The Zoning Board Outdoes itself: Thank God They Do Not Have the Authority to Site Nuclear Plants

Many of us asked could the ZBA possibly act more irresponsibly than it did in the case of the Murphy Lane “Barn Conversion”?  The answer, as demonstrated by their actions at their April 23^rd meeting, is a resounding “yes”!

Here is ZBA board member James Helicke summing up just how egregious this  project is.  This short clip is well worth watching.

Spa City Recycling, previously known as Figelman & Son Scrap Metal, has been something of an open sore on the city’s west side.  It is located  at 77 South Franklin St. and the property runs down Cobb Alley. The operation predates zoning so it has been able to continue in spite of the noise and traffic it has generated.

In 2012, Anthony Dawson’s company, Moto Holdings, purchased the company from the Figelman estate.

More recently, Mr. Dawson constructed a new facility in the town of Milton, and this winter he ceased operations at the Saratoga Springs site.  He alleges that he has just closed it for the winter.

Recently Mr. Dawson announced that he wanted to develop the Saratoga Springs site by constructing four houses there.  He alleged that if he did not receive the radical variances he needed that he would reopen his operation there.

Mr. Dawson is seeking the same kind of variances that the notorious Murphy Lane barn “conversion” received which are truly stunning.  The following variances are for three of the lots on Mr. Dawson’s property.  A fourth lot is only slightly larger.

So the variance for the front of the property is for just a 6 inch  setback, instead of 10 feet. This is a reduction of 95%.

The minimum lot size in the UR3 zone where these houses are to be located is 6600 square feet. Three of the buildings will be 2,500 square feet.  This is a reduction of 62%.

The minimum set back from the rear is supposed to be 25 feet.  Three of the buildings will have setbacks of 7.5 feet.  This is a reduction of 70%.

Minimum lot width is 60’.  Three of the four lots requested will have a width of 50’.  This is a reduction of 17%.

A principle building can cover 30% of the property in this zoning area.  This project will be allowed 50% coverage.  This is a increase of 40%.

The Chairman of the Zoning Board of Appeals lives across the street

William Moore is the chairman of the Zoning Board of Appeals.  He hired Sonny Bonacio to build a house for him on a plot of land across the alley from what was then Figelman’s  scrap metal operation. Sonny has come before Mr. Moore so many times that many of us think he deserves a seat with a plaque. Many readers may remember the controversy over the ethics of hiring Mr. Bonacio which was covered by the Times Union.

Because of the revised ethics standards adopted by the city as a result of Chris Mathiesen’s advocacy, the proximity of Mr. Moore’s home to the Dawson project required Mr. Moore to recuse himself from the proceedings.

Our city has a very high standard regarding recusal for which we should be proud.  The board member may not vote on the issue of course but in addition the board member must do more than abstain from the discussion but must physically remove themselves from the room.  The idea is that the other members of the board should not be pressured by the person’s presence.

This, however, did not discourage Joan Salmon, Bill Moore’s wife, from being the first speaker during the public comment period to address the Board.

I happen to like Bill Moore.  He has always been warm and friendly in his dealings with me in spite of my many criticisms of him.  Still, as chair of the ZBA, one would have expected him to be scrupulous regarding the spirit of recusal and having his wife address his Board is not consistent with this standard.

More troubling was her statement to the ZBA.  She pointed out to the board two other properties with similarly jammed designs.  The problem with her comparison was that in the case of one property, it predated established zoning and in the other it is in a different district of the city that has zoning that allows greater density.  I do not think it is unreasonable to assume that Bill, her husband, was aware of what she had written.  At the risk of appearing old fashioned, I do not think that the chairman of the ZBA should be associated with submitted comments meant to deceive his colleagues.

An Unseemly Rush and Reckless Indifference To Proper Design And Oversight

This project was problematic from the beginning.  Normally a development with four houses would be required to go before the city’s Planning Board for site plan approval.   Their plan would be the subject of careful scrutiny for everything from rain runoff to traffic safety.  The ZBA has neither the expertise nor the temperament to provide this kind of oversight.

Unfortunately, the four parcels pre-existed current zoning and are exempt from Planning Board review.  Board members Cheryl Grey and James Helicke, recognizing this, particularly as regards the traffic issues, attempted to refer this project to the Planning Board for advisement which the ZBA has done before.  Keith Kaplan who was acting as temporary chair dismissed this request and it was obvious that he had the support of the other board members present.  Referring this to the Planning Board would have significantly delayed the approval that even the most casual observer could see was their priority.

Density?  That inconvenient 2,000 pound guerilla

As noted above, Mr. Dawson is trying to drop his houses on virtual postage stamps.  By any measurement, the scale of the variances being requested is extreme so the innocent among us might have expected this to be a central part of the discussion.  Not with this ZBA.

At an earlier meeting acting chair Keith Kaplan actually reassured Dawson that he had no problem with the density of this project.  Even for this ZBA, this was a shocking statement.  A friend with extensive experience on land use issues offered the following.  He told me that it is one thing for Mr. Kaplan to say that such extreme variances may not disqualify their approval but to dismiss any concern about them ignores the fundamentals of zoning.  There would have needed to be recognition of the problematic nature of these variances and some sort of discussion about what compelling issues would overcome the obvious problem with them.

If you endure, as I did, the deliberations on this project you will see that there is almost no discussion on this matter. A video of the meeting is available on the city’s website.

James Helicke and Cheryl Grey tell their colleagues that they cannot approve the variances because they are excessive.

Keith Kaplan tells the Board that because there are other small plots in the area and because the project is near the UR4 zone which allows greater density, he is for the project.  There is a sort of Kafkaesque quality to this.  I say that because there are not many plots as tiny as these and those plots pre-exist the zoning.  I find it particularly a bridge too far for him to argue that because these houses will be located “near” a zone that allows greater density that the board can dismiss the density of the zone where the houses are actually located.  This gives the reader some sense as to how the ZBA manages to approve pretty much every variance request that comes before them.

Keith Kaplan was the only member voting to approve the variances who felt the need to even acknowledge that there was an issue.

Basic Design Considerations Are That Alleys Should Only Have Secondary Buildings

If you travel down the alleys in Saratoga Springs you will observe that the vast majority of structures on the alleys are garages, storage buildings, and small workshop type buildings.  This is because this was how our streets were conceived.  The residence faces the regular street while the garage in the back accesses the alley.  Alleys are really to accommodate ancillary buildings.  For one thing, there is really no room to park a car on our alleys without impeding traffic (the photos graphically illustrate the problem).  Imagine what these alleys would be like if they had homes lining both sides.

None of the board members supporting the variances to allow these homes to be built on Cobb Alley acknowledged this issue let alone addressed it.

The Public Safety Department Has Documented That The Design Poses A Danger: Who Cares?

The proposed structures in this project have only six inches of setback from the alley they face.  James Helicke and Cheryl Grey strenuously opposed the project because as designed people would be backing out of three of the garages directly onto an alley with their vision obstructed so they could not properly see oncoming cars or bikes.  The walls of the garages make proper sight lines to observe on-coming traffic impossible.

Having refused to seek advice from the Planning Board, Keith Kaplan asked planner Susan Bardon to ask the appropriate expert in city hall to provide an analysis.

Mark Benaquista, who works for the Public Safety Department, wrote to the ZBA through Ms. Bardon warning that the project as designed was a public hazard.

“The project as designed presents a significant safety concern.  The garage design does not provide critical lines of sight for either future residents, or for vehicles, bicyclists, or pedestrians traveling along the alley.  Residents will be backing out of their garages directly into the travel way with no ability to see oncoming traffic.  The design also does not provide for needed Stopping Sight Distance warning for traffic traveling along the alley.  Traffic will be traveling down this very narrow pathway and suddenly might encounter a car backing into their path and have no warning or space to avoid hitting the car.”

The letter goes on to discuss other traffic related problems with the design.  It advises that the applicant consider other designs to address this problem.  Here is a link to the full document

Public Safety Memorandum

Now the innocents among us might have expected that Ms. Barton, having gotten the unfavorable advice contained in the memo, in addition to forwarding it to the Board prior to the meeting, would have advised the Board at the meeting to take appropriate action to mediate the problem.  She is the City Planner after all.  One might also have expected that the acting chair, Keith Kaplan, would raise the need to address these problems, if not as the first order of business, at least sometime in the meeting.  If you expected any of this to happen, you would be wrong.

Instead, acting Chairman Keith Kaplan, finessed the issue.  The memo from Public Safety suggested that by combining the driveways the project could redirect the cars on site to a different location.  In correspondence from the applicant which is not accessible on the city website, Mr. Dawson refused to make this change.  So all Mr. Kaplan did was to ask Mr. Dawson if he would consider changing the design as suggested by Public Safety.  He already knew what the answer was.  Dawson said no and that was it.  It was as though the warning from the Public Safety Department did not exist.  Kaplan moved the meeting on.  I know the readers of this blog will find this hard to believe but the video is available on the city website.

I should indicate that the Public Safety letter also advised that the narrowness of the alley would make even turning the vehicle as needed when backing out of the alley a problem.  The applicant did address this by showing a video he had made that simulated backing out of the proposed garage.  Of course Mr. Kaplan and the other supporters of the application ignored the fact that in the simulation there was no plowed snow that would have narrowed the alley.

It was instructive that the applicant conveniently ignored the problem of the sight lines.  His video demonstration had the cars maneuvering around parking cones.

Neither Mr. Kaplan nor Ms. Barton insisted that the Board take action to insure that the safety concerns as raised by the Public Safety Office be addressed.

The only Board members who acknowledged the danger of the design were James Hellicke and Cherry Grey.

McNeil Lectures On How Safe Backing Out On To A Road Is

Board member Adam McNeil did offer a defense late in the meeting.

He explained that he had driven around the alleys of the city and had found many garages with no set back.  He then dismissed the whole premise as ridiculous.  He explained that it was common in parking lots to have one’s car sandwiched between two SUVs.  He counseled his fellow Board members that all that was required was to very cautiously back up slowly until you could see beyond those vehicles.

I am almost embarrassed to point out the fallacies in Mr. McNeil’s analysis to the readers of this blog, but here they are.  Pretty much all the garages on alleys that he is referring to were built prior to the establishment of most of our zoning regulations.  They are grandfathered.  As far as I can tell, no land use board has ever approved a proposal to have a garage abut the street on an alley.

One of the reasons that we have established our zoning laws was out of recognition that many earlier land use decisions were unsafe.  So rather than continue to construct buildings in ways that were hazardous, we established laws to insure that future structures would be safer.

As for the SUV example, let’s begin by noting that one cannot compare the rate of speed cars in parking lots travel as compared to cars driving down streets.  There is also the danger of assuming that everyone is going to exercise the caution and skill in observation exercised by Mr. McNeil.  I think we all can think of the reckless drivers we encounter more than we would like.  There is also the problem of people who may be distracted by problems such as unruly children, elderly persons who may not see well or react quickly, or drivers who are simply reckless.  It is the responsibility of land use boards to minimize these risks, not create them.

It is also critical to acknowledge that Mr. McNeil and his colleagues are establishing a very low bar for a standard.  I guarantee the readers of this blog that the city’s Planning Board would never have accepted this.  Apparently, when the ZBA evaluates building on alleys we now have a new standard.  One can be assured that future applicants will use this decision to support similar designs.  How will the ZBA be able to oppose such requests?

Potential Toxic Pollution And Magical Thinking

The resolution to approve these variances was drafted by Cheryl Grey and Susan Bardon.  It included language that would have required that the site be fully evaluated for the presence of toxic materials.

In his application Mr. Dawson had been required to submit documentation of any recorded spills or other indicators of pollution.  Oksana Lund is an alternate board member appointed by Joanne Yepsen and she is an attorney whose practice includes the real estate industry.  Ms. Lund noted that there were no recorded spills or accidents for the site as indicated in the original documentation. She asked that the language that would require a full site assessment be removed from the resolution.

She received support for her arguments from Keith Kaplan, Adam McNeil and from Brad Gallagher.

James Helicke could not contain himself.  He pointed out that this facility was established in 1929 and operated for decades in an environment that was lax to non-existent regarding the dangers of toxic materials.  For decades there was nothing to keep them from handling heavy metals which are considered to be highly toxic now.

Ms. Oksana was sure that there were other agencies out there that would insure the public safety.  It was noted that before materials can be removed from a site they must be tested.

I asked Ms. Barton why they had included that requirement in the resolution.  She told me that it insured that the city would be informed of potential hazards before excavation began.

Keith Kaplan rationalizes why there is no need to assess the property for potential hazards

 

The Usual: This Is The Only Financially Viable Plan For This Land The Applicant Claims!!!!

One of the standards that must be met in order to get a variance is that there is no other alternative available to do whatever the applicant wants to do.  Those who follow this blog will remember that when Sonny Bonacio wanted to rehab Moore Hall (The Pink Palace) he told the ZBA that the cost to remove Moore Hall made any other options for the property unfeasible.  Today Moore Hall is gone.

In the case of this project, Mr. Dawson claims that he and his architects looked at every other option and that none of them worked economically.  In addition, he alleged that the operation on the current site which had been closed down this winter would reopen if he were not awarded all his variances.

Common sense suggests that there is the real possibility that he has permanently closed the current Saratoga Springs site. Access to the property is limited and the size of the property itself makes an efficient operation problematic.  Given that he has opened at a new location in Ballston Spa, it would seem likely that consolidating the operation on one site would be more efficient. I fully admit that while there is logic to my argument, in the end it is conjecture.

Now again, the innocents among us might have expected the Board to grill Mr. Dawson on all of this.  They might have been expected to question his assertion that this was the only viable design.

They might have, but they didn’t.

The Newest Appointment By Mayor Kelly Appears To Be Quite Unfortunate

Chris Mathiesen donated his time for many years to the land use boards.  He has shared with me, on a number of occasions, his strong belief that the city is better served if the members of the land use boards are made up of people who are not associated with the real estate industry.  It is understandable that when you make your living serving in that industry, your predilection is towards policies that involve maximizing the value of the property to the owner.

Mr. Gallagher is a corporate attorney who was appointed as an alternate to sit on the ZBA by Mayor Joanne Yepsen. He was recently promoted to a seven year term as a regular member by Mayor Meg Kelly.  I looked him up on line.  Mr. Gallagher is an attorney with the law firm Barklay Damon.  His description on their site (http://barclaydamon.com/profiles/Brad-M-Gallagher )notes:

Negotiated favorable settlements for owners, general contractors and subcontractors in multi-party construction cases involving issues with roofing, siding, fire suppression systems and excavation work.

Mayor Yepsen also appointed Oksana Lund as an alternate to the ZBA.  Observing Gallagher’s and Lund’s support for granting the variances to Mr. Dawson pretty much demonstrates the validity of Chris’s assessment.

Hopefully, Mayor Kelly will take into account Chris Mathiesen’s  perspective when making future appointments to our land use boards.