Recently, the Lloyd Planning Board was confronted by an attorney representing neighbors on Macks Lane, claiming that the Town’s Building Department illegally granted a Building Permit to Melissa Surprise to erect a two-story, 1,240 sq/ft photography studio, with a bathroom and an open stairway between floors, at her two acre home at 151 Macks Lane.

Sarah E. Ryan, attorney with Van DeWater & Van DeWater, addressed numerous violations of the town code that this building poses, in a four-page letter [9/27/23] to the Planning Board, headed by Scott McCarthy.

Ryan began by stating; “I would like to bring to the board’s attention the fundamental errors that have plagued this application process and which have resulted in a lack of notice, which has violated both State Law and the Town Code.”

Ryan noted that the Code Enforcement Officer determined that this application met the Class II Home Occupation, which requires a Site Plan approval from the Planning Board and Special Use Permit.

“Mrs. Surprise was directed to submit the appropriate applications to the Planning Board. For reasons not explained, the Town Building Department thereafter issued Mrs. Surprise a building permit for her 1,240 sq/ft photography studio accessory structure on June 21, 2023 before any application was even submitted for Site Plan and Special Use Permit approval from the Planning Board and in clear violation of the explicit provisions of the Town Code.” Ryan noted that Mrs . Surprise submitted an application to the Planning board and the Environmental Assessment Form [EAF] on July 11, 2023 twenty days after the building permit had been issued.

Ryan pointed out that the ‘unlawful issuance’ of the building permit, “robbed Mrs. Surprise’s neighbors of the required notice and opportunity to be heard on the project prior to its construction. In fact, by the time the application was scheduled for public hearing before the [Planning] Board, significant construction had already occurred on the site and, as of the date of this letter [9/27/23] the structure is nearly complete.”

Ryan urged the town to suspend or revoke the ‘invalid’ building permit until the applicant received all of the required approvals, a per the town code.

“Nonetheless the town took no actions to correct its blatant error and allowed the unlawful construction to continue without interruption. This knowing and seemingly intentional violation of the Town Code by both the Building Department and Mrs. Surprise, effectively and frustratingly rendered any meaningful comment or opposition to the size of the structure moot.”

In August, the Planning Board stated that the applicant would be referred to the Zoning Board of Appeals for an Area Variance. Ryan stated that this type of variance was needed because the studio exceeds the allowable square footage for a Class II Home Occupation. She highlighted her calculations: Mrs. Surprise’s principal residence is 2,960 sq/ft and 30% of this equals 888 sq/ft. Because her studio, at 1,240 sq/ft, is larger than the allowed 888 sq/ft calculation, she must go before the zoning board for an area variance.

Ryan wrote that the applicant avoided going to the zoning board for an area variance by claiming that the 2nd floor of the studio would be used ‘exclusively’ to store household items while the ground floor would be for her photography studio. Ryan pointed out that the code calculates the space occupied by a home business, “to include any space for the storage of materials or products. Therefore, given the open layout of the structure, the consistent representation on all application materials that the proposed structure is intended to be a photography studio, and the unequivocal provisions of the Town Code, it is our position that the area variance remains both appropriate and necessary to prevent further violation of the Code.” She noted that approval of the structure as it is now, simply by stating that the second floor would be only for household items, “would be insufficient as such a condition would be practicably unenforceable...once it is occupied.”

Ryan noted that the applicant should be referred to the Zoning Board of Appeals for an area variance, “given the town’s inability to practicably enforce the applicant’s representation that the studio will only occupy the first floor of the structure and photography studio or home studio in all application materials.”

Mack’s Lane resident James Dagata said, “My disappointment is they [Building Department] issued a building permit that’s illegal. There are laws on the books that were passed by the town that says we’re in a Class II section of town and they are still allowed to build the structure but it still has to be site plan approved. It was never site plan approved, everybody knows that, but they still issued a building permit,” he said. “We’re not trying to deny the Surprises their rights, but our rights were violated because we didn’t get a chance to discuss it at the Planning Board for its site plan approval. That’s what pissed everybody off on my end of the street and I’m not happy about how the process went; it’s just not right.”

Phil Slakoper contends that right from the start none of the paperwork on this project was filled out correctly, “and the paperwork kept changing as there kept being problems. It seems to me the Planning Board is bending over backwards to help her get this thing through.” He said Mrs. Surprise was to go before the Zoning Board of Appeals for a ruling, but to date that has not happened.

Slakoper said the building’s purpose appears to have been changed to it being a garage, a strategy he contends is being put forth to get the structure approved.

“I don’t know how they can explain that being a garage, only by taking the windows out on the front and putting in garage doors.”

Slakoper has lived in Highland since 1985 and, “I’ve seen this kind of stuff go on from the time my first house was built; they do not follow the rules at all.”

Dave Conklin, who is a direct neighbor of Mrs. Surprise, has noted numerous discrepancies about this project, chiefly that the building is 1,240 sq/ft and not 540 sq/ft for the studio. It appears that on the Building Permit Application an alteration was made to the Job Description line. Conklin’s copy states that the project is for a photography studio/mini splits but on a copy supplied to the Southern Ulster Times, the words “2nd story to be used for personal storage’ have been added and in a much darker ink. This also happened on the proposed structure size; 31 by 31 was written over 34 by 26, without a notated explanation.

On the Planning Board’s application the building is described as a “home studio” and the Short Environmental Assessment Form describes the proposed “use: auxiliary building as home studio.”

These descriptions back up Attorney Ryan’s contention that the applicant intends to use the entire building as a photography studio.

Conklin questioned how this building could be classified as a garage when the structure has about 17 windows, a main door, a large porch and sets of french and double doors. He noted that revised plans now show two “garage doors’ on the south side of the building.

Conklin contends that this project runs counter to what is a traditional residential neighborhood.

“When you put a 1,240 sq/ft accessory building with a business on a property is that going to encourage people to live here that are going to pay $850,000 for a home” he asked.

Melissa Surprise did not return a call for comment on this article and Building Department Director Dave Barton could not be reached.