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.
(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.
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.
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.