Greacen Point Zoning Compliance Reviewed by ZBA

by Meg Yergin -

The appeal of the building permit for 1011 Greacen Point Road continued at the Zoning Board of Appeals (ZBA) meeting on November 6, 2025.  As previously reported, neighbors of the project claim that the building permit was issued in error due to zoning non-compliance issues and inaccurate information provided by the applicant in 2024.  See previous article HERE.

The ZBA is now reviewing the zoning compliance of the project to determine if additional area variances are required. The appellants have specifically raised issues with the size of the home and number of floors.  They have also asked the ZBA to consider proposed structures located within the minimum yard setbacks and the building’s height.

FAR Strategy Discussed with Building Inspector

It became clear during the meeting that the property owner’s team had multiple discussions with current Building Inspector (BI) Scott Ransom following the appeal’s initial hearing in September that were not shared with the appellant.  The property owner’s team repeatedly called upon the BI during the meeting to confirm new zoning determinations regarding Floor Area Ratio (FAR) compliance.

The appellant’s attorney, Robert Gaudioso, told the ZBA that he had not previously been aware of those communications.  He requested and received Ransom’s email exchanges with the property owner after the meeting.  See HERE.

ZBA Ultimate Arbiter for Zoning Determination

Regardless of the BI’s new determinations, it is now the ZBA’s responsibility to conduct a de novo review of the application under NYS Village Law 7-712(B).  The ZBA has the responsibility to review all zoning compliance aspects of the project and make a determination that will supersede those made by the BI as clarified in Section 342-60 of the Code.  See HERE.

Both the appellant and the property owner sent new submissions to the ZBA outlining their positions for the November meeting.  In their submission, the property owner included revised site plans despite the ZBA’s direction that the review should focus on the plans that were current at the time the appeal kicked off in September. See HERE and HERE Gaudioso November submission and 1011 GPR submission HERE.

The Size of the Home Compared to the Size of the Lot

Floor Area Ratio (FAR) is a zoning tool that restricts a building’s size relative to the lot size.  It helps preserve neighborhood character by preventing disproportionately large structures.  It also ensures adequate light and air for surrounding properties by limiting the overall mass of buildings.  See HERE.

On April 4, 2024, the property owner of 1011 Greacen Point obtained a FAR variance from the ZBA to build a home 8.92% larger than the maximum allowed for the project’s lot size.  See HERE. The neighbors are now asking the ZBA to reconsider that decision claiming the property owner provided inaccurate and misleading information.

The appellant sent the ZBA marked up versions of renderings the property owner used in the 2024 FAR variance request to show how they misrepresented the impact the size of the home would have on the neighborhood.  (In granting area variances, the ZBA must weigh the benefit to the property owner against the detriment to the health, safety and welfare of the neighbors and the community if the variance is granted.)

As an example, the renderings show a line of dense foliage on the boundary of the property that currently screens the lot from the neighboring property which the project plans to cut down.  It also does not indicate the elevated driveway and its proximity to the neighbor’s property also on that side.  

The appellant further states the rendering doesn’t show how high the home will be above street level and neighboring lots as it is planned to be situated on top of several feet of fill (dirt).  

Appellant’s markup of rendering of 1011 Greacen Point Road Used for FAR Variance Request.

The appellants also claim that the property owner didn’t include all required floor areas in the FAR calculation, including stairways and covered porches.  In making the argument to include porches, the appellant referenced the Code’s definition of porch as: “A roofed-over structure projecting from the wall or walls of a main structure, whether or not open to the weather. It shall be deemed to be a part of the building.” See 342-3(B).  In their submission, the appellants also point out that a previous definition of FAR in the Code was revised to no longer exclude “roof areas” in its calculation in order to make FAR “less permissible” in the Village. See Comprehensive Plan HERE.

Property Owner Makes Case for Decreased FAR Calculation

The property owner’s team claims that the FAR total is actually less than what they originally reported in their 2024 ZBA variance request.  They disagree that porches should be included in the calculation.  Ransom concurred with that view citing the fact that porches lack an exterior wall. 

The property owner and the BI also contend that the stone veneer covering the first story’s exterior wall should not be counted, despite the Code’s definition of Gross Floor Area as “…measured from the exterior faces of exterior walls.” [Emphasis added]. See 342-3(B). The owner said that the measurement to the exterior wall used for FAR should stop short of the stone covering which reduces the total FAR for the project by roughly 200 sq ft according to the appellants calculations.

In addition, the property owner’s team stated that multiple second floor spaces in the home constitute attics which are excluded from FAR.  At the meeting, Ransom said he relied upon a definition of attic from Merriam Webster’s dictionary because the Village Code lacks one, and he agrees with the property owner that the space over the garages should be considered an attic and not counted in FAR. 

It seems that the BI overlooked the Village’s definition of attic which is located in Section 342-3 of the Village Code: “The area between the top of the ceiling joists of any story and the roof rafters.”  This definition is more restrictive in terms of FAR than the one quoted by the BI at the meeting.

Number of Floors and Average Grade of Lot

The ZBA is also considering the calculation of the average finished grade of the property once the project is completed, as this value will determine if the proposed bottom floor of the home is zoning compliant.  In the Village, single-family homes may only be built with two and half stories without an area variance.  But if the height of a space is more than 50% below the finished grade adjoining the building, the Code considers it to be a “cellar”- not a story - and it is permitted.  See Section 342-3B.

In other words, the property owner is manipulating the height of the average grade of the lot to build the home with 3½ stories.  The project’s architect, David LaPierre, in a January 16, 2025 email to the former BI explained “We are trying to keep the average grade number as is in order to maintain the lower levels current cellar status and not become a basement/story.” See HERE.

Using Fill for Changing the Grade

The property owner had originally planned to achieve the required grade height by propping up both the house and the garage with sufficient amounts of fill.  However, after neighbors complained that the 6’ elevated driveway ramp and retaining wall next to their property line was too dangerous, the property owner lowered the height of the garage by a couple of feet.  See previous article HERE. This resulted in the need to change the plans to maintain the finished grade level. 

First, the property owner planned to offset the lower garage and driveway by placing a planter and an AC condenser platform on five feet of fill, but Ransom rejected the idea of measuring the grade from the top of those elements.

Then LaPierre asked at the meeting if the BI would consider the elevated terrace in the back and the porch in the front as walkways under the Code definition of Finished Grade. See 342-3(B). Ransom said yes, he would consider those platforms - which will be elevated ~6 inches above the ground - as walkways for the purpose of determining the average finished grade, giving the property owner the grade level required to build the third floor at the bottom of the home.

Fill and Flooding

The Federal Emergency Management Association (FEMA) has issued a warning about using fill to prop up new construction in flood-prone areas as it increases flood risk to lower-lying properties.  See HERE. Greacen Point Road, located alongside a designated wetland and with portions in the floodplain, has a history of flooding.  See previous article HERE.

A neighbor at the meeting disputed LaPierre’s assertion that it was the Harbor Coastal Zone Marine Commission (HCZMC) that had advised the property owner to raise the home on fill to reduce flood risk to the structure.  He told the ZBA that the HCZMC did not request the additional fill.

“The [meeting] minutes show that the idea of the fill was made by the Village consultant...The Village attorney affirmed in correspondence to me that the additional fill is entirely unnecessary.  And yet this was a very significant change that was made after this Board’s determination of the zoning variance…It’s really not the same house that was before you and that you based your determination on.”  See HERE.

HCZMC May 15, 2024 meeting materials include a letter from Village consultant John Kellard in which he recommends that the applicant raise the house 18 inches to comply with Village requirements for buildings in the AE flood zone.  But, Kellard writes, “Since the structure is outside of the AE Zone, technically the structure need not comply with the Village Code.” See HERE.

Structures in Side Yards and Building Height

In their appeal, the neighbors also argue that the property owner miscalculated the height of the building, and it is above the permissible level under the Code without a variance.   

In addition, neighbors claim that structures planned within the minimum side yards – including planters, stairs, light fixtures, propane tanks and stormwater management fixtures - require area variances.  In a 2007 ruling, the ZBA found in favor of residents who made a similar appeal of a building permit due to construction within a minimum setback without a variance at 818 The Crescent.  In its prior resolution, the ZBA states:

“Steps, platforms, walls and structures used as planters do not fall within the exceptions established in section 342-14 for projecting architectural features [permitted in a minimum yard setback]. Therefore to the extent those structures encroach into any of the required yards we find that the building permit was not properly issued.”

That 2007 resolution also states “Several people appeared to argue that this [building of certain structures in yard setbacks] is a common practice. Whether or not this is a common practice our authority is limited to applying the Zoning Code as written not how people would like it to be written.” See HERE.

Timeliness of the Appeal

At the meeting, the owner argued that the ZBA should dismiss the appeal because it was not timely filed.  NYS Village Law 7-712 (85)(B) requires that zoning appeals be submitted within 60 days of knowledge of a Village officer’s decision.  The appellants originally filed their appeal of the December 13, 2024 building permit on December 16, 2024. 

The property owner asserts that the grounds and relief sought by the appellants in that appeal concern the location and height of a retaining wall which has since been removed from the plans, and that the appellants did not timely file an appeal regarding the issues that are now being raised such as the calculation of the FAR.

In response, Gaudioso told the ZBA the appeal was of the building permit for a set of plans that has been continuously modified throughout the land use board review process.  He reminded the ZBA that both NYS Village Law 7-712(B) and the Village Code Section 342-60 give the ZBA jurisdiction to now review and make zoning determinations regarding the entire plan.

Next Steps

The ZBA plans to continue the appeal hearing at its December 4, 2025 meeting. The ZBA has the responsibility to interpret all relevant zoning regulations and determine if area variances are required.  It has also been asked to reconsider the previous ZBA FAR variance approval.

NOTE: A ZBA variance approval carries weight not only for a particular applicant, but also for the Village at large as it sets a legal precedent.  In general, the ZBA must follow its prior rulings to avoid being considered arbitrary and capricious when asked to make the same determination for another applicant.  As a result, the decisions the ZBA makes regarding the definition of FAR, average grade and structures in minimum yards for 1011 Greacen Point Road will be meaningful for all other residential property owners in the Village.