Monday night at a meeting of the Chestnut Ridge Zoning Board of Appeals (Jan. 29), the board voted 5-0 to revoke the C/O (certificate of occupancy) that had been granted by the Village’s building inspector to an oversized, two-story 3-car garage at 3 Spring Hill Terrace. This was the second meeting about the garage, and both sessions lasted almost three hours and had to be held at the Chestnut Ridge Middle School due to an overflow of those attending. The difficulty of arriving at a conclusion was not due to the facts but rather a Catch 22 in the state’s zoning law.
The Facts of the Case
Residents Hilda Kogut and Carole Goodman brought the application to repeal the C/O permit because the structure was apparently not built to house automobiles, but for people, attending religious services which had begun soon after the completion of the garage with a celebration and dedication of a Torah in the “garage.” Attorney Steven Mogel represented Kogut, Goodman and the residents, and over the two meetings explained the board’s right, and in this case, the obligation to revoke the C/O.
Here is brief a summary of some of the arguments.
3 Spring Hill Terrace actually has three garages. The house is owned by the Brooklyn-based Kenisha’s Aharon D’Hadas. The President of the Congregation is Wolf Rosenberg and the Rabbi is Joel Fisch.
The original configuration at the address was the house and two garages. One was converted to a Mikva (ritual bath), and the other was converted into a religious study room.
Operating on the premise that village code requires a garage, the owners built a third garage, larger than the original house. All the papers submitted to the Village for the project described the design and intended use as a 3-car garage.
Here’s what the new 3-car garage looks like next to the original detached 2-car garage. Visually, it presents quite a ludicrous comparison.
More surprising is what’s inside this “garage.” The two-story structure has radiant-floor heating, extensive interior lighting, gender-assigned bathrooms, and balcony seating (called “mezzanine storage” in the plans).
The upper level screened-in seating is accessible from the rear of the building where there’s a separate outside stairway, which female congregants have been recorded using to access the “mezzanine” section.
Included in the plans for the three-car garage were: “two water closets and five lavatories.” A lavatory is a room with conveniences for washing (sinks) and usually with one or more toilets. A water closet is a compartment or room with a toilet. Add them up, and that amounts to a minimum of seven toilets and sinks to serve the three drivers parking their vehicles.
Here’s a view of the interior of the garage. The screened area at the upper left is the designated “mezzanine storage.”
Over the course of the two meetings, the public was given the opportunity to speak about the “garage.” Most spoke of the disruptions in the neighborhood and the failure of the village building inspector. Here are some of the remarks:
Synagogues are permitted in this zone but it must be a permitted use. That’s a wholly different application process with public hearings and determinations. A special use permit requires a second application and permit from the county. None of this was done.
Citizens should not be required to FOIL and investigate applications. That’s why we have a building inspector.
(While showing a photo of the interior) Note the storage area has a screen. It’s not for storage it’s a segregated section for worshipers.
There were ads in a Monsey publication that listed the schedule of times of worship here at this location.
A series of video clips projected on a screen showed congregants entering the garage dressed for worship—men with prayer shawls entering the downstairs side doors and the women and girls using the rear stairway that leads to the segregated “mezzanine storage” area.
Carole Goodman, a neighbor and one of the litigants, explained that her entire life has been disrupted. The building is four times the size of her garage, and there are now loads of cars and lights, sometimes all night.
Another neighbor complained to the Mayor and he told her, when they start to use it as something other than a three-car garage then we will do something. She then described coming home on Fridays—there are cars all over and children without reflectors all over the street.
Numerous speakers appealed to the board’s common sense and reminded them that it’s not the public’s place to constantly monitor the decisions of the building inspector and the boards, planning and zoning. The law requires vigilance from them.
The legal kink that the board’s attorney, Walter Sevastian, returned to repeatedly was that the time period for the public to object to an application had already passed, and now everyone was bound by the legal principle of laches, which had, he thought, closed the door on this appeal to revoke the C/O.
The legal resource LexisNexis describes the doctrine of laches as “you are out of time.” The doctrine is based on the maxim that “equity (fairness) aids the vigilant and not those who slumber on their rights.” Because of this, laws and codes can be established that put time limits on how long the window will stay open for your objections. In this case, the deadline for appealing the issuance of the C/O had passed.
A number of the public speakers explained that they asked officials, including the mayor about the size and design of this “garage” and they were told, when and if the building was used for something besides a garage, then we will be able to do something.
Obviously, this would give license to anyone who submitted a fraudulent building application—all they had to do was to refrain from the actual illegal use until the time limit for appeal had passed.
Attorney Steven Mogel made a case for the exception to laches. That is, if there is something called “unclean hands” involved in the process, then laches is nullified. The unclean hands might be the withholding of required information or actual false information, such as, this is a garage and only a garage (comment from President Rosenberg, repeated by others).
At the end of public comment, there was some additional discussion among the board members and then the vote. Five of the nine ZBA board members were present, a quorum, and so the vote was taken on the question: To approve or deny the appeal to rescind the certificate of occupancy for the 3-Car garage at 3 Spring Hill Terrace.
The appeal was granted unanimously with a 5-0 vote. The certificate of occupancy will be revoked.
The next step now is to have the village attorney draft a formal resolution for the revocation of the C/O and have the board approve that at their next meeting. That’s scheduled for Monday February 12.
What happens next is not entirely clear. By definition, the C/O is “a document issued by a local government agency or building department certifying a building’s compliance with building codes and other laws, and indicating it to be in a condition suitable for occupancy.” Removing those permissions would make the kind of gatherings already regularly occurring at the synagogue illegal. If Rabbi Fisch chooses to ignore the local law, you would assume the mechanism of notification and the imposing of fines would then kick in.
If, the congregation decides to challenge the decision in court, then there might be a different schedule going forward, depending on the court’s decision to stay the rescind order until it reaches a decision or leave in place the prohibition. What’s interesting about a possible legal challenge is that it’s hard to imagine Wolf Rosenberg bringing an appeal to allow religious services on the site where he is on record insisting that this is a garage and only a garage. Another legalistic Catch 22.