Saratoga Springs Politics

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.

 

 

On April 23^rd the Zoning Board of Appeals at least matched if not exceeded the worse decision they have ever made when they granted approval for a project that will replace the scrap metal business on Franklin street with four houses.  I will be publishing a very long post about this shortly.  It has to be long because the ZBA managed to violate so many principles of proper planning and design in this one decision.  It was, as we fishermen often say, a whopper.  Thank god these people do not have the authority to site a nuclear plant in Saratoga Springs.

As part of writing my blog I visited the city’s Planning Office to review this project’s file.  I have visited the Planning Office on quite a few occasions to review the files of particular city plots/addresses.  In fact, I was there a week ago to look at file of a different plot.

For those of you not familiar with the Planning Office, they maintain a folder of blank Freedom of Information forms for the public to fill out.  If you want to view the file of a particular city plot/address you simple fill out this form and they give you the folder to review at the counter.  There is a real need for this convenience because real estate people and people in the building trades routinely need to review these files in order to perform work at these locations.  Before Scott Johnson was Mayor, you didn’t even have to fill out a form.  You just asked for the folder and they gave it to you.

On April 25^th I visited the Planning Office and requested the four folders that make up the project in question.  The clerk told me that I did not need the folders because all the documents in the file were available on line.  I explained to the clerk that at the ZBA meeting on Monday night, a memo from the applicant was referenced and this document was not available on the city’s website.  She asked me to wait.  When she returned she told me that I  would have to submit a formal FOIL request through the City Attorney to have access to the folders.  I told her that I was confused.  I reminded her that her office had FOIL forms for these kind of folders and that they were routinely available to review at the counter.  She repeated that I needed to make a formal request to the City Attorney.  I asked who had made this decision so I could talk to them.  She told me that information would not be available to me.

Dear reader, why would someone denying me access to this folder feel the need for anonymity?

So I went to the City Attorney’s office.  Vince DeLeonardis is the City Attorney.  He is one of the nicest people you ever want to meet and as far as my uninformed self can tell, he is an excellent lawyer.

He was kind enough to give me a few minutes from his busy schedule.  I asked him whether the city had changed its policy regarding documents in the Planning Office.  I described my experience to him.  He observed that technically all FOIL requests should go through his office.  One thing that I am familiar with is FOIL.  I told him that I understood this but that the fact remains that the Planning Office has its own forms and that it routinely grants access to the land use files for immediate examination in their office.  He told me that he would be happy to assist me in getting the folder.

The problem, however remained.  On what basis had I been denied access?  He made some conjectures but basically did not know.

Unresolved was whether the city was going to continue to allow people to fill out the FOIL form at the counter in the Planning Office.  There is a fundamental issue here regarding that over used word “transparency.”  Was there going to be a uniform and consistent policy about access to records or was access going to be at the whim of unidentified staff in that department?

As regards the particular documents I was seeking, I was sure that with Mr. DeLeonardis’s attention the issue of access would be resolved expeditiously.  Regrettably, I was wrong.  After I formally made the request on the city’s website I received the standard response indicating the city had received my request and had twenty business days to respond.  I then received an email from Trish Bush.  She is Mr. DeLeonardis’ executive assistant and the official FOIL officer.  Her email informed me that I would need to make an appointment with Assistant City Attorney Tony Izzo to have him review the files with me.

I wrote back to Mr. DeLeonadis:

---

From:    John Kaufmann [john.kaufmann21@gmail.com]

Sent:     Friday, April 27, 2018 3:44 PM

To:          ‘Vincent DeLeonardis’

Cc:          ‘Trish Bush’

Subject:               FOIL

It is always a pleasure to spend time with Tony Izzo, but why can’t I just visit the planning office and ask for the files?

---

I have not yet received an answer to this question.

I have written to the Mayor about this incident.  The last thing I want is for the city to require everyone to go through the burdensome and time consuming process of the regular FOIL for documents such as these.  This involves filling out a form on the city’s website or writing the city a letter.  The city is then required to respond within three business days acknowledging receipt of the request.  They then have up to twenty business days to either provide the documents or indicate the reason for denial.  People in the construction business in particular should not have go through that kind of delay.

The process used to access public records should not be arbitrary, though.  The city needs to spell out what circumstances require going through the formal FOIL steps rather than the expedited process that has been commonly  available in the Planning Office. They also need to indicate who will be deciding which steps must be followed.

I have written the  Mayor asking that in light of my recent experience, if she will clarify what the city policy is for access to records in the Planning  Office.

Of course the city in the end has the legal authority to put greater restrictions on people like me.  Given the history of planning issues in this city and my coverage of them it is, in the end, not surprising that the staff in the Planning Office would be less than cooperative when dealing with your blogger.

---

From:    John Kaufmann [john.kaufmann21@gmail.com]

Sent:     Wednesday, April 25, 2018 3:55 PM

To:          ‘Meg Kelly’; ‘Vincent DeLeonardis’

Subject:               FOIL standards

I have, on a number of occasions gone to the planning office to review the file of a particular plot.  In fact, the planning office maintains blank FOIL forms so that people wishing to simply review files can quickly fill them out and review the folders conveniently on site.  There was a time that they did not even require the filling out of a FOIL form.  I have several friends who are builders and they told me they had never been denied a file when they visited the planning office.

As I explained to Vince today, I went to the planning office to review the Dawson file.  Initially the staff person told me that because the plot had been the subject of a ZBA application that all the documents were available on line.  I explained to her that at Monday night’s meeting the applicant had referred to the fact that he had submitted a response to a determination by the Public Safety Office that the design of the project would create hazardous conditions.  This document was not on line.  She then said she would check on it.  When she returned she told me that I would need to formally submit a FOIL to the city attorney’s office in order to have access to the file.

I noted to her that given the past practices I would appreciate knowing who had decided that I would be denied immediate access to the file.  She refused to tell me.  The obvious question is that if the denial is legitimate, why would anyone insist on anonymity?

I then went to the city attorney’s office and Vince was kind enough to give me a few minutes to discuss this.  He noted that “technically” all FOILs should go through his office.  I told him I fully understood the law and that the city had the legal authority to insist on this standard but the reality is that in order to better serve the public and particularly builders and lawyers, the city as a matter of routine allowed for people to simply fill in the FOIL form in the planning office and get the folders.

I am not advocating that for purposes of consistency that all requests go through the city attorney’s office.  This would be unnecessarily burdensome for the construction/real estate industry and the public at large.

On the other hand, accessibility of documents should not be at the whim of people in the planning office.  Given the totally opaque nature of my denial, it is impossible to know if someone is being petty or if there is some legitimate reason for inconveniencing me.

If the city is no longer going to routinely make these plot folders available at the planning offices desk, I am requesting that your office establish a set of procedures that are publically available documenting under what circumstances folders regarding city plots must go through the city attorney’s office instead of being available in the planning office.

 

I would be grateful for response regarding this.

Bob Turner, former chair of the now-defunct Charter Review Commission, has filed another FOIL request for access to the digital images of the ballots cast in last November’s election in light of a recent court decision involving a FOIL request in Essex county. In the case of Kosmider v Whitney NY Supreme Court Justice Stanley Pritzker ruled that electronic ballots are public records which can be obtained through a FOIL request.

Turner told the Gazette that he and Gordon Boyd would count the ballots. Given the fact that there were over 9,000 votes cast, they will have their work cut out for them. Their hope is to find discrepancies which could be the grounds for going back to court to ask for an official recount. Their charter change proposal was defeated by 10 votes. Judge Nolan denied their last request for a recount citing a “lack of factual support” for their claims of election irregularities.

The Times Union article by Wendy Liberatore covering these developments contains some disturbing factual errors. Towards the end of her piece she writes:

“Most of the officials on the commission vehemently opposed any charter change and publicly campaigned against it, defying state law that requires elected officials remain neutral in a charter referendum”

Aside from the fact that the Mayor and Commissioner Mathiesen also did not remain neutral  but actively campaigned for the charter change , there is no such law that prohibits any of these elected officials from getting involved in these referendums.

Liberatore goes on to incorrectly state that the elected officials sitting on the new Charter Commission “will have the opportunity to raise their own salaries and extend their terms in office.”  Also not true. All proposed changes will be voted on by the public in November. No change can go into effect without voter approval.

At the April 23^rd meeting of the Charter Review Commission Chair and City Attorney Vince DeLeonardis addressed Ms. Liberatore’s  inaccurate reporting. His thoughtful observations are worth watching.

There have been a number of articles written looking at how newspapers are reacting  to having a growing presence on the web.  Apparently editors monitor the number of hits their reporters’ stories generate.  I have been struck by both the sensationalistic character of Times Union reporter Wendy Liberatore’s pieces and the frequency of errors of fact in these stories.   Perhaps this is the kind of reporting that attracts more hits but the paper’s indifference to sound journalistic practices is discouraging and as Vince points out not helpful in fostering an intelligent discussion of the issues by the public.

I was struck by the differences in how this story was reported by the other main newspapers that cover Saratoga Springs. Here are links to all three. Liberatore’s factual errors come at the end of her lengthy story.

Times Union Article

Saratogian Article

Gazette Article

 

A Felicitous Encounter With A building Inspector

Today (Thursday, April 19, 2018) I visited the planning office to look at the folder for a property in my neighborhood.

The owners of this property received a variance to build a very large garage beside their home.  In their application they asserted that the new building was just for parking cars and storage on the second floor.  The plans for the project included nothing about water and sewer connections or a bathroom.  After the approval of the variance and without submitting revised plans, they dug a trench and ran water and sewer to the property for a bathroom.    When the neighbors, fearing that the purpose of the new structure would include some kind of living space, notified the city of the violation, the city issued a stop work order.  I am not exactly clear about the dates, but the owner then tried to get approval to put the bathroom on the second floor.  The planning office rejected this for obvious reasons.

I was provided the file but I found it very confusing.  I found the letter advising the owner that they could not put the bathroom on the second floor, but I could not find the revised architectural drawing showing the bathroom on the first floor (there was a separate drawing of a  bathroom with a description stating it was on the first floor but all the document had was a stamp as to when it had been received).

I asked a clerk if someone could help me understand the file.  A short while later someone came.  He was Patrick Cogan who is the Assistant  Building and Construction Inspector.

I should note that Steve Shaw, the head of that department has kind of disappeared.  His email is not longer valid.  When I inquired about where he was I was told he is “on leave.”

I cannot speak highly enough about my encounter with Mr. Cogan.  He was very patient with me.  He carefully walked me through the documents. 

One of my concerns was over the thorny issue of what constituted a violation of inhabiting a building not zoned for that purpose.  I could find nothing in the zoning ordinance that precluded someone putting a bed, couch etc. in such a structure.  My layman’s logic was that a violation could only occur if someone was actually caught staying there.  If this was the case, it would seem that enforcement would be a major problem.

Mr. Cogan explained to me that in addition to the zoning ordinances, there is something called the International Residential Code.  He produced an enormous book with the code.  The standards for residential housing were adopted by the state of New York and the city is subject to them.  He showed me the relevant section.  It defines what a habitable space is.  Since this is a garage, it  cannot contain a habitable space:

[RB] HABITABLE SPACE.  A space in a building for living, sleeping, eating or cooking.  Bathrooms, toilet rooms, closets, halls, storage or utility spaces and similar areas are not considered habitable spaces.

Mr. Cogan explained to me that if they were to find a bed and other amenities in the garage, they would consider it a violation of the building code.  It would not be necessary to catch someone actually living there.

We also discussed the issue of permeability.  The significance here is that there must be enough permeability to absorb rain that may fall on the lot so that it does not cause problems for neighbors.   The same property has been granted a number of variances and it appears that much of the ground on the lot will be covered.  As a lay person, it looks like there could be problems absorbing the rain that may fall on this lot.

Mr. Cogan went into a lengthy discussion about the complex questions associated with permeability.

The thing that most impressed me was that Mr. Cogan was obviously concerned about protecting neighbors in general who might be adversely impacted by construction.  I felt really good when I left the planning office.  I wish that everyone in the planning department reflected his attitude.  

Mayor Kelly Hires Lynn Bachner As Her Executive Assistant

After leaving the planning department, I ran into Lynn Bachner.  Ms. Bachner had been the   Deputy in the Finance Department  under both Commissioners Matt McCabe and Michele Madigan and will now serve the Mayor as Executive Assistant.

Ms. Bachner, who holds a law degree, was an outstanding deputy.  She was famous for the many hours she put in as deputy.  Her extensive research made her knowledge of city finances encyclopedic.  She was universally admired in city hall. 

I continue to be impressed by Mayor Kelly’s management skills. The city is fortunate to have Ms. Bachner back.

Having praised Ms. Bachner, I would note that Michael Sharp who is her successor in the Finance Office, is also a dedicated and very gifted administrator.

 

 

Here is a stunning number.  According to the minutes of two years of Zoning Board of Appeals meetings, they have approved 105 of the 107 variances brought before them.

That number alone should tell you about how little the ZBA is concerned about the importance of adhering to the city’s zoning requirements or the concerns expressed to them by the neighbors of projects.

The neighbors of Murphy Lane met with Mayor Meg Kelly, city attorneys Vince DeLeonardis and Tony Izzo and city planner Susan Bardon.

 The neighbors were very impressive.  They were articulate, courteous, and well informed.  They documented a litany of abuses by the ZBA and the building inspector Steve Shaw.  Many of these have been documented on this blog.  As just one recent example, the neighbors noted that work done on Murphy Lane included construction done that was inconsistent with the plans that had been submitted to the city.  In this case, the city was aware that the owner had changed their design and was also aware that no revised plans had been submitted let alone approved.  So much for accountability.

 As documented on this blog, the poster child of inappropriate variance approval was the barn “rehab” on Murphy Lane.  This project violated the most basic concepts of appropriate design.  It involved building a house on a lot that was a fraction of the minimum area required.  You name the requirement, ZBA approved a variance for it.  The setbacks from the alley and the neighbors were radically reduced.  Parking?  Cut in half.  The worst thing was that it was on a narrow alley.  Only secondary buildings were supposed to be allowed on alleys.  The ZBA decision to approve this project was split but nevertheless, these variances like pretty much every variance, were granted.

So to clarify things I asked the attorneys, the city planner, and the Mayor whether they considered this kind of approval a serious problem.  Mr. DeLeonardis declined to answer.  He noted that he was required to defend the city boards.  I responded that the legal questions on this property had been decided in an agreement between the city and the owner and I was not asking him about the legality of it but the appropriateness in terms of good planning.  He declined to respond repeating what he viewed as his responsibilities as the city’s lawyer.  I asked the Mayor and she declined to discuss it.  Not surprisingly, Susan Bardon who works with the ZBA also did not respond.

Mayor Kelly did offer some thoughts on the ZBA as it relates to the charter.  It is unclear how much state law supersedes the city’s ability to change the ZBA.  The charter commission is considering shortening the terms of the ZBA (and maybe some other boards), limiting the number of terms allowed, and requiring approval by the full city council of mayoral appointments.  The Mayor was particularly emphatic on the latter.  This was impressive to me.  Politicians are normally jealous about any encroachment of their authority.  Currently, the Mayor has the sole authority to appoint the members of the land use boards.

I am not discouraged by the Mayor’s reticence to fully respond. I believe that she was thoroughly engaged in listening to the neighbors and sympathetic.  I think the Mayor is not comfortable speaking off the cuff and prefers to consider issues carefully before offering public comment.  My only concern is that all of this may be lost given all the other major issues on her plate.  She indicated that she planned to get back to the neighbors so we shall see.

The city received five bids for crafting the Uniformed Development Ordinance (UDO).

Calfee Strategic Solutions.  $295,000.00

Camiros, Ltd. $154,040.00

Duncan Associates. $125,000.00

Clarion Associates.  $279,285.00

Town Planning and Urban Design.  $249,979.00

None of these firms are located in the capital district

Interestingly, Duncan Associate’s proposal indicated it would work with the existing UDO document.  If they had responded to the previous RFP which was to complete the work done by Behan Planning and Design they would have been the sole bidder.

The city has $48,000.00 remaining from the original grant from the state.  I wonder where the balance of the cost will come from?

 

Short term rentals have become a growing problem nationally.  Imagine if someone purchased the house next door to you and turned it into a short term rental facility.  There is clearly potential for abuse.  Policing such houses is problematic.   The downsides are pretty obvious.  The city has minimal resources for policing these kinds of operations.  The house could end up with many people staying in it resulting in noise and parking problems.

The internet has made possible a radical expansion of short term rentals.  Managed properly this can be a boon to local people and to the city.  On the other hand, there is the real possibility that the more aggressive folks among us might buy up properties to exploit this market with little concern about the impact on neighborhoods.

The city has been wrestling with this problem for some time.  I recall discussing this with former Public Safety Commissioner Chris Mathiesen at least two years ago.

At the last City Council meeting, the Public Safety Deputy Commissioner did a presentation on this issue.  This follows an RFP issued earlier this year for a consulting firm to assist the city in regulating short term rentals.  According to the presentation, the city will be basing its program on one adopted by New Orleans.   Apparently they are going to be using Host Compliance LLC although the city is still negotiating with the firm.  Their proposal came with a price tag of $55,000.00.

The presentation emphasized the safety factor.  As the readers may know, a family renting a vacation house in Mexico recently died of some kind of asphyxiation due to a leaking gas line.  I thought the presentation was excessively upbeat. This is not going to be an easy process as borne out by the experience of New Orleans

There are many complex issues that will need to be addressed.

Having said this, I am wholly in support of this project.  Unmanaged these rentals could become a tremendous headache for our city.  In fact, it is my understanding that the city is already receiving complaints about properties that have been converted to meet this market.

Interestingly, AirBnb has taken a very cooperative approach with New Orleans and has been taking the same approach with other communities.  They are offering to assist in the collection of taxes based on the activity of the people renting out to travelers.

I did some research on what has been happening in New Orleans (NOLA).  Not surprisingly the road has had its bumps.  NOLA appears to be the first city that Host Compliance has started working with.  Among the hurdles they have run into has been the lack of cooperation with Expedia.  Expedia owns Vacation Rentals By Owner (VRBO) and HomeAway which have been the most popular websites for short term rentals.  I have used VRBO on a number of occasions.

It is my understanding that Host Compliance has told our city representatives that they have a way of monitoring sites like VRBO and figuring out where the rentals are.

I find this a bit hard to believe.  VRBO and HomeAway do not post the actual addresses on their websites although they pretty much always include pictures.  While the descriptions include the number of bedrooms and bathrooms, it is hard to believe that there is enough info to determine the actual location.  As the links to stories below show, New Orleans so far has not been able to identify successfully the Expedia related locations.

The contract for Host Compliance LLC was only awarded in December of 2016.  According to the Times Picayune:

“The regulations include establishing a dedicated enforcement unit, limiting whole-home rentals [JK:Not occupied by owner] to 90 days, allowing unfettered short-term rentals in owner-occupied housing, and an outright ban on short-term rentals in most of the French Quarter. The regulations also allow uncapped short-term rentals in certain commercial districts.”

“Mayor Mitch Landrieu’s administration and representatives of Airbnb said they expect the regulations to become a model for other cities because no other local government has passed an ordinance that includes a deal with Airbnb that includes what’s known as a “pass-through” registration system. The deal means Airbnb will share certain data with the city to enforce the 90-day limit, as well as enforce  safety regulations.”

An effort by one of the members of the NOLA council to further limit the program failed.  This council person wanted to limit the rentals to a tax status that proved it was owner occupied [JK: Homestead Exemption].  He also wanted to limit these rentals to two per block.

Housing preservationists opposed the ordinance as written because they believed it would adversely affect neighborhoods and would drive up the cost of rentals.

A representative of Landmarks Louisiana Society opposed the ordinance due to the fact that it did not include the Homestead Exemption.

I went to the NOLA city website and found the latest brochure explaining the program.  I saw that those with Homestead Exemptions now receive certain advantages over those without these exemptions.

As far as I can tell, while the application for a permit requires the floor plans of the rental along with affirmation of safety features, there is no requirement for an inspection by the city.

The permit fee for whole house, non-owner occupied residences is $150.00.

Apparently, the city established an enforcement department with a staff of seven.

Following a May startup, in June the city mailed out citations for 400 violations at 382 addresses.

In a June story in the Times Picayune, it was reported that Airbnb was having difficulties in removing violators from its website.  As an example, there were “dozens” of listings that exceeded the 10 person limit for addresses or were offering housing for numbers of people in violation of their permit.

The director of the office of Safety and Permits indicated that his seven person staff was busy reviewing online postings to check for unpermitted residences and also making field inspections.  He said they were pursuing the authority to issue administrative subpoenas to compel websites to provide addresses of rentals.  He also noted that AirBnb’s cooperation is voluntary, and he currently lacks the authority to require that postings be removed.

The city has an administrative hearing process that can result in fines of $500.00 per day for violators.

An April 3^rd article showed major cracks in the program.  Expedia was unwilling to share addresses of its postings with the city in order for the city to enforce its ordinance and ignored the city administrative subpoena for this information. Reflective of Expedia’s attitude, they accused the city of failing to cooperate with them.  They had offered to send advisories of the city’s ordinances to landlords posting properties.  They wanted the city to draft the warnings.

In the case of AirBnb, while the company provides data on past rental dates, they refused to provide data on reservations for future rentals that would exceed the ninety day limit.

Jane’s Place Sustainability Initiative presented a study they said showed that the enforcement process was failing badly.  They noted that there are 21 cases of hosts who have exceeded the 90 day limit and that these properties have been listed on average 221 days.

Jo Dedecker, a spokesperson for the group told the newspaper:

“That is an abysmal rate.  The current standards that the city and Airbnb have agreed upon for data sharing are so poor that bringing the rest of the platforms into compliance with the existing regulations will not do enough to make enforcement against bad actors easier and more expedient.”

Here are links to a number of interesting newspaper articles on the problems experienced by the City of New Orleans

Short Term Rentals Legalized

Airbnb Violations

Short Term Rental Issues

Expedia Vs The City of New Orleans

New Orleans Brochure For People Wishing To Join Short Term Rental Program

In today’s (April 16) Gazette, it was reported that beginning on May1, Fulton and Cayuga will join eighteen counties in New York that have agreements with AirBnb to collect tax on short term rentals.  AirBnb reported that in 2017 70 “hosts” had 4,500 “guests” and the average “host” made $6,300.00.

Where, you might ask, is Saratoga County?  Commissioner Michele Madigan has told the City Council she will be putting together a proposal to the county to implement a local occupancy tax on short term rentals.
So with all of this in mind, I wrote to Commissioner of Public Safety Peter Martin.  The Public Safety Department will be responsible for this program.

I asked him what fees the city anticipated charging landlords for this program.  He responded with the following:

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John,

The City sent out a request for proposal for short term rental management services several months ago.  We received several bids.  We have a qualifying bidder and are currently discussing specific terms before announcing the winning bid.  All bids (including fee proposals) are currently available to the public for inspection.  They are in the Accounts Department/ Purchasing Office (1^st floor of City Hall).

We have not yet determined whether there will be registration fees, inspection fees, or penalties, nor the amounts if we do charge such items.  Fees, if any, will have to be adopted by the city council.  I expect that we will discuss these at council meetings either later this spring or early summer.

Regards,

Peter R. Martin Commissioner of Public Safety City of Saratoga Springs

I met with Mayor Kelly and City Attorney Vince DeLeonardis on April 10.

I have had mixed experiences in dealing with elected officials as the readers of this blog know, but I was quite impressed with Mayor Kelly.  She was knowledgeable regarding the UDO and a number of other issues we discussed.  But what I also found encouraging was her manner of engagement.  She was clearly open and involved in the conversation.  This is not to say that she is not careful about what she says.  Her answers were often cautious and sometimes she declined to address my questions.  The things elected officials say have consequences.  Statements made can have unfortunate legal consequences and glib responses can risk damaging the trust in working relationships.  I simply felt that Ms. Kelly was answering my questions thoughtfully and her restraint appeared to be prudent.

When the city adopts a Comprehensive Plan it must then revise its zoning ordinances to reflect the changes from the previous Comprehensive Plan.

In addition to issues such as the details of the setbacks of buildings from roads and property lines, a Comprehensive Plan includes how the city plans to address many issues such as traffic, solid waste, storm water management, etc.

The New York State Energy Research and Development Authority gave the city a grant for $200,000.00 to go beyond simply amending its zoning laws.  They wanted to support a more comprehensive project that would more explicitly address questions of sustainability.

The city’s website describes the project as follows:

The City has received a grant from the New York State Energy Research and Development Authority (NYSERDA) to update its land use regulations (Zoning Ordinance, Subdivision Regulations, Standard Construction Details) and synchronize its policy documents (Open Space Master Plan, Complete Streets Policy, and the Urban and Community Forest Master Plan) in accordance with the newly updated Comprehensive Plan, into a coordinated, user-friendly document. 

The contract to accomplish this was awarded to Behan Planning and Design (BPD) in September of 2015 and was anticipated to be completed in a year.   The contract included a timetable for deliverables but the project was plagued by delays early on.  On September 15, 2017 BPD delivered to the city a draft that according to its cover page represented 80% of the final document.  << https://saratogaspringsudo.files.wordpress.com/2017/09/udo-full_17_0915.pdf  >>.   In accepting the document, Mayor Yepsen’s office appeared to acknowledge the document as representing the completion of the bulk of the work.  Around that time, a representative of BPL did a presentation of the work to the City Council.

At the first meeting of the City Council in 2018, the new mayor, Meg Kelly, offered a resolution terminating the contract with BPL.  There was no discussion as to why the contract was being terminated prior to completion and the motion was unanimously approved.  As best I can recall, the original contract with BPL (covered  by the NYSERDA grant) was for approximately $125,000.00 and of that the city had spent $92,000.00.

Mayor Kelly’s office then issued a new RFP to complete the work of BPL.  There were no responses to this RFP.

Subsequently the city issued a new RFP which pretty much looked like the original RFP that had been awarded to BPL.

In light of all of this, I requested to meet with Mayor Kelly to find out what had happened and how she expected all of this to play out now.

When I met with the Mayor I noted that when the Council terminated the contract with BPL there was no discussion. So what happened?

The Mayor told me that she did not think it would be helpful to revisit decisions made by her predecessor or to rehash the delays that plagued the project.  She told me that completing the UDO is essential to properly implement the Comprehensive Plan the city adopted so her concern is to get this done as expeditiously as possible.   Mayor Kelly told me that her concern was finding a consulting firm that was capable of addressing what is a very complex project and that could get it done with reasonable speed.  She indicated that they have been in touch with a number of firms appropriate to this project and those discussions lead her to believe that they will secure a firm that can do the work.

There is $48,000.00 left in the NYSERDA grant.  The mayor acknowledged that the cost of doing the work will likely exceed this.  I asked her where that money would come from.  She told me that it was best to first find out how much the project will cost and have a solid proposal available before seeking the additional funds.

The bids are due to be opened on April 18.

 

Saratoga Today ran an interesting editorial in their April 6-12 edition taking the Saratoga County Supervisors to task for paying a public relations firm $48,000.00 to represent them to the media and public.  According to the editorial, there are plans to expand the contract to $100,000.00. 

This is a link to the editorial which contains more info.  https://saratogatodaynewspaper.com/today-in-saratoga/editorials/item/8292-stop-spending-taxpayer-dollars-on-pr-firms

 I contacted our two Supervisors asking them to respond to address this issue.  I received a response from Tara Gaston (see below).  In a delicious example of irony, Matt Veitch did not respond.  Supervisor Veitch offers proof that they do not need the PR firm.  If Supervisors simply do not respond to inquiries why do they need of a public relations firm?

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John:

As you intimate, I am not clear on the reasoning for hiring a PR firm for the County. I do agree that quick and consistent responses to constituent and media requests is important, though, and perhaps that was part of the goal. I would definitely prefer to see monies go to programming, equipment replacement, or personnel salaries that I believe more directly benefit residents of the County.

Personally, it is my intention regardless to remain open to any requests for comment – as here – and have not seen any advice or directive for Supervisors to do otherwise. I also have not heard of this potential to increase the contract and will definitely look further into that as well.

– TNG

 Supervisor Tara N. Gaston, Saratoga Springs

tngaston@saratogacountyny.gov

 

 

 

The City Council has voted unanimously to make the City Attorney’s position full-time.

I think very highly of Vince DeLeonardis who has been holding this position part-time and will now be working full-time for the city.  Mr. DeLeonardis is a partner in a law firm in Albany.  He takes some risk leaving that position to work full-time for the city.  While he works for the entire Council, he serves at the pleasure of the Mayor and a change in administration could always put him at risk.  Having dealt with him on a number of occasions it is apparent that he thoroughly enjoys the kind of law involved in working for the city.

I credit  Mayor Kelly for taking the initiative to bring about this change.  I must say it is rather refreshing to have a Mayor who obviously enjoys making things happen rather than, like most politicians, focusing on photo opportunities and seeking the adulation of the public for what they do.

Here is a link to the Saratogian article: http://www.saratogian.com/general-news/20180326/saratoga-spring-city-council-upgrades-city-attorney-to-full-time-position