, and a portion of Sunset Boulevard.

Bevilacqua pointed out that portions of the so-called “Dolan Block” near the hotel also do not conform to the village’s 50-foot height maximum.

Bianconi said those buildings were already built when the current building code was put into effect.

“The Dolan Block was there and was taller than 50 feet when the zoning was adopted in 2008 that said the height limit was 50 feet, so from that perspective, the Dolan Block creates an existing nonconforming area dimension,” Bianconi said. “That is not uncommon with a historic structure.”

Bianconi suggested the board look at several criteria in their deliberations, including views of the hotel from all different directions, what people would see when they view the completed fifth floor of the hotel, and a line-of-sight analysis from surrounding streets.

“If I am standing on Ely Street and I look to the river… what is my line of sight to try to look at the water? What is in my way and what is not in my way?” Bianconi said. “The issue before us is visibility to the water and/or to the other side of the river. We can have a line-of-sight analysis to get an idea of rather than looking at publicly accessible views, like from Riverfront Park, but the character of the village — what can you see from Ely Street or Church Street or some of these other vantage points… I think some line-of-sight analysis from some of these sensitive areas would be helpful for the board.”

She also recommended having the applicant submit a business model for the restaurant, which is what would be housed on the disputed fifth floor, considering factors such as the hours and schedule of the restaurant, would it be seasonal, would it be open to the public or only hotel guests, and would there be amplified outdoor sound, Bianconi suggested.

She also recommended the board consider conditions that could be put in place in the event the building is eventually sold to another owner.

Zoning board of appeals member Christopher Chimento asked if the viewshed as seen from private properties in the area could be considered.

“When you buy property, technically you own the air above it, but you don’t own the air in front of you that is on someone else’s property,” Bianconi responded. “The only way to preserve and protect your view on someone else’s property is to buy the property and prevent someone from building something there. As sad as it may be, you are not guaranteed your view.”

Stout said the board can request the applicant to submit photos from private properties, but the developer would have to request permission from the property owner.

The attorney added that just because the building can be seen from a specific property or their view is changed doesn’t mean the variance must be rejected.

“You have to weigh whether it is a detriment to a particular property,” Stout said. “If there is a detriment doesn’t mean it is dispositive — ‘I can see it or I can no longer see the water, therefore the variance must not be granted.’ It doesn’t work that way.”

Mark Millspaugh, president of Sterling Environmental Engineering, said the materials submitted by the firm look at viewshed impacts from public areas.

“When we followed the public guidance for the visual assessment a few months ago, we followed the methodology and we inventoried the sensitive public spaces within a half-mile radius,” Millspaugh said. “What we were focusing on is the community at large — not necessarily a single property or two on Ely Street… The findings go a long way to showing that in terms of affecting the character of the community, there really is not a significant adverse visual impact. That is the takeaway from these pictures.”

The board compiled a list of materials the applicant will be expected to submit before the board’s July meeting as the review process continues.