Council to rule on zoning law

A change to the city’s zoning code will go before the City Council on Dec. 18 that would change the way attics are included in calculations of gross floor area for houses. Numerous complaints from residents about a recent preponderance of over-large houses prompted the council to examine the code for a solution. File photo

A change to the city’s zoning code will go before the City Council on Dec. 18 that would change the way attics are included in calculations of gross floor area for houses. Numerous complaints from residents about a recent preponderance of over-large houses prompted the council to examine the code for a solution. File photo

Residents’ misgivings that many new houses being built in Rye are out of scale in size and height compared to the majority of homes that populate the city’s neighborhoods has led to a proposal that would change the way attic space is included in the calculation of a house’s total floor area.

The proposed change to the city’s zoning code, which was last amended in 2003, brought out developers, architects, city commission members and residents to a series of impassioned public hearings beginning this September. The proposal currently sits in front of the City Council.

City Planner Christian Miller presented the final draft of a new local law regarding floor area on Dec. 4, a plan that he said essentially preserves all elements of the current law from 2003.

The major substantive change, he said, is the closing of a significant loophole that for years has allowed builders to get away with not counting their fair share of square footage toward a home’s total, since the attic space still conforms to state law.

The city’s planning department frequently receives applications that call for substantial renovations or demolitions of existing residences. These end up being replaced by new houses that are significantly larger, and the City Council has long heard complaints about outsized construction.

According to resident John Mayo-Smith, who runs the Rye zoning watchdog site, the proposed zoning code change has, fortunately, reopened the conversation about making the necessary zoning changes to discourage overdevelopment in the city. The next step toward this end, he said, is to update the city’s master plan, which has not seen change since the mid-1980s.

In 2003, Rye amended its zoning code in order to match New York State’s building code, which stated that attics with ceilings measuring more than seven feet six inches are considered habitable space, as opposed to non-habitable storage space, and therefore count toward the home’s square footage.

When the state law changed in 2007, decreasing the maximum attic height that counted as habitable space to seven feet, a loophole in Rye’s local law was created, something that builders took advantage of, in some cases building large third stories.

“These third floors served to increase the overall overdeveloped look and feel of the neighborhood,” Republican Mayor Douglas French said.

So even though people could theoretically live in that attic space without a problem, the city code still said that such spaces do not count toward the property’s gross floor area when calculating the floor-area ratio, or FAR.

In order to remedy this, the proposed new law reduces the ceiling height from seven feet, six inches to seven feet to once again be consistent with the state’s code.

Most of the law’s other provisions would remain the same as the original: 50 percent of attic space is still counted toward gross floor area. Additionally, the width of any area qualifying as habitable attic space would still only count toward FAR if it was greater than seven feet.

“What [the new law] really does is it gets us back to where we were before the change in the New York State building code,” Mayo-Smith said.

If adopted at the council’s Dec. 18 meeting, the new local law would make it so that attic headroom must be measured from the finished or unfinished attic floor to the bottom of the roof rafters, rather than to the roof’s collar ties, which can be manipulated by builders to allow for more space.

The newest version of the draft local law also does not require attic dormer windows to be included in the calculation of gross floor area for a residence.

According to Miller, the proposed revisions to the 2003 local law focus on the exterior impact of attic space, which, he said, often has little to do with the interior use: in essence, the law “gets us back to the spirit and intent of [the law as it was written] in 2003,” he said.

These and other concrete suggestions about changing the local law were first suggested at a joint workshop of the city’s land use boards in June, an occasion that included the Planning Commission, the Board of Architectural Review and the Zoning Board of Appeals.

French said that, after hearing complaints from neighbors and residents, the council asked the Planning Commission for a suggestion to change the law. Taking another look at the zoning code was something he wanted to do since he was elected mayor in 2009, he said.

The current proposal was finalized based on suggestions gathered from a Nov. 19 city workshop, which attracted a diverse group of 30 residents representing both sides of the issue.

Over the previous months, the main sticking point during public debate was whether the revised law should apply to all properties or just new residential construction, which could potentially result in some existing properties constructed under the 2003 law becoming legally non-conforming.

Since the public hearings began, local architects, most notably and most frequently Paul Benowitz of Locust Avenue-based Benowitz-Shah Architects, have vocally expressed their opposition to this aspect of the proposal, which Benowitz calls a “difference in philosophy” with French.

Rye should take a tip from Greenwich, Conn.’s 11-year-old law, which only applies to new houses being built in town, Benowitz said.

According to Republican Councilman and Mayor-elect Joe Sack, if the law is passed to apply to existing homes—even if the current homeowners have no desire to renovate or alter their homes—some of these properties could then automatically become non-conforming to the code.

As a result, these houses would sell at a lower price on the market, since any future owner would now be required to go before the zoning board to get a variance for any renovations.

But Mayor French said homeowners are often required to get variances for new construction under the existing law, so the only difference is people will no longer be able to subvert an approval process that should have been in effect in the first place, if the law is approved.

“[The new law] isn’t punitive to the degree Councilman Sack seems to think,” he said.

In a Nov. 27 memo accompanying the most recent revised draft, Miller addressed existing properties, stating that “[closing the attic tie loophole] was the intent of the original law and it would seem counterproductive to essentially exempt properties that took advantage of this loophole since the 2003 zoning changes from the proposed law.” Planning Commission chairman Nick Everett agreed. “To pass this law and exclude existing properties would be ludicrous,” he said.

One benefit to the city is that including existing properties would make it easier for the Building Department to enforce the law, Everett argued.

While Everett said that builders should cheer the fact that the proposed law, which would go into effect in July 2014, will also have no effect on rooflines, some architects and builders fear the law could potentially limit creativity of their designs. Specifically, they worry that adjusting to the new law would necessitate undesirable roofline construction that would give roofs an ugly, squat look. Some residents have also pointed out the potential for the city’s building permit revenue to decline, if the change causes some builders to build elsewhere.