Law Committee Revises Village Code for Vape and Gun Shops
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Following up on a meeting it held this summer, the Scarsdale Village Law Committee took another next step toward limiting the presence of vape shops and gun stores within the village.
Since Scarsdale is unable to enforce an outright ban on these stores as a municipality cannot dictate what retailers may and may not sell. However, the village is able to restrict the location of certain establishments, and set other safety standards as part of its zoning code.
Specifically, on Tuesday 9-25 the committee approved changes to the local zoning code that increase the distance between these retailers and schools, houses of worship and the like, and clarify the village’s official definitions of the goods sold at the establishments.
First, the group addressed the term “vape shop.” Recognizing that “vapes” are just one type of a class of products, and the term “vape shop” will not be used in the code; the village is now regulating retailers that sell one or more versions of electronic nicotine delivery systems (ENDS), and related components and parts. These include vapes, vaporizers, vape pens, hookah pens, e-cigarettes, e-pipes, tank systems, and any other electronic- or battery-powered devices and accessories used to smoke flavored solutions.
Village Attorney Angela Sapienza-Martin, explained, “For instance, (considering) the two locations that we know for certain, in the village, that do sell these products, neither would be a ‘vape shop’ per se; they sell a number of other products, so that’s why we thought this change was necessary.” She continued, “We felt that this definition, which comes from the FDA, was the most all-encompassing definition we looked at.”
Next, Sapienza-Martin announced that the village’s official definition of “firearms,” which previously was based on the description provided in the federal Gun Control Act, would be modified to include “antique guns,” which are not included in the legislation. Trustee Seth Ross had suggested the change during the committee’s last meeting on the issue, pointing out that antique guns should be subject to the same restrictions as other firearms, as they also can cause harm to others.
Restricted Establishments
Scarsdale plans to classify ENDS and firearms retailers as restricted establishments that require a special use permit for the sale, transfer or commercial delivery of these products and related accessories.
Their locations would be limited to the “VCR 1.0 Zone,” covering Garth Road from Freightway to the Eastchester border. They also must be sited more than 250 feet from away from schools, nurseries, nursery schools, daycare centers, playgrounds and houses of worship, and over 250 feet away from similar restricted establishments.
There already is a house of worship currently located on Garth Road -- Chabad of Scarsdale – and the Cornerstone Children’s Center is further south.
As the VCR 1.0 Zone is close to the Eastchester border, Sapienza-Martin noted that the regulation applies regardless of jurisdictional boundary; in other words, if school, house of worship, daycare center or the like was located in Eastchester, a restricted retailer in Scarsdale still must be sited more than 250 feet away from that establishment.
The proposed code modifications also address storage of ENDS components and parts, and firearms and ammunitions. Retailers already must comply with a number of local, state and federal guidelines regarding storage, such as properly securing products and stocking them behind counters, away from customers. Scarsdale has proposed expanded storage regulations to be consistent with its other code modifications (e.g., ensuring all products are classified as ENDS) and addressing any gaps that impact safety.
Getting Affairs in Order
Because two Scarsdale businesses currently sell ENDS products, the village must allow those establishments an appropriate timeframe to come into compliance with the proposed code changes. Generally speaking, when a code amendment restricts an activity that was previously permitted, a municipality must be reasonable and provide organizations with sufficient time (or “amortization period”) to change non-conforming practices and comply with new regulations. “If an entire business is non-conforming, then you’re looking at a much longer period of time; if it’s a single product that you’re making non-conforming, then you may be looking at a shorter period of time,“ said Sapienza-Martin.
She noted that one of the Scarsdale retailers already has stated that he would have little problem with complying with the new code provisions, but the other retailer – 7-Eleven -- is more resistant. “One of the attorneys in the legal department… said that this would be a very big deal for them,” Sapienza-Martin said, but, the company has not shared any supporting sales data to support the argument. “They may be looking to challenge… because they don’t want other municipalities seeing what we’re doing and mimic it.” After considering existing case law, and discussing which timeframes would be seen as fair and reasonable, the committee decided to provide the establishments 12 months to comply with the modifications.
The committee then clarified that, since the code amendments are part of the village’s zoning code, the Scarsdale Building Department would be responsible for enforcing the new requirements via regular inspections.
Residents, of course, will have a chance to voice their opinions about the proposed revisions before they are finalized. Trustee Carl Finger noted that, “We’ll keep an open mind, and hear from any member of the public who comes to the public hearing, and we’re sending it over to the planning board… there will be another opportunity for anyone to speak, and then it will come back to us.” He continued, “They’ll be opportunities for us to consider what (additional) information people provide to us.”
Laura Halligan is a local writer, editor and marketing consultant. She is principal of Pinch Hit Prose and provides communications services to entrepreneurs, small businesses and nonprofits.
Gas Leak Shuts Down Post Road
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At 9:30 am on Monday September 17, workers who were repaving the Post Road in Scarsdale, struck a gas line causing leaks to homes on Evon Court and the Post Road between Boulevard and Sprague Roads.
The road was shut down, and detours were set up, rerouting traffic while the Scarsdale Fire Department, the Police Department and Con Edison were called to the scene. Homes on Evon Court along with two homes on the Post Road were evacuated. IHM was notified and advised to keep students inside until further notice.
At 11:50 am Con Edison announced that the leak had been recapped and allowed residents to return to their homes. At 12:30 vehicles were cleared and both lanes of traffic were reopened.
Trustees to Consider New Provisions on Tree Removal and Clear Cutting
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The Law and Sustainability Committees of the Scarsdale Board of Trustees will meet on September 12, 2018 at 6 pm at Scarsdale Village Hall to consider additional changes to the laws governing the removal of trees.
Last spring, Trustees passed some new tree provisions but stopped short of passing new laws involving the removal – or clear cutting – of clusters of trees.
At their meeting on April 24, 2018, Trustees passed the following laws regarding tree removal:
Replacement Trees: A replacement tree is required for a removed tree that is 24'' diameter (reduced from 36'' diameter). Replacement trees need to be 3'' in diameter and a native species.
As of Right Removal: Homeowners can continue to remove 2 trees as of right per year (under 24'' diameter).
Dead, Dying, Hazardous or Diseases Trees: Trees in any of these conditions (of any size) can be removed without the need for a replacement tree
Tree Permits: Addition of six small caliper trees that require a permit above 3'' in diameter. Permits for all other trees remain at 6'' diameter. Trees, aside from the six small caliper ones listed in the code, do not require a permit to remove if under 6'' diameter.
Protected Trees: They updated the list of protected trees to align with endangered native trees.
On Wednesday September 12, 2018 the trustees will discuss an "aggregate test" provision to the tree code which would aim to address clear cutting. The aggregate test would look at the Total DBH (diameter at breast height) of any tree that requires a permit (for example 2'' trees are not included in the total of DBH since they wouldn't require a permit to remove) to determine the number of replacement trees required. This was originally proposed by the Tree Working Group but the Board of Trustees decided to discuss this proposal separately from the other tree code changes.
Please click here to review proposed changes to the tree code that will be discussed at the September 12th meeting:
Trustees Ask for More Revisions to Proposed Clear-Cutting Code
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Scarsdale Trustees considered, but failed to agree on new provisions to prevent the clear cutting of trees on Scarsdale properties at their meeting on September 12. Members of the Conservation Advisory Council recommended new rules governing tree removal, but after considerable discussion, Law Committee Chair Carl Finger asked Village staff to make several changes and clarifications to the recommended code and schedule another committee meeting to review it.
Last spring, Trustees passed some new tree provisions but stopped short of passing new laws involving the removal – or clear cutting – of clusters of trees. At their meeting on April 24, 2018, Trustees passed the following laws regarding tree removal:
Replacement Trees: A replacement tree is required for a removed tree that is 24'' diameter (reduced from 36'' diameter). Replacement trees need to be 3'' in diameter and a native species.
As of Right Removal: Homeowners can continue to remove 2 trees as of right per year (under 24'' diameter).
Dead, Dying, Hazardous or Diseases Trees: Trees in any of these conditions (of any size) can be removed without the need for a replacement tree
Tree Permits: A permit is required to remove six small caliper trees above 3'' in diameter. Permits for all other trees remain at 6'' diameter. Trees, aside from the six small caliper ones listed in the code, do not require a permit to remove if under 6'' diameter.
Protected Trees: They updated the list of protected trees to align with endangered native trees.
On Wednesday September 12, 2018 the trustees discussed an "aggregate test" provision to the tree code which look at the Total DBH (diameter at breast height) of any tree that requires a permit (for example 2'' trees are not included in the total of DBH since they wouldn't require a permit to remove) to determine the number of replacement trees required.
Specifically, they agreed that they favored Option A which reads as follows:
Permitted trees removed having an aggregate DBH of 48 inches or greater:
• A 2 inch DBH replacement tree of a genus and species expected to grow to a maturity at a similar size to the removed tree or trees shall be planted for every 24 inches of DBH removed up to 120 inches of aggregate DBH;
• Two 2 inch DBH replacement tree of a genus and species expected to grow to a maturity at a similar size to the removed tree or trees shall be planted for every 24 inches of DBH removed above 120 inches and less than 240.1 inches aggregate DBH and if payment to the Tree Preservation Fund in lieu of replacement tree is utilized, then the payment shall be double the amount set by the Village Board in its annual fees and charges schedule;
• No trees shall be removed above 240 inches aggregate DBH.
Opening the discussion Trustee Carl Finger who heads the Law Committee explaned the intent of the new code, saying, “This is targeted to the 6-10% of most significant tree removers … the people who remove the most trees will be affected the most.”
In the discussion at the meeting, Trustee Lena Crandall said, “We need our trees…. this is an incremental step.” Matt Callaghan said, “this is a good start though it my need to be tweaked again.” Mayor Dan Hochvert explained that he replaced a diseased 40 inch oak with a new two inch oak that he hopes will be on the property for several generations. Trustee Ross said, “Having this codified leads to greater predictability.”
However Trustees Justin Arest and Jane Veron were not on board. Arest said, “ I hoped we could do this through the land use process. Should we focus on the higher end at the beginning?”
Veron said, “I don’t believe that this legislation gets at our goal. Our goal gets at replacement. I prefer attacking this through the land use process. Applications come through the boards. At the land use board we can ask whether we can we change the footprint of the house and save the trees? I don’t think this will solve the problem. It will raise funds to plant trees.”
She continued, “I am a gradual change person. We just changed legislation and we don’t know the consequences. I would rather proceed more modestly.”
Carl Finger responded, saying, “I don’t understand why the discussion you’re talking about can’t still happen – even with this law?” He commented later, “I sat on the BAR and was in the room for those discussions. Jane was on the Planning Board they had more leverage to negotiate. It’s hard to have a one size fits all solution. The greater impact will be on the big lots. It is not simply that you can pay instead of planting replacement trees.”
Mayor Hochvert said, “The Board of Architectural Review says they don’t have the uumph that they would have if we passed this code. The BAR is having difficulty.”
In comments from the public, Claudine Gecel of Kent Road spoke passionately about tree removal. Arguing for the regulations she told the trustees, “You go to the BAR meeting and you duke it out there.”
Bob Berg objected to the new code calling it a “hyrda” that keeps on expanding. He said, “It is more complicated than the IRS code – no one can get through it. This is based on a back of the napkin analysis. This is not the basis to enact a new law. You enacted a new law in April over considerable opposition. Address clear cutting through a land use board. The developers don’t care how much they have to pay to replace the trees. It’s pocket change to them. It offends people on smaller properties ho want to remove 5 or 6 trees.”
Trustee Justin Arest responded to Berg, saying “I thought you were upset about a property owner who removed a lot of trees a few months ago – and we couldn’t prevent it because we had no clear cutting code.” To which Berg said, “I am sure this wouldn’t address that!”
Ron Schulhof said, “I worked on this as part of the CAC. My personal view is that many changes to land use laws need to be made. This does not preclude that. You need underlying code – in addition to the negotiations at the land use boards. Dead, diseased dying trees are not included. You can’t take every tree and put it into the tree preservation fund. If a developer wants to take down 40 trees, many will need to get replaced. If you were to use the tree preservation fund – what is that amount?
Maybe I can save this tree so I don’t pay? Penalties for illegal tree removal should be adjusted so they are higher than the tree removal fees. I would do 3 inch replacements – rather than 2 inch replacements. Current code was 3 inches. In terms of timing, I think it should be longer than a 12 month period.”
As the meeting concluded, Finger asked Village staff to revise the proposed code and consider the aggregate number of 48 inches, saying we might need different aggregates for each zone. He asked them to look at the time span for the tree removal regulations, to outline the penalties and to make a recommendation about the size of the replacement trees – either 2” or 3” DBH.
Post Road to be Repaved, New Gas Main on Scarsdale Avenue
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(The following announcements are from Scarsdale Village Managers)
The New York State Department of Transportation is scheduled to repave the portion of Post Road passing through Scarsdale in its entirety starting on Monday, August 6th. This estimated $2.1M project is not your everyday asphalt resurfacing.
The NYSDOT is going to do the job right so that it addresses a variety of existing physical roadway problems and ultimately delivers a traveling surface that will withstand the test of time and heavy usage. Doing it right translates into noise, lights, and heavy vehicle construction work involving long sections of Post Road. The Village is working with NYSDOT officials to minimize adverse impacts, but they are largely unavoidable given the project scope and location.
Heavy machinery and portable roadway construction lighting will be deployed between the hours of 7:00 p.m. and 6:00 a.m., Sunday through Thursday, beginning on Monday, August 6th. NYSDOT will endeavor to conduct the most disruptive elements of their work as early as possible on each day so as to minimize nighttime noise.
The work will begin near the border with Eastchester and proceed north from there, with the completion estimated for shortly after Labor Day. Residents and other Post Road users should avoid travel on Post Road as much as possible, as there will be lane closures and heavy construction activity. Motorists are advised to follow any posted detours and adhere to construction zone speed limits.
Official NYSDOT Traffic Alerts are available using 511 and through the NYSDOT website.
Con Edison to Replace Scarsdale Avenue Gas Main
Beginning on Wednesday, August 15th, Con Ed is beginning an estimated three to four week project involving replacing and upgrading the aging underground gas main on Scarsdale Avenue between Popham Road and Wright Place. Monday,
August 20th, through Friday, September 14th (estimated).
Major roadway excavation and gas main replacement between 8:00 PM to 6:00 AM.
Phase II is being performed at night to minimize otherwise potentially significant traffic and business impacts.
During construction hours, Scarsdale Avenue will be reduced to one lane, managed by Scarsdale PD to provide for travel in both directions on an alternating basis.
Expect construction lighting at night, roadway excavation noise, traffic management measures, and Scarsdale Avenue parking restrictions – watch for postage signage.
Motorists are encouraged to observe and obey all traffic and parking-related restrictions in the construction zone, and to exercise caution while traveling along Popham Road, particularly in the area of the intersection with Scarsdale Avenue.
