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Potsdam property owner denied first-floor apartment after stopping work

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POTSDAM — Marc D. Leuthold has been denied permission to build an apartment on the first floor of his property at 1 Market St., after receiving a building permit in error and beginning construction last year.

The village Zoning Board of Appeals unanimously decided Thursday that the artist and SUNY Potsdam professor’s plans to turn the first floor into a shared apartment, gallery and studio did not meet the necessary requirements to justify a special permit.

Mr. Leuthold said he is considering his next step, which may involve appealing the board’s decision in state Supreme Court.

“I think I’m going to speak with my lawyer, to see what my options are,” he said.

Mr. Leuthold received a building permit to construct the apartment from village code enforcement officer Larry J. Colbert in April. He began work, spending $15,000 on the project and building a wall separating the front of the space from the proposed apartment in the back.

More than two months later the village realized its mistake and issued a stop-work order. First-floor commercial properties are not to be converted into residential space, according to the village code, for fear of eroding the value of the downtown business district.

Mr. Colbert left the position of code enforcement officer in September to go back into retirement, citing an overwhelming workload. His replacement, Gregory Thompson, became the village’s fifth code enforcement officer in less than three years.

To qualify for a special use permit to build an apartment, Mr. Leuthold’s property had to pass four tests laid out in the village code. The erroneous permit was not considered in the zoning board’s deliberations.

“Unfortunately, our hands are tied,” board Chairman Wade A. Davis said. “If one of these tests is failed, then the Zoning Board of Appeals is forced to deny.”

Mr. Leuthold said the village is depriving itself of the economic benefit a downtown artists studio could bring, calling such endeavours an economic engine. “This town wants to throw sand in the engine, instead of gasoline in the gas tank,” he said.

The board agreed that Mr. Leuthold’s application passed the first two of the four tests.

First, the applicant must be unable to get a “reasonable return” on his or her investment in the property. Second, this must be due to a hardship that does not apply to other property owners in the area.

The first floor of 1 Market St. has been vacant for several years. It is inaccessible to nearby parking, making loading and unloading nearly impossible, because it is tucked up against the Raquette River.

However, the code also says any changes to a property must not alter the “essential character” of the neighborhood, and the hardship cannot be self-created by the property owner.

This is where Mr. Leuthold’s application fell short, according to the board. By building an apartment on the first floor, he would be altering downtown Potsdam’s character as a commercial district.

Although he did not directly cause his problems with parking or accessibility, he brought the problem on himself by knowing the potential issues when he bought the building, the board agreed.

If Mr. Leuthold decides to appeal to state Supreme Court, the case will be treated as a lawsuit, with the village as the defendant.

According to village Planning and Development Director Frederick J. Hanss, the village has been involved in two such lawsuits in the last nine years, winning both.

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