Appeal of Murphy Lane Stop Work Order Denied

The ZBA voted 5 to 0 to reject Jean D’Agostino’s appeal of the stop work order on her building at 39 Murphy Lane.  The resolution was not available before the meeting.  It went into some detail in responding to her attorney, James Fauci’s appeal letter.

I will post the resolution with comments when it is posted on the city’s website.

 

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New Stop Work Order Issued For Murphy Lane Barn: A Further Source of Embarrassment For ZBA

Zoning Board of Appeals In Action

Suicide

 

Some six months after the original stop work order for 39 Murphy Lane, the building inspector has issued a revised version.  This was prompted when the attorney for the building owner, Jean D’Agostino,  challenged the original order and asked that Steven Shaw, the building inspector explain it at a ZBA meeting.  Chairman Moore cut off the attorney and rather than make Mr. Shaw explain the order, directed that a revised order be crafted.  That after six months the ZBA finally crafted a stop work order of substance that they hope will stand up under court scrutiny graphically shows how ineptly this entire process has been handled.

There are a number of things that are interesting and instructive about the “new” revised version.

The most interesting one involves the building inspector’s role in approving the basement for this building.  In the original application approved by the ZBA, the barn was supposed to sit on a slab.  Subsequent to the approval of the original application, according to Mr. Shaw’s new stop work order, the applicant submitted a revised plan that was for a crawl space.  Mr. Shaw states that the change was “deemed minor.”  In spite of the fact that the slab was in the application approved by the ZBA, Mr. Shaw had the latitude to ok the change.  The logic was that  the new crawl space was presumed to have no effect regarding the variances granted.  Subsequently, the applicant decided to scrap the idea of a crawl space.  Instead the applicant jacked up the barn and poured a full basement.   Mr. Shaw then characterized the pouring of this full basement when they only had approval for a slab as “minor” because it “was not anticipated to affect the variances as approved.”  Mr. Shaw goes on to state, “As is our typical protocol [JK:My emphasis], you were allowed to proceed with the foundation pour on 12/22/15 under the condition that revised plans be submitted to show that the change was acceptable to your engineer.”  The letter from the engineer was not sent until three and a half months later.

The telling sentence was:

“The change was minor in nature as it was not anticipated to affect the variances as approved”

In fact, the approval of the full, raised basement would make compromising the variances inevitable.

As Shaw’s  new order documents, there were a cascade of changes that this “typical protocol” precipitated. 

Because the raised foundation was well above the original level of the building and therefore of the  ground, in order to meet New York State code, fill had to be brought in to adjust the landscape of the property:

“Fill had been brought in and a once level site is now much higher than the alley and adjoining properties “[my emphasis added].  This fill was the result of the foundation change and a requirement of the NYS Residential Code 401.3 to have adequate drainage away from the foundation walls.” 

Because the floor would be placed on top of the foundation, it significantly raised the height of the first floor from the height in the original plan approved by the ZBA.

Because the first floor was much higher now than the ground, the building now needed steps to be built in order to get into the building and thus caused “ further principle building coverage than the existing variance allows.”

So this “minor” change “as is our typical protocol” led inexorably to more zoning violations that would require more variances. 

It is not clear precisely when Mr. Shaw approved the full basement.  What the public should understand is that the barn, that was supposed to be rehabbed and not demolished, still existed after the basement was poured.  It had been jacked up and stood suspended over that basement.

Had Mr. Shaw insisted that the applicant seek approval from the ZBA to amend the plan there might still have been time to save the barn.

It should also be noted that the stop work order was not issued until after the applicant had demolished the barn and begun constructing a totally new house.  It was only after the neighbors descended on city hall to protest the demolition that a stop work order was issued.  It remains a matter of conjecture as to whether this project would have been fully constructed had the neighbors not acted.

It is easy to point all this out in hindsight.  The planning department is woefully understaffed.  This city has a major problem with code enforcement.  The root of the problem is that while the demands of the planning department have grown exponentially, the resources to run this critically important department have not.

There is also the human side of enforcement.  People like Mr. Shaw want to see our codes followed but they are also sensitive to the financial burden that excessively rigid applications of rules can have.

Under normal circumstances on a property appropriately zoned for a house, changing from a slab to a raised basement would have no adverse impact on the neighborhood in which the structure was located. 

Mr. Shaw and the members of his staff are under great pressure.  Many frustrated families and builders want their plans approved as soon as possible.  Delays cost money. 

The first moral of this story is not that Mr. Shaw made a mistake in allowing for changes that were at odds with the plans approved by the ZBA.  The moral is that Mr. Shaw is not given the time and resources to make it easier to more thoroughly consider the many, many changes thrown in front of him.

The second moral is the indifference of the ZBA to the repeated violations of zoning that they countenance.  Given that “do it and ask for forgiveness later” is routinely sustained without penalty, it is little wonder that situations like Murphy Lane occur.   The torturous history of 39 Murphy Lane is as much the ZBA’s fault as it is the applicant’s. 

To begin with, this project, which only passed by a four to three majority should never have been approved.  Attempting to convert a very small barn (more like a large shed) into a three bedroom home on a piece of property that was approximately one third the required minimum lot size was wrong.  The fact that it was being built on a narrow alley only reinforced how inappropriate the project was.

In its application to the ZBA the applicant not only described the project as a rehab of a barn, she explicitly stated that were they to tear down the barn it would have an adverse effect on the neighborhood.  Readers, this is what the owner asserted in her application that was approved by the ZBA.  The applicant is a realtor and not some naïve homeowner.  For the owner to then demolish the building without going back to the ZBA and then attempt to build a new home there is simply stunning.

In spite of all of this, given the extreme bias of the ZBA to developers, they then spent months trying to help this applicant complete this project. 

Readers, this meant that the neighbors ended up having to spend those same months researching and going to meetings.  Why should this have been necessary?  The ZBA should have told the applicant, you have grossly misrepresented this project (as the neighbors asserted to the ZBA many times during the public input period of the meetings) .  Instead of spending hours and hours at meetings exploring how the applicant might save this project, the ZBA  should have told her (as the ZBA attorney, Tony Izzo recommended) come back with your best plan that comes closest to the application we approved.  At that point, if the applicant’s best plan was inadequate, they should have told her that no additional variances will be granted effectively killing her project.

Here are links to the original stop work order and the new, revised order. 

Original Stop Work Order: StopWorkOrder1a

New Stop Work Order: StopOrder2

Below is a detailed review of the new stop order.

Per the instructions of the Zoning Board at their May meeting, Steven Shaw, the city building inspector  issued a revised stop work order. 

It is important to note that the original stop work order was dated January 21st, 2016.  This document simply states:

“The scope of work you are performing at 39 Murphy Lane is outside the scope of your permit.”

It advises Ms Jean D’Agostino, the owner, that she is to submit a revised set of plans to the engineer’s office and get approval from the Zoning Board of Appeals for them.

Ms. D’Agostino then emails back asking why the stop order and, in an email dated January 22, Shaw informs her that the changes have increased the height of the building and “increased the non-conformance.”  He also notes that the” additional steps in the setback will need to be addressed by the ZBA…”

A number of things are interesting about these documents.  First of all there is no reference in the first stop order to the application submitted by Ms D’Agostino that this was supposed to be a rehab and that the application explicitly ruled out removing the original building.  This is rather surprising because the building had indeed been removed from the site which contributed to the opposition by the neighbors.

It is also worth noting that the first stop work order makes no reference that the approved plan was for the barn to be on a slab and that the applicant had dug a full basement.

The new stop work order is dated July 8th.  This is almost six months after the original stop work order.

This one is far more comprehensive.  It now includes the fact that the construction had not conformed with the plans as pictured and as described in the application.

The new stop work order notes that the plans submitted in August which included a crawl space rather than the slab as stated in the original application presented to the ZBA was “deemed minor.”   It goes on to note that the applicant putting in a full basement without seeking approval for the revision was also considered minor as it “was not anticipated to affect the variances as approved.” [JK: Note the artful wording here in light of later events].  Mr. Shaw goes on to state, “As is our typical protocol, you were allowed to proceed with the foundation pour on 12/22/15 under the conditions that revised plans be submitted to show that the change was acceptable to your engineer.”  Shaw then observes that he did not get these plans until three and a half months after they had been requested and approximately four and a half months after the stop work order.

Shaw then states that between the time of the foundation pour inspection by Shaw and the issuance of the stop work order, “… the project had become significantly different from the approvals…”  “Fill had been brought in and a once level site is now much higher than the alley and adjoining properties.  This fill was the result of the foundation change and a requirement of the NYS Residential Code 401.3 to have adequate drainage away from the foundation walls.  An assessment should be done to ensure that this requirement is not being exceeded and thus creating a runoff problem in the alley and adjoining properties.  You may even qualify for that section’s exeption.”

Shaw states that the first floor is much higher than it was originally [when it was still a barn on a slab} and much higher than depicted in the applicants plans.  It requires the addition of a set of steps to be built which expand the footprint.  The new construction requires more coverage in the setback not considered by the ZBA requiring additional variances.

He finishes by stating that the ZBA’s decision on March 23,rd 2015 “clearly does not authorize either ‘tearing down the barn and starting new’ or a ‘removal of the existing barn’ [JK: as stated in their application] and then emphasizes the scope of the changes.

 

Jumel Place Neighbors Tell Their Story

One of the rewarding things about doing this blog is the ability to print long pieces that drill down into issues.  It is also the pleasure of exposing institutions that heretofore were able to act badly with impunity because the sunlight never shone on them.   Sandy Cohen has written a long piece detailing the July 11 meeting of the Zoning Board of Appeals that dealt with John Witt’s Downton Walk project.  I admire Ms. Cohen and her neighbors tremendously.  They knew that the chances of receiving justice from the ZBA were remote but their loyalty to their neighborhood and their friends was such that they truly fought the good fight.  Here is their story in their words:


A Letter to All Our Supporters

From the Neighbors of Downton Walk

 

With thanks to AQUA for the following song:

 

 

“It’s time to turn off the light.

This has been such a beautiful night.

We’ve served you a lot of delights

And some really wonderful sights.

 

My friend this is the end.

So long I’ll see you soon again.

Bye-bye, kissing you hi.

Someday we will be back together.

 

Chorus:

(Goodbye to the circus.

We hope you enjoyed the show.

Now it’s nearly at the end.

But we will be back you know . . .)

 

It will be back, you know

It will be back, you know.

 

You have given us all of the best.

You are beating inside our chest.

Staying with us as time has gone by.

Gave us hope when tide was high.

 

My friend, this is the end.

So long I’ll see you soon again.

Bye-bye, kissing you hi.

Someday we will be back together.

 

Chorus

 

The band played on

From dusk ‘til dawn.

And time is almost gone.

The beat goes on.

It’s almost done,

This music marathon.

 

It will be back, you know.

It will be back, you know.

Chorus (repeat)

We will be back, you know.

We will be back, you know.”

Step right up Ladies & Gentlemen . . . the circus has been in town . . .

 

And, for the past four months, that’s exactly what it has felt like! In as much as this was the first time for most of us participating in a run-in with the Zoning Board of Appeals, we have no idea if what we’ve all experienced is the norm; but if it hadn’t been so disturbing, it might have been entertaining.

 

All the elements were there: Ringmaster, troupe, clowns, dancing bears, and audience . . . Monday evening, July 11 was no exception – and possibly the most amazing performance thus far.

 

For possibly the first time ever, we were first on the agenda, so we missed out on the shenanigans of others. But they granted that position to Builder John Witt’s Downton Walk Proposal for 27 Jumel Place.

 

Ringmaster Bill Moore made sure to attend this one after his absence two weeks prior. No alternates this time around. This was going to be the end of public comment and the final vote – come hell or high water.

 

At this point, there were very few illusions that this resolution would be voted down.

 

Once public comment was open, our Attorney, Jonathan Tingley, took the mic to advise the Board that he received an email that morning advising him that Margaret Roohan and her husband had stepped up back in March, trying to purchase the Jumel lot that was still an active listing on the market. The Roohans were offering full price – well in excess of $100,000 more – for the land than John Witt had listed in his Land Development chart.

 

Sadly, however, the seller had to turn down the offer, as, reportedly, he no longer had access to a 48-hour contract addendum requiring Witt to either meet the offer or walk away. He also had received a threat from the Witt’s counsel that there would be extensive and costly litigation, should he decide to cancel the contract and accept the other offer. Both Tingley and our group knew there was no chance that this new builder nor we would get any sympathy from the Board, but the information was paving the way for proof of the contention that there was a much better and more feasible way available for using the land – one that hewed closely to the existing UR-3 zoning requirements and required fewer, if any, variances. Witt’s plans clearly are not the lowest variances, as required by law, as we understand the Roohans had planned to subdivide the lot to build four duplexes, a totally acceptable alternative under our ordinances.

 

Had our group known this earlier, we might have had time to do some sketches proving how it could be done. Witt had already rejected the possibility of subdivision of the land, which we still feel was the key mistake on his part. In essence, the Roohans were willing to pay 31% more and build 43% less on the same land. So, the feasibility argument should have been clear to the Board. The land could have been divided creatively and any variances would have affected only the new community internally and likely would have minimal effect on the surrounding homeowners.

 

Speaking in Witt’s favor were only individuals on his payroll: Tim Monahan, his Realtor, who claimed that Witt actually did pay a higher price for the land after the Roohan offer and he claimed the difference was not $114,000. Yet the price Witt has given on his land development cost was $370,000 – versus the $484,000 offer from Roohan, which, in our book, shows a difference of $114,000. He also advised the Board that the seller had been told that they would have to reimburse Witt for all costs to date, if his offer wasn’t accepted. Shortly thereafter, Libby Coreno, Witt’s Attorney, insisted that the land would revert to commercial and or other different uses that had been previously granted and not UR-3 if this application were not approved. This, however, is not the way our Zoning Ordinance reads. She also took her usual umbrage with one of Tingley’s statements: this time she insisted that she never used the term “Slam Dunk,” which he really never attributed to her, but, apparently, that is how she heard it. She heart-rendingly adjured the Board to recognize that only Witt has expended money on this property; and only Witt has spent his time dealing with this project for the last three years. (Cue the violins; and we really suppressed our desire to write: “Enter Dancing Bears” before this paragraph!)

 

Volunteer speaker after speaker, on our side of the eight-foot fence (no pun intended but entirely accurate) pleaded with the Board to listen and really hear what the neighbors were saying. Themes ranged from Kira Cohen offering 10 Significant Changes between this year’s application and those prior. (We noted an additional change to bolster our previous blog article, reworked, and added more information to what was previously printed, including that 10th point that the zoning actually had already reverted to UR-3.)

 

But the fact that it read differently didn’t faze Adam McNeill. He interrupted Cohen’s speech, as he did to Sam Brewton in the prior meeting, to question if this was the same letter (blog article) that they had received the during the last week. As she was speaking on her mother’s behalf and had not studied the previous letter, she couldn’t tell them exactly how they differed, but; thankfully, he allowed her to continue.

 

Cohen was followed by Maureen Curtin, who addressed the five criteria the Board had to consider before voting. As she elaborately deconstructed each point, Curtin spoke of the only neighbor who still came to speak for Witt in the last meeting – the next-door neighbor, on the lot’s west border, who said he did it only because he got Witt to agree to move the 8-foot stone wall/fence to 30”, rather than the 18” from the this man’s window, where it had originally been placed on the drawings. She also countered Coreno’s words, pointing out that, while Witt had been investing his money in that lot and this protracted review, the neighbors were trying to protect the money they have invested in their homes. For many of them, this is the largest investment they will ever make in their lives. Curtin reviewed previously offered information that five homes in today’s local market would bring in almost the same revenue as seven homes would have brought three years ago, when the project was first approved. This means that Witt could subdivide and build fewer homes, still making very close to the same money he would have made in 2013, which was his burden of proof. Curtin’s information proved that, if they were seriously considering these issues, the board’s vote on financial feasibility must be “no”. (They did stare well and looked like they might be listening.)

 

Anne Proulx, a lifelong Jumel Place neighbor, spoke next, recalling Witt’s visiting in her foyer several years ago — asking her to sign a petition in his favor – long before he had any drawings to show or was imparting any critical information about the size and breadth of the project. Happy at the prospect of demolishment of the unsightly building, she had signed for him but was now at the meeting to retract that endorsement, saying she was appalled at the magnitude of the planned development, something Witt had omitted mentioning during his visit. “It’s far too ambitious; bring it down,” she pled.

 

Blogger John Kaufmann was next in the center ring. He came to support the neighbors, speaking about why these people and much of the populace are upset with the lack of consideration they get in meetings such as these. He explained how zoning is supposed to be used to keep neighborhoods consistent by making only “reasonable and modest adjustments.” Kaufmann told them they had taken considerable license with this project in the past, and now it is just not consistent with the other homes in the neighborhood. He called out the Board for their “developer friendly” stance and admonished them to listen to the people they are supposed to represent.

 

Neighbor Gerald Mattison employed an interesting analogy, bringing a ream of paper to the microphone. Each of the 500 pieces of paper represented a signature on the change.org petition (which actually had reached 508 at last count) as well as close to 50 neighbors who had signed a paper petition in our favor, several of whom had originally been on Witt’s side but had subsequently withdrawn their support.

 

Since the dozens of neighbors opposing this project do not receive equal time and table position as the applicant does in presenting to the Board; nor do we receive answers to questions we ask about our legitimate concerns – the Board refuses “to “banter” with the public” – we question whether we, the neighbors, who will be most gravely and forever affected, were heard or treated fairly.

 

We presented on July 11, and previously at the June 20 meeting, legitimate and significant changes regarding this application, in comparison to that in 2013/14. But we question whether every Board member examined our presentations and gave them time and consideration equal to what they gave the applicant before making this important and lasting decision. We believe not.

 

Once the public comment session was closed, the Board debated the required State Environment Quality Review (SEQR). That’s when one could see where the divisions were. Those who were destined to vote in our favor were seeing the comparison to the actual modern zoning of the land vs those who could not let go of its last non-conforming use. They went so far as to ask the attorney which they should be considering. And, regardless of the attorney telling them that the lot is UR-3, they continued to assume that, if this application were rejected, it would revert to non-conforming use and not to true modern zoning (which is the actual requirement).

 

This writer, who served as an armchair quarterback – not in the room but watching, live in real time and listening closely – was hoarse by the end of the evening, from screaming out facts to them. It certainly would be nice if some members of the board would take at least some time to familiarize themselves with the finer points and implications of our city’s zoning ordinances.

 

Just before the vote however, Coreno interrupted to remind them, and have it written into the record, that the previous SEQR had been given a neg-dec (negative declaration, meaning there were no environmental issues) and the applicant expected the same this time around. This was after the public comment session was closed, but she was allowed to speak, because it was only procedural. After the requisite “neg-dec” was achieved on the SEQR (with a 5 yes, 1 no, and 1 abstention vote) the Board turned their attention to discussion and vote on the application itself. There was little pretense on where anyone stood. The votes were known before they were cast.

 

The only two who supported our side were Susan Steer and James Helicke, both of whom had been fair throughout the past several months. They fought hard in this meeting and really did try to make the others see their side. Helicke pointed out that the Board has lost sight of the substantiality of the variances being requested, ignoring the impact of the effect of those variances. He went so far to say that the whole purpose of this application was to circumvent the city’s subdivision regulations. He continued, saying that the Board had given very little consideration to the character of the neighborhood and the resultant detriment to the neighborhood this project would bring. He pointed out that the original approval spoke of providing housing for those who wished to downsize, which is certainly not what is going to be built there.

 

(Although Witt has stated in meetings that the largest units will be around 3,000 square feet, his drawings and charts show that the largest footprint – first-floor measurement only – is more than 2,700 square feet.  Once you add the roof overhangs, the first floor measures more than 2,900 square feet. The drawings indicate that these will be 2-1/2 to 3-story condos. It boggles the mind how much larger than 3,000 square feet that single structure will grow during construction. We would add that five of the seven homes start out with footprints larger than 2,000 square feet. And these measurements do not include the garages.)

 

Helicke was countered by McNeill, who actually admitted that much of the financial information they had been given had been — using his word — “obfuscated.” (Look it up; you’re gonna love it!) But he said he felt that only about 1/15 of their consideration had been financially based. He also reminded everyone that the Planning Board gave this project a unanimous approval. So, that’s another Board that might need an eye cast at it.

 

Steer concurred with what Helicke said and weighed in explaining that the condos proposed are not at all in character with the residential homes in the neighborhood. She also pointed out the change in pricing and the conflicting revenue information the Board had been given. She suggested that those who planned to vote in favor of the resolution think long and hard before doing so. Steer pointed out that the 2013 resolution mentioned how well the homes conformed to the neighborhood and explained that these new plans do not conform, being much larger than most of the homes already in the area. She was able to put herself in the shoes of the residents saying that she would be seriously upset if she lived in this neighborhood and would never impose on a neighborhood in this manner.

 

Members of the Board admitted that at the heart of the resolution was the “blight” of the building standing there now and dearth of applications that had come before. So Witt’s was the only proposal that had made it to the approval stage. Is that the measure by which we decide what is best for our neighborhoods? (If the building is such a blight – which we agree it is – why can’t the city condemn it and require the current owner to remove it? An empty lot would be much less of an eyesore.)

 

The end result was 5-2. Those favoring this overblown project were Bill Moore, Keith Kaplan, Adam McNeill, Skip Carlson, and Gary Hasbrouck. Those opposed were Susan Steer and James Helicke. Based on the previous discussion, the outcome was pretty much based on this being the better of the evils that had been proposed before, NOT the highest and best use of the land with minimum variances. (The two proposals they had seen were a Montessori school and a mixed-use development, both of which voluntarily pulled their own proposals from consideration.) So Witt’s is the only proposal that has made it to the approval stage. There had been no other housing applications to compare it to.

 

McNeill had already patted them all on the back for the “standard of care” they showed with their “two-page resolution” – as if space means quality. It’s important to note that part of their statement even gave approval to an extra swimming pool that was not included in the earlier 2014 application. We were left with insult added to injury, remembering that both Hasbrouck and McNeill had nerve enough to state that they would have expected, and the group against the application had “conveniently not submitted,” plans proving that subdivision would have worked financially with fewer and easier variances! They even implied that it might actually have made a difference to them.

 

ARE YOU KIDDING US? We’ve already spent upwards of $10,000 of our own money fighting this . . . Do you really think the citizens aren’t expending enough blood and treasure just to discern our rights and be listened to? Keep in mind that Keith Kaplan referred to the Board as “Finders of Facts”. Yet we “civilians” were the ones who had spent literally thousands of hours of our own time, away from our careers, reading, researching, writing, speaking, doing their math for them, and providing them with salient information. We went into this endeavor seeing the ZBA as an arm of the people of this City, put there to protect our zoning codes and to help developers find the best way to hew to and work within our ordinances. But, instead of realizing we were trying to help them see the reality of the situation and find a way to extract themselves from a mess the previous Board had gotten into by approving such an application, the majority of this Board decided to treat us as adversaries, squelching us at every turn. We had even gone to the expense of filing a legal appeal to give them something that would allow them to get out from under the Doctrine of Precedence to which they were otherwise bound, because it would bring into play the larger question of a Use Variance that would have trumped the entire application. Instead, they killed that. And then they expect us to hire architects and contractors to prove to an administrative board that four structures would take up less land than seven? That the sale of five homes at today’s selling prices could generate almost the same money as seven would have brought in 2013? And that eight homes (in four duplexes) would bring in more money than seven? “Elementary, my dear Watson.”

 

If this was something so important to them, why didn’t they take the time to ask the Planning Department to take a run at placing five homes on that lot and see how it would turn out, relative to lot lines and variances? That would certainly be considered due diligence – especially when we had already pointed out that the numbers Witt presented to them on the seven homes in 2016 required the total revenue to increase by more than $2 million dollars to make up for only $397,740 in extra land development costs in 2016. (Here’s the math we had already given them: their 2013 average minimum selling price of $640,000 increased to $930,000 in 2016 = an additional $290,000 x 7 homes = $2,030,000 added revenue.) We DID show them this math, and apparently they didn’t recognize the hint that the applicant’s “proof” pricing was somewhat overstated along with the obfuscation. The resolution, instead, said that the applicant’s financial presentation had “proportional consistency.” Makes one wonder what inconsistency looks like, doesn’t it?

 

And this is from a Board that was on the verge of approving a project of seven condos — a 600% area variance — about which they had zero accurate knowledge regarding lot coverage or permeability — on a single lot in a single-family/two-family neighborhood. These are the people who are vested with upholding and protection of our zoning ordinances. And they reward our trust by allowing a developer to circumvent and subvert our subdivision codes and set a precedent for every developer that follows to say, “But you allowed Witt to do it. I don’t want to apply for a subdivision. I just want to increase the number of structures on my lot.”

 

What our Zoning Board of Appeals did on July 11, whether they see it that way or not, could be considered Spot Zoning, and it is considered unequal treatment. It has been defined as “making unjustified exceptions for a parcel or parcels within a district.” Whether you want to see it as I still see it: allowing condominiums (which are defined in city and state ordinances as multifamily, regardless of the opinion of the ZBA) in a UR-3 single family/two-family district; or if you see it, as two ZBA members choose to see it: throwing away our subdivision codes and allowing a developer to increase by 600% the structures allowed on one lot, it is spot zoning, and it sets a dangerous precedent for every developer to come.

 

The ironic postscript is that our group and all of our supporters were actually working in Mr. Witt’s best interests whether or not he can see that. He has stated that he won’t start building until all the condos are sold. Sonny Bonacio, who has extreme experience in this area, has already advised the Board that condos selling for $600,000 or higher (which will be the price of the majority of Witt’s units) can take years to sell. What happens if Bonacio is right? If Witt goes ahead and builds the first units that sell in a timely manner, he has to pay the balance of the condo dues on those that remain unbuilt and unsold. If he waits until they are all sold, the worst-case scenario is he’ll lose the initial buyers who likely won’t want to wait for several years.

 

What we do know is that, prior to the June 20 meeting, Witt did sign a note for that one neighbor previously mentioned, promising to build the fence a bit farther inside the Downton Walk lot line, so that the gentleman would actually have enough space to maintain the exterior of his home, so he could actually see out of the window, and so he could open the door of his home wide enough to move furniture in and out. That was a lovely gesture . . . but it will likely be worthless after all the condos are sold. Witt will be gone. His signature will be worth nothing. Instead, the neighbor will have to deal with seven condo owners and, not inconceivably, litigation, if any issue comes up about moving that fence at a later date – unless, of course, Witt legally deeds an easement to the neighbor before he closes on any of his sales.

 

All that said, Downton Walk, with its 600% variance in number of buildings, 53++% more building coverage, 90% and 74% closer setbacks, and 33% higher fences likely will be built.

 

Although the music has stopped, and this tent has folded, the Saratoga Neighbors For Zoning Enforcement is not going away. Perhaps, eventually, if they see and hear from enough of us the ZBA will realize we are trying to help them, we mean business and we deserve some attention.

 

Now that the circus has pulled out, we are the people who live in this neighborhood, and we are the people who will suffer any negative effects because of the decision of five members of this Zoning Board of Appeals.

 

But, you were with us, show after show, and we want to say thank you for all your support during this most trying time. You cannot imagine how good it felt to watch the petition signature list grow, to read your comments – on the petition and in the Facebook groups. It was awesome to see so many of you at the meetings speaking on our behalf and on behalf of all the citizens of Saratoga who have been wronged by this decision and the orientation of the Board. The “Thank You” includes John Kauffman for giving us blog space and The Saratogian whose reporters did check in with us periodically and also gave us some space to vent. As difficult as it still was, it made our fight so much easier, and we can never thank you enough.

 

Let’s hope for better luck next time. Because the greater fight still goes on. We will be in touch.

 

 

“It will be back, you know . . .

We will be back, you know.”

 

 

 

P.S. We wanted to stop. We really did. But, then we listened again to the reading of the resolution and they got to those dreaded pools that we’ve been harping on for two weeks. This is what happened:

 

Even though there is a swimming pool that has been added since 2013, the Board found that, because no variance had been requested for the additional pool, it (I guess, magically) causes no significant change. Forget lot coverage. Forget permeability. Oh yeah, sorry, they already forgot about that . . . In the meeting on June 20, the developer noted that no measurements for any of the four pools have been included in those lot coverage and permeability figures anyway. At that meeting Keith Kaplan actually made an effort to put limits on allowances for pools, possibly eliminating this one, since the developer is already being granted 52% more coverage variance than allowed. But, for some reason, in the final cut of the resolution, no limits on pools were included. This means we don’t even know how much higher than the excessive 52% lot coverage will be. And remember, the Planning Board also gave these plans – with that missing information – a unanimous approval.

 

But, the resolution actually reads that, because the previous Board approved the original application (without footprint, lot coverage, or permeability information for any of the pools), five members of this Board saw no reason to ask for such information this time around. We’ll repeat their exact words, “Since no additional variances are being requested for pools, the Board concludes it [the extra pool] causes no significant change.” This means that when they saw a mistake, and they were given the opportunity to correct it, they simply ignored it – although they did make formal note of that in their resolution – and moved on. Please keep in mind that the neighbors saw these issues and pointed them out, time and time again, throughout the process – verbally and in writing. And, no, the Board is not expecting any future variances to be filed to fix this pool issue. The pools have all been approved.

 

Its pains us that, even when there was a dot of light in the darkness – that, perhaps we had been heard at least about the pools and the Board looked like it was about to set some limits – it came to naught. Once again, the developer was denied nothing.

 

 

 

 

The ZBA: In Defense Of Empathy

Following the vote by the ZBA to approve Downton Walk on Monday , there was a troubling incident that speaks to the culture of the ZBA.   As people were filing out, a woman pointed at ZBA member Adam McNeil who led the support for Downton Walk, and said “shame on you.”  Her home abuts the proposed project.  The board had approved a variance that put an eight foot fence only one foot from the edge of her house.  As she explained to me later, aside from its intrusive proximity, this will block the sun from her home.

Mr. McNeil unleashed his unrestrained anger at this woman.  He berated her about her lack of respect for what he characterized as the professional standards of the ZBA.  Now on one level, his response was human.  None of us enjoy being criticized, especially in such a devastating way.  On the other hand, it demonstrated a profound lack of empathy and an utter lack of understanding of the effect the actions of this powerful body and his vote has on people’s lives.

I would also note that at an earlier meeting, Mr. McNeil used the privilege of being on this board to excoriate its Critics.  Among the targets of his anger were the neighbors of the Moore Hall project who had criticized board member Gary Hasbrouck for going out for drinks with Sonny Bonacio, the Moore Hall developer, and his attorney, Michael Toohey immediately following a ZBA session that dealt with this project. Mr. McNeil expressed outrage that the public should attack Mr. Hasbrouck who devotes many, many hours to public service on the ZBA.  I would ask Mr. McNeil to review the stories about ex-president Bill Clinton paying a social visit with Attorney General Loretta Lynch while the Justice Department was considering charges against Hillary Clinton for her use of a private server during her tenure as Secretary of State.  As with Gary Hasbrouk’s social visit, no one knows what Lynch and Clinton discussed. The public attacks on their meeting were nevertheless explosive.  Even Mrs. Clinton’s supporters considered the meeting of the two as ill advised. 

Bear in mind, that the way the ZBA meetings are run, while the ZBA routinely carries on discussions directly with applicants, there is no vehicle for the people attacked by board members like Mr. McNeil to defend themselves.  The “public comment” period involves the opportunity for people to address the ZBA but the board has the privilege of simply ignoring comments.  When the board members do comment, the public has no opportunity follow up.

All of this simply points to how insular and insensitive many (not all) of this hugely powerful board are.

 

 

Zoning Board of Appeals Approves Downton Walk

I am writing this without my editor who is cruising the Seine at the moment. This is like walking a grammar/spelling tight rope without a net.  I will write something longer on these events that will benefit from her tact and knowledge of the spelling arts.

The Zoning Board of Appeals reached its decision on Downton Walk this evening. It split the way it usually does.  James Helicke and Susan Steer spoke in opposition to the project.  Both of them deserve a great deal of credit for the clarity and substance of their comments.  In contrast, Adam McNeil was Downton Walk’s champion and received the support of the other four ZBA members.

If my editor were here she would probably stop me from noting the following: While Mayor Yepsen appointed both Helicke and Steer she also reappointed William Moore for seven more years to head this powerful board.   Why she would reappoint Moore as chair is hard to understand but it leaves unclear what the future of this board will be under her administration.

Impartiality, Open Government And The Sad State of the ZBA

My decision to start  blogging on public policy issues did not come out of a void.  Increasingly the public has become frustrated by the disconnect between their concerns and the decision making bodies that affect their lives.  Rather than react passively, people are turning out to meetings, contacting their legislators, and finding vehicles to educate those around them.

Not surprisingly, those same institutions are under strain.  For many of the individuals who serve on these bodies and who devote countless hours attending meetings, this is a difficult period.  Regrettably, it is not unusual for the public to be the recipient of anger and resentment from board members who had grown used to a passive public.

Below is an exchange between attorney Mark Schachner who specializes in land  use issues for the city and myself.  He is responding on behalf of William Moore, the chairman of the Zoning Board of Appeals, who I had emailed asking questions about recent events involving his board.

The central issues are as follows.  Does the ZBA’s meeting structure favor the applicants for zoning variances over the people whose neighborhoods are being impacted?  Did the decision on how to address this problem occur outside of the formal meetings of the ZBA? If so, did this constitute a violation of the Open Meetings Law?  Finally, if it did not violate the law, did the public still deserve to observe the discussion at which this decision was reached?

As further background, Mr. Moore did not reply to my original email and I followed up with two more courteous requests.

On July 8th, I received Attorney Schachner’s letter.

I am fortunate to have readers who are interested in going beyond sound bites.  I expect they will find these documents of considerable interest.


The Original Email (There were two follow ups)

From: John Kaufmann []

Sent: Thursday, June 23, 2016 4:25 PM

To: ‘William Moore’

Cc: ‘Joanne Yepsen’; ‘Michele Madigan’; ‘Christian Mathiesen’; ‘John Franck’; ‘Vincent DeLeonardis’

Subject: ZBA Compliance With Open Meetings Law

At the beginning of the May 9th meeting of the Zoning Board of Appeals, you announced that hence forth there would be a new policy on seating.  You indicated that in the future applicants to the ZBA would be asked to leave the table at which members of the ZBA were seated and sit in the gallery during the public comment period.

While this is an improvement over the previous policy it fails to live up to the standard of impartiality advised by attorney Mark Schachner at the ethics training attended by yourself and the members of the board.  To wit, that the boards should seek the highest standards as regards impartiality and openness and that having the applicant sit at the table with the board was not a good policy.

As you may be aware, the Planning Board requires applicants as well as the public to advocate from behind the railing from the gallery.  In fact, historically this was the policy of the ZBA as well.

According to Commissioner Chris Mathiesen, both the public and the applicant were allowed to come up to the table when materials were presented that could not be seen from the gallery.  This made it possible for the public to observe any hard copy documents presented by the applicant.  Other than under those circumstances, as the Planning Board currently requires, both the applicant and the public were relegated to the gallery.  This represented the highest standards consistent with the advice offered by Mr. Schachner.

I believe that it was Mr. Schacher’s point that seating applicants with you at the table sends an implicit, if unintentional, message about the status of applicants as compared to the public. I am respectfully requesting that you respond by explaining why you chose not to return to this policy but to continue to have applicants sit with you at the table during their presentation while relegating the public to the gallery.

I have reviewed the videos of the ZBA and I cannot find any meeting at which you discussed this change of policy.  Having observed your interactions with your board, I know how inclusive you are with them.  I find it very difficult to believe that you would have made this policy change without both consulting them and having a thoughtful conversation on this sensitive issue.  It is possible that I missed this event.  I respectfully ask that you respond by indicating at which meeting this decision was reached.

At your June 6 meeting Adam McNeil gave an impassioned statement over his frustration at what he characterized as the public’s unfair criticism of the members of the ethics board.  Ms. Steer seconded his comments.  I have a certain sympathy for their frustration.  There is no question that the members of this board give extraordinarily of their time as members of this board.  I would respectfully point out, however, that the board’s deliberations have a profound impact on the lives of the people of this city.  It is also fully understandable that the people who live in the neighborhoods affected by the decisions of this board often find the decisions of this board both threatening and painful.   The members of the public who have addressed this board have shown considerable restraint and respect.  The fact that Mr. McNeil and Ms. Steer cannot understand why, for example, the public would be disturbed that a member of the board would go out for drinks with an applicant and his lawyer after a meeting unfortunately reflects a certain lack of empathy and deference to the public .

I would be appreciate if you could respond to my following two questions at your earliest convenience.

*Why did you choose to continue to have applicants sit at the table with the board during their presentations rather than in the gallery as was past practice with the ZBA and current practice with the Planning Board?

*At which ZBA meeting was this change discussed?

Thank you



Attorney Mark Schachner’s Reply [I am including a link to a PDF for those who have trouble reading this image: Letter from Schachner ]

Letter from Schachner-1

Letter from Schachner-2

Letter From Schachner 3a


My Reply To Mr. Schachner

From: John Kaufmann []

Sent: Saturday, July 09, 2016 8:18 AM

To: Mark Schachner (mschachner@mmshlaw.com)

Cc: ‘Kerry Miller’; ‘Joanne Yepsen’; ‘Christian Mathiesen’; ‘John Franck’;
‘Michele Madigan’; ‘Tony Izzo’; ‘Vincent DeLeonardis’; ‘William
Moore’; ‘Bradley.Burge@saratoga-springs.org’; ‘Susan Barden’

Subject: RE: City of Saratoga Springs

Thank you for your long and thoughtful letter.

I think if you review my email you will see that I never asserted
that there was any legal issue that would compel the Zoning
Board of Appeals to follow the example of the Planning Board in
the manner with which it receives input from the public.

While I am not surprised that you chose not to venture into a
substantive discussion of the merits of the Planning Board’s
approach I thought you articulated my basic concern quite well
at the original training you did. I only wish the members of the
Zoning Board of Appeals had taken your advice more to heart.

I am however disappointed at your defense/characterization of
the manner by which the change to the seating policy was
determined. Based on your own comments at the training, the
issue of impartiality is not a frivolous one and as such deserves
serious consideration. Not being a lawyer, I will accept the fact
that a discussion over an issue like this can be carried out
informally outside of public view without violating the open
meetings law.

Having said that, I think Mr. Moore and his board would have
been better served had you counseled them that encouraging
trust by discussing sensitive issues like this in full public view
would avoid unnecessary conflict and help to encourage a sense
of trust in the community. Explaining a policy change like this
seems like a modest endeavor and being obdurate about
offering an explanation does not become the chairman of an
important board.

I want to thank you and the mayor, who I assume asked you to
address this, for your letter.