Mohegan Lake Legal Defense Fund

History of this site

This site was originally set up to fight 3 of 5 zoning variances proposed by the FBC development at Sagamore Trail and Mohegan Ave that eliminates two single family homes while nearly quadrupling the parking and occupancy loads of the old Lakeland Jewish Center. That effort failed and the application is currently before the Planning Board.

While Save Mohegan Lake will continue to update you on that issue, we are moving on to all issues affecting the lake, such as Mohegan Lake Improvement District (MLID) meetings, agenda and budget. This site is not an official mouthpiece for MLID, but some updates will be provided on this site; the official site is located here.

We do it all here, so long as it's Mohegan Lake related. Feel free to submit comments, content, garage sale notices, police blotters, PSA's, essays on the virtues of our 105 acre ice rink, rants, raves, etc... We love it all.


Wednesday, October 26, 2011

10/27/2011: The Zoning Board Will Vote on FBC's Application

Seeing as a senior member of the board has made it clear, they--the Zoning Board of Appeals--can't vote against Faith Bible's five (5) zoning variances, it seems a fore-drawn conclusion all 5 variances will be approved, but we are still holding out hope that logic and reasoning will prevail.  

Below is the text of the document I submitted to the zoning board on 10/3/2011.

Zoning Board Members:

I appreciate your continued attention to detail and thoughtful consideration of this Faith Bible Church application.

You are being asked to consider a variance to the established laws of our town.  Mr. Capellini responded to my initial written submission by writing that I had based my entire argument on the wrong section of the town code.  He went on to cite Town Law of the state of new york, not the Town Code.  Specifically, section 267b(3)(b).

Let’s discuss NYS Town Law section 267b(3)(b).
Part 1:

(b)  In  making  its  determination, the zoning board of appeals shall  take into consideration the benefit to the applicant if the variance  is  granted,  as  weighed  against  the  detriment to the health, safety and  welfare of the neighborhood or community by such grant. In  making  such  determination  the board shall also consider: (1) whether an undesirable  change will be produced in  the  character  of  the  neighborhood  or  a  detriment  to  nearby  properties will be created by the granting of the  area variance;

I argue that the requested variances are the first step in a process that will have cause both undesirable changes to the character of the neighborhood and be a detriment to nearby properties. Furthermore, there are a couple of issues which require resolution before any variances should be considered, let alone approved. The first issue is that the proposed uses will require special permits to bring the land into conformity with the Yorktown code. The second issue is that one of the lots used for parking near the wetlands has restrictions and easements written into it’s deed that must be adhered to. The proposed changes have glaring deficits in available parking a clear zoning issue. Lastly, I believe that these variances are significant and would result in undue overdevelopment in an area that does not have the capacity to accommodate such development.

(Click on the "read more" button below, to continue reading)

(2) whether the benefit sought by the  applicant  can  be  achieved  by  some  method,  feasible for the applicant to pursue, other  than an area variance;

The benefit the applicant would receive would be a much larger building.  Note that the 14.5 foot variance into the rear yard is on a 150’-9” axis of the building.  The result is a few thousand square feet added to the building.  Site Designs parking analysis shows that the 86 cars proposed for the NEW building is 4 short of what the EXISTING church needs for parking on it’s highest load day.  It averages very close to that level. Do the math.  It makes no sense to grant variances to make a building bigger when, per the applicant's engineer, the much smaller existing facility already needs more than what the new building would provide. Granting the rear yard variance would be absurd.

(3)  whether  the  requested  area  variance  is  substantial;

Three of the five variances are substantial with the rear yard being the most severe.  

A side yard of 2 feet where 10 is required.  That’s almost wholesale elimination of the side yard.  A yard that abuts a residence.

A 12 foot retaining wall where 4.5 is allowed.  That’s nearly 3 times the legal limit.

A 14.5 foot encroachment into a required rear yard along a 150’-9” axis is enormous; a few thousand square feet extra (15’ x 150’-9” over two floors). It results in a vastly larger building, which is out of character with the surrounding residential neighborhood. Furthermore, the resulting parking load cannot be accommodated, as documented by the applicants own submissions.

All three of those variances are substantial.  The numbers don’t lie.  

(4)  whether  the  proposed  variance will have an adverse  effect or impact on the physical  or  environmental  conditions  in  the  neighborhood  or  district;

Not only will the neighborhood be adversely affected by an building that can’t be supported by it’s parking facilities, the variances will eliminate a very steep hill that Yorktown is charged with preserving. I’m including the GIS maps my wife prepared showing what areas Yorktown has mapped as “steep slopes” in the hopes of preserving them.  A 7,500 square foot church, school and auditorium is detrimental to the flavor of this neighborhood.  Granting variances to facilitate such is an affront to the physical and environment conditions of this residential neighborhood.  The variances are not needed to develop a new church.   However, a special permit to legalize the current occupancy is needed, regardless of whether the land is further developed.

(5) whether the alleged difficulty was  self-created, which consideration shall be relevant to the  decision  of  the board of appeals, but shall not necessarily preclude the granting of  the area variance.

This problem is self created because the applicant should have legally converted their two single family homes to increase the occupant load and establish a church occupancy when this change of occupancy occurred. Their failure to do so means that not only is the current occupancy illegal, but the issues of scale and parking are now being addressed as though they are existing problems. This is an error. The occupancy as a church is not legal. Therefore it is not “existing”. Had the occupancy been legalized previously, the required special use permits for those lots would already be in place, and the issues of the existing scale and parking would have to have been addressed previously.

Now that we have fully considered Mr. Capellini’s NYS Town Law section 267b(3)(b), let’s continue.

1. The character of the neighborhood.

I’ve not been a resident of Mohegan Lake for a long time.  However, in that short time, I’ve become very familiar with a vast majority of the long time residents and was recently elected--unanimously--to become Vice President of the Mohegan Highlands Property Owners Association.  This submission includes 55 signatures.  All of the signatures are from home owners within a 5 minute walk of the proposed new development and were gathered in the last ten (10) days.  Of those 55 signatures there are five (5) interested parties.  The folks who have signed represent the heart of the community. They comprise over 1,000 years of Mohegan Lake residency.  I do not attest to the character of the neighborhood alone, but with my neighbors who have lived here their whole life. Many have submitted their own heartfelt letters as well. Please make sure to carefully read all of the submitted letters.

Mr. Capellini wants to make this application about me personally, and the elevation of my roof line. That is a silly argument because no one has opposed the height variance. Even so, this cherry-picking of a single neighboring home to the exclusion of others does not accurately depict the character of the neighborhood. Instead of simply taking a few picture to show the character of the neighborhood, they chose to pay Joe Cermele to survey my house.  Note they did not survey a single home other than mine.  A few pictures would have more clearly given a more accurate context of the neighborhood.  But the applicant continues to try and obscure and mask their true proposal at great time and expense, to the potential detriment of the residential neighbors.    

I took a few photographs from the other side of the church (northeast) to give you a sense of the character of our neighborhood. That panorama (attached) clearly shows how small the adjacent properties are. Also, you can see the proximity of the single family home to the proposed parking lot. How is it possible to argue that a parking lot is in keeping with the character of the neighborhood? Until 5 or 6 years ago, there was a single family living in the home proposed to be demolished to accommodate the parking lot. The applicant illegally converted this structure and is now claiming hardship in order to further expand their occupancy.

The church currently occupies the site at levels equal to nearby St. Mary’s. Astoundingly, they want to build even larger and are seeking 5 variances to do so, and yet. Are all of these variances required to reasonably develop the land? Absolutely not.

It’s odd that the applicant would try to characterize the neighborhood based solely on the elevation of my roof.  Please keep in mind that we are, zoning wise, residential (R1-10). A church, or a school, or both, would require a special use permit.

The comparison of the roof of my 1,500 square foot home and the applicant’s proposed 7,500 square foot mega church and school (a use that has never been established on any of the five lots proposed to be combined; a use that also requires a special permit).  Mr. Capellini should be ashamed of himself for trying to make this about me personally. To repeat, the height variance is minimal and uncontested. Since it has become an issue though, please note that the applicant claims to have “changed the height” of the building without revising the proposed architectural plans. As a professional matter, this is highly questionable.

I ask each member of the board answer the question: what 7,500 square foot structure is closest to their home and how many parking spaces does it provide? I can tell you that near my home, St. Mary’s on route 6 comes no where close to that area, yet it provides more parking than is proposed. For me, the closest building of that size might be the vacant building, formerly a Circuit City, on route 6.  Considering the proposed uses and occupant levels, the applicant may want to consider buying or leasing said facility.

Mr. Capellini’s understanding of the neighborhood is intentionally misleading. He continually tries to characterize the neighborhood relative to my house and its roofline.  I think my neighbors who signed the petition opposing 3 of the 5 variances would take issue with that assertion. Again, please read their letters, some of which are quite strident, and see how many mention the height of roof lines.

When Pastor Zotolli notes in his affidavit to the zoning board that “92% of the improved lots lack conformity to the yard requirements of the Zoning Code,” Leaving aside that there are no documents that back up this assertion, the affidavit fails to mention that the alleged non-conformity is for small, single family homes. It goes without saying that not a single one requires a 15 foot encroachment into required 30 foot rear yard along a dimension of one hundred and fifty foot.

When you consider these variances to the law, I beg you to consider the current character of the neighborhood and the impact these variances will have.  

For your reference, my wife, an environmental engineer, prepared case studies of parking for two nearby churches and Faith Bible Church. It shows building areas, parking provided, etc...Those maps are made from the Westchester county GIS database. These case studies clearly demonstrate that the proposed discrepancy between occupancy and parking are unreasonable even if the building could be built within legal limits. No other church in the area has an occupant load anywhere near what Faith Bible is proposing, but those facilities have much more parking. Furthermore, none of said parking is located within the wetland buffer zone.  All of FBC’s proposed parking is within the buffer of a Class One wetland.

2. Special permits required - existing non-conformity is eliminated with demolition:

In introduction to a discussion of the required special permits, I want to emphasize one important detail the applicant initially neglected to mention to the zoning board. The developer, willfully--or lacking competence, did not correctly represent their application to the board. The developer did not clarify that 100% of the existing structures will be demolished. Yorktown will be required to issue a permit for the demolition.

They also neglected to notify 75% [?] of the legally interested parties when they notified the public of these variances, which, after my objections, resulted in the initial application being revoked.  The same application that incorrectly stated it was a “legalization of existing structures” was then kept hidden from interested parties. The board is commended for quickly and decisively overruling themselves in light of such facts. Considering this hostory, I hope the required skepticism is applied going forward.

Fact: when the existing structures are demolished, all existing non conformity is eliminated. This fact can be confirmed with special counsel appointed to the board. Thus the church use is not legal, but the church is further proposing to build a new school for 172 people.  Mr. Capellini fails to note that such uses require, per town code, a special use permit before they are allowed to be built. The zoning board should not put the cart before the horse. A variance cannot be granted to provide a building for two uses, when those two uses do not yet exist legally. Such legalization must occur before even considering the exceptions to the law that pertain to the structure that is meant to contain such uses, because there is no guarantee special use permits can be obtained. Do not over step your bounds and rule on a variance for use that has not been established.

Mr. Capellini  defensively declares that “Mr. Bray is wholly incorrect when he argues that a church and its related uses is not a permitted use in the R1-10 zone.” No one disputes that a church may become a permitted use. However Mr. Capellini should make note that a church requires a special use permit, rather than accusingly misrepresent my position. Furthermore, Mr. Capellini should make note that the site has never housed a school as proposed under the new development. Even if you buy Mr. Capellini’s shoddy argument that he has somehow established a special use permit on all five zoning lots the applicant allegedly owns, it is inarguable that a school use has never been established. Zoning requirements dictate a special use permit for a school. The zoning board should require the approval from the planning board. Mr. Capellini states it is in their jurisdiction.

The Zoning Board voluntarily revoked the first approval of these variances because the applicant--willfully or not--did not disclose the need for a variance to a majority of the interested parties.  Before you accept their characterization of the neighborhood as defined by a single roof line, I beg you to listen to the 55 neighbors who have petitioned to deny the three unreasonable variances.

Mr. Capellini cites section 300-170 of the code and states that my understanding is “not on point.” This nifty language is meant to distract from the fact that the existing buildings will be demolished in their entirety, removing any legal status for the uses contained within. Nothing will remain of the buildings, so the non-conforming uses could not be considered established even if there is accepted argument that they were once legal.  Larry Dalfino, the project architect, has repeatedly stated that on the public record that  0% of the existing 3 structures will remain.  Mr. Capellini is distorting the truth.

Continuing existing uses.

Except as otherwise provided in this article, the lawfully permitted use of land or buildings existing at the time of the adoption of this chapter, including uses of land or buildings under a special permit heretofore issued by the Board of Appeals, may be continued, although such use does not conform to the standards specified in this chapter for the zone in which such land or building is located. Said uses shall be deemed nonconforming uses, except as otherwise provided by § 300-177.

The point is that the section titled “Continuing existing uses” does not apply to existing buildings that are demolished. Mr. Dalfino explicitly represented that the existing buildings will be demolished in the public hearings. Nothing will remain. When the building ceases to exist, so does the use. The proposal you--the zoning board of appeals--is considering is for a new building.

Furthermore, this new building contains a school.  Regardless of whether or not you believe the church requires a special use permit to rebuilding a new building (it does, for the record), they are proposing a school.  Not an accessory school on Sundays.  The developer is proposing a school. A five day a week, all year long. The zoning board cannot approve a building variance for such illegal use.

Mr. Capellini would have you believe that the church does not require a special use permit. That argument has no basis in code.  In R1-10 districts, churches require a special use permit. Mr. Capellini attempts to paper over the obvious discrepancy by suggesting an “instant application before your Board and the Planning Board would rectify the alleged non-conformity.” This is a specious lawyer’s argument and it should be roundly dismissed.

The house the church bought and then illegally converted to a meeting hall and daycare facility never obtained the required special use permit.  I ask you to review the town’s tax rolls.  You should find that the red house on Sagamore Avenue that the developer owns was--as it is legally now per Building Department records--a single family home. A single family home that was on the Yorktown Tax rolls and now is not.

Once a building is demolished, any existing non conforming use must be re-established. Despite what Mr. Capellini will try to have you believe, you can’t grandfather something you demolish. Please confirm this with your special counsel. They now admit they are building a new development. The question of conforming use is clearly against them.

The Yorktown building department will confirm that the legal occupancy and use of the red house, which is used as a meeting hall and daycare. The legal use is a single family home.

3. Permanent easements and stipulations on the parking lot

The existing deed for one of the two wetland parking areas (the second deed has not been produced by the applicant), carries with it a host of permanent easements. The deed states that the lot shall never be encumbered by a mortgage--otherwise it must be returned to Shrub Oak Lake Estates (SOLE).  The SOLE agreement allowed the wetland lot for six parking spots, ensuring that if it was never used as the Lakeland Jewish Center had used it (with a much lower occupant load), that it would be returned to the SOLE homeowners association.  

The building department recommends that all five separate lots be combined, so we have a problem. We have a problem if there will be any mortgage on those five parcels. The deed explicitly requires the lot be returned to SOLE if it ever be encumbered with a mortgage. The applicant must pay for the entire development without a mortgage, if the lots are to be combined. The board must be provided with proof of funds to complete this job and no mortgage can be taken out on the newly combined lots. Otherwise that lot shall be returned to Shrub Oak Lake Estates, as per the deed.

4. Parking

There is a current deficit of parking. There will be a future deficit in parking. The current over occupancy clearly indicates the inability to enforce any current or proposed non-simultaneous occupancy. The future parking situation will be even worse.

The applicant is proposing 344 pew seats. I would argue that the occupant load is considerably larger, but for the moment let us assume the applicant’s proposal has a maximum capacity of 344 people. (It is worth noting that the the maximum current legal occupant load of the church is 100 people, 3 days a year for 3 hours. So we will address the dubiousness of this 344 number momentarily.)  

Site Design Consultants, a licensed engineer employed by the applicant, has submitted a document to the Zoning Board that shows that the highest person to vehicle ratio they achieved was 2.7. That was on Easter, 2011. The total occupant load was 242.  The total parking load was 90.

At this rate, 344 people would park 128 cars. The proposed number of spaces is 86. 128 spots needed. 86 spots proposed. But the problem is even worse than that.

Yorktown is either unable or unwilling to enforce their own laws. As stated above, the current legal occupancy for this building is only 100 persons, 3 days a year. The new development makes the potential for illegal use even worse, because the parking calculations only count the number of seats in the worship space. Nothing would prevent the developer from occupying the other floors and spaces at the same time.This occupant load would be over 600 people and require an unthinkable number of parking spaces. Self policing does not work presently, so it is certain that these variances would create a situation where over-use and over-parking is assured.  

There are further problems with the location of the proposed parking. The applicant produced one deed for one of the two wetland lots. Only one of those lots legally allows 6 cars to be parked there, per Yorktown records.  Not only do they park over 40 cars on the lot, they also park on a wetland lot that was never approved for parking. That is based on the last parking and septic approval and the survey from 2004, as provided by the applicant. The dimensions of the parking approval are much smaller than the dimensions on the proposal. That is because they are now trying to obtain approval to park on the additional wetland lot. Yorktown has no record of this approval and it is a condition the applicant created. Please refer to the letters from other interested parties to this application. In addition to that illegal development of a wetland lot

5. Summary

These variances are significant. The land can not accommodate the occupant and parking load that is proposed. The character of the neighborhood would be altered substantially by the out-of scale building, and the new expanses of parking lot. These intrusions do not have to occur. The Zoning Board may spare the neighborhood from this over-development simply by denying these unreasonable variances.

On the video tape of the 8/11/2011 ZBA hearing on this application, Mr. Orneck can be heard telling Mr. Fahey that the applicant will “article 78” if the board did not grant all of the variances.  He meant that the church would file an article 78 petition. This is a baseless scare tactic. A state judge would review the proceedings and dismiss the petition because an article 78 petition has basis only when the local authority fails to follow its own rules. Those rules have been challenged by the developer’s attempts to maneuver around them. These major variances would obviously be detrimental to our small residential neighborhood, so the law clearly indicates that you should deny them. The developers tried to speed their exceptions through the Zoning Board, but now our community is well informed of their plans. We are in agreement on the simple fact that the rules prohibit the kind of unreasonable development that is proposed. Furthermore, a civil rights attorney would see it the same way. If the variances are granted, such an attorney would be able to argue convincingly that overt favoritism was shown to this particular applicant.

There are other churches in better suited locations that you can look to for guidance. My wife prepared a case study comparing Faith Bible to St. Mary’s and United Methodist churches which are very close by.  See exhibit #  1.  The scale is the same for all three churches.   Note that the other two churches do not have schools like Faith Bible is proposal.

You must be very careful in your decision because the applicant is a church.  You do not have to grant every variance they are requesting.  It is a variance. It’s a deviation from what the current zoning laws.  You need a 30 foot rear yard.  That’s not much They will say the lot is of an irregular dimension and that it’s a hardship. That’s not true. The only reason it’s of an irregular shape is because it’s not 1 lot. It’s five separate lot. They propose to include 2 new unimproved parcels (one within the wetland buffer and the other abutting Lakeside Drive. They propose to incorporate a single family home into the development to create a parking lot.  Do you live in residential neighborhood. Whould you consider a parking lot to be representive and the character of the neighborhood.  Two of the five variances you are considering will allow the developer to create a larger parking lot that will come within 10 feet of the tiny residence to the northeast of the proposed super lot created by combining five

In the 6 months this issue has been before the board, not once was the question asked, “is a 50% elimination of the rear yard the minimum adjustment required to accommodate the applicant.”  Because it allows for increases the occupant load to a I base that on the undeniable fact, according to the applicant’s file this occurs on a 150’-9” in axis of the building.  That’s just shy of a New York City Block which is 200’-10”.

The most severe of all the variances is the nearly 50% elimination of the required rear yard.  Mr. Capellini argues that it’s of no consequence because there is a Yorktown lot behind it.   That it doesn’t block any ones’ view.  That’s such a superficial understanding of bulk standards and zoning as a whole.  The objection is not that it will be too close to a house or it blocks a view (I don’t object to the height variance, for the record).  It is that the 15 foot encrochment allows the building to be substantially larger than it otherwise would be under existing Yorktown zoning law.  In light of the parking analysis provided site design consultants, such a variance is wholly unnecessary.  In layman’s terms, the rear yard variance allows the developer to create a building that can’t be supported by the number of parking spaces the developer can provide.  It’s that simple.  If you deny any of the variances, this is the one that is most inappropriate for our neighborhood.  Deny it.

The church is already as big as St. Mary’s on route 6.  Their need for more space is self created.  The development, in its current form, is of such an inappropriate scale that it would be detrimental to the character and environment of my neighborhood.  Granting 3 of the 5 variance would directly facilitate to a larger building.  The applicant parks more cars on site than is proposed under the new development.  

I thank you for your thoughtful consideration of these remarks.

Kind regards,

Evan Bray
Vice President
Mohegan Highlands Property Owners Association

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