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, January 18, 2012

Evan Daniel Bray v. Town of Yorktown Zoning Board of Appeals

Gentle Reader,

I present to you, typos and all, my article 78 petition without commentary.  If you would like to see any of the exhibits, you can email me at and I will send you any exhibit you would like to see; most are already posted on this site.  The return date is Valentine's date (that's the earliest date the judge will render a decision).  Stay tuned:

The petition of, EVAN DANIEL BRAY complaining of the Respondent,TOWN OF YORKTOWN ZONING BOARD OF APPEALS (ZBA) respectfully alleges:
1. Petitioner EVAN DANIEL BRAY owns and lives in a single family home with his wife, three daughters (all 5 years old or younger) at 3496 Mohegan Avenue, Mohegan Lake, New York 10547.  Petitioner has an architecture degree from The Cooper Union for the Advancement of Science and Art and has worked for over 10 years as a building code and zoning consultant.  Petitioner identified himself as such to the respondent at the public hearings.
2. Respondent TOWN OF YORKTOWN ZONING BOARD OF APPEALS  “acts as an interpreter of the town code and makes judgments on its meaning on specific cases, grants variances upon appeal, and authorizes the issuance of permits for special uses in districts in which such uses are permitted,” as the boards powers and duties are summarized on the Town of Yorktown website.  Refer to section 300-201 of Yorktown zoning ordinances, powers and duties of the board of appeals.

3. This petition challenges final determination (exhibit 15) voted on by the ZBA on December 8th, 2011 and recorded with the Yorktown Town Clerk on December 12th, 2011 for application #32/11 for the APPLICANT, Faith Bible Church located at 3500 Mohegan Avenue.  The five parcels the applicant owns (see paragraph #7) are immediately adjacent to the petitioner’s primary residence. Specifically, this petition challenges 3 of the 4 zoning variances approved as follows: 1) a rear yard of 14 and one-half feet where 30 feet are required, 2) a retaining wall within the side yard having a height of 12 feet where 4 and one-half foot is allowed, 3) providing a two foot side yard where 12 feet are required.
4.  The respondent originally approved ZBA application #11/11 for the same applicant at a public ZBA on March 24th, 2011 over petitioner’s objections.  After the petitioner pointed out deficiencies and misrepresentation on the application, the respondent revoked its approval at the next ZBA hearing (see ZBA meeting minutes April 28th, 2011).  Applicant submitted a corrected application indicating that none of the existing structures would be legalized, and were--in fact--a new development(exhibits 1 and 2, the original application and revised application).
5.  Public hearings for the revised application, #32/11, were held on June 23, 2011, August 11, 2011, and September 22, 2011
6.  The four (4) zoning variances approved by the respondent’s final determination are as follows: 1) a rear yard of 14 and one-half feet where 30 feet are required, 2) a front yard of 29 feet where 30 feet are required [uncontested], 3) a retaining wall within the side yard having a height of 12 feet where 4 and one-half foot is allowed, 4) providing a two foot side yard where 12 feet are required.
7. The applicant currently owns five (5) zoning lots: 9, 10, 50, 53, 54 .  Attached is exhibit 3, which is a GIS map submitted to the ZBA  file for application #32/11 with lot numbers and text added for reference. On lot 53 is a single family home.  On lot 54 is a single family and and a small religious structure that, per Yorktown records (exhibit 4), allowed a maximum occupancy of 80 to 100 people to occupy the structure for 3 hours on 3 days per year..  Lot 50 is unimproved woodland.  Lots 9 and 10 were approved for parking for 6 cars in conjunction with the religious structure, per the “Approval and Plan Application under Zoning Ordinance of 1941 and State Building Code April 1953 re:Lakeland Jewish Center--Permit No. 6816 dated November 14, 1958”  (exhibit 4).   Also, please refer to exhibit 5, the applicant’s most recent site plan in the applicant’s file revised May 25, 2011.
8.  Yorktown Building Code section 15-7 concerning certificates of occupancy states: “[a] certificate of occupancy shall be required for any work which is the subject of a building permit and for all structures, buildings, or portions thereof, which are converted from one use or occupancy classification or subclassification to another.” On March 16, 2011, the Building Department wrote a memorandum to the respondent concerning the subject (exhibit 6).  The building inspector notes “[b]uilding department records indicate that the  two siingle-family houses, located (one each) on lots 53 and 54, were constructed prior to the 1932 enactment of zoning, in the Town of Yorktown, and thus are legally non-conforming...Both of these houses have subsequently changed from dwelling to ancillary church uses such as meeting rooms and offices.  No record of any Town approvals (e.g. site plan, building permit) for this change of use was found.”  The applicant’s architect, Mr. Dalfino notes in his transmittal, sketches and revised 1st floor plan of September 22, 2011 (exhibit 7) notes that “[a]ll occupancy and Use issues will be reviewed and clarified by the Building Department.”   The building department has unequivocally stated in writing that legally 2 of the 3  structures owned by the applicant remain legal, single-family homes.  Also see applicant’s site plan indicating two homes and a small house of worship(exhibit 6).  The small house of worship has a maximum occupant load of 80 to 100 people, 3 hours a day, on 3 days per year(exhibit 4).
9.The two single family homes are occupied contrary to existing town approvals, and are subsequently in violation of town code; refer to exhibit 7: transmittal, sketches and revised first floor plan from applicant’s architect, Laurence Dalfino, to the respondent indicating the actual versus legal occupancy along with “revised first floor plan building code” dated September 22, 2011.  A previous note on the previously submitted February 24, 2011, building code plan of the first floor represented that the entire first floor would be “non-simultaneous occupancy” (exhibit 8); that plan showed a total occupant load of 378 people on the first floor (note: that’s more than the proposed main use on the second floor of 344 people).  Exhibit 8, revised September 22, 2011 states that “ENTIRE FIRST FLOOR IS RELIGIOUS EDUCATION ROOMS WITH OCCUPANT LOADS OF LESS THAN 100 THEREFORE ARE NOT CONSIDERED SEPARATE OCCUPANCIES AS PER 302.2.1.”  However, section 302.2.1 of the building code of New York State actually says that “[a]ccessory assembly areas are not considered separate occupancies if the floor area is equal to or less than 750 square feet (69.7 m2)...Accessory religious educational rooms and religious auditoriums with occupant loads of less than 100 are not considered separate occupancies.”  As per the Mr. Dalfino’s own signed and sealed calcuations, the area of the classrooms is 2,280 square feet and hold 157 people; that does not include the 56 in the nursery or the kitchen for a total of 172.  Per section 302.2.1 and the Mr. Dalfino’s revised floor plan, he must include the 172 occupants with the 344 occupants on the first floor and provide parking for the total amount of occupants which, in this case, is 516(172+344); see section section 300-182 (Off-street parking requirements) of Yorktown zoning ordinances.  The issue of the true maximum occupant load of the building was brought up in writing to the respondent on September 23, 2011 and October 3, 2011.  Permitting the rear yard variance which allows for a larger building, and subsequently produces a larger occupant loads.  The respondent dismisses these facts and ignores pertinent details and the requirements of town zoning ordinances relative to off-street parking for the applicant.  The respondent does not fully consider and facts and circumstances in the record.
10. The petitioner, respondent and applicant all agree that a special use permit is required to build a new church structure in an R1-10 zoning district. The existing church structure that shares lot 54 with a single family home, is a existing non conforming and can be continued to be used as such, per article XVIII of Yorktown zoning ordinances.  Section 300-172 (a) states that “[a] building or structure, the use of which does not conform to the use regulations for the district in which it is situated, shall not be enlarged or extended unless the use therein is changed to a conforming use.”  Furthermore, 300-172(e) states that “[i]f any building in which any nonconforming use is conducted or maintained is hereafter removed, the subsequent use of the land on which such building was located and the subsequent use of any building thereon shall be in conformity with the standards specified by this chapter for the district in which such land or building is located.  The respondent has exceeded its jurisdiction by granting variances for a use requiring a special permit where none has been established, as Yorktown law requires in the applicants R1-10 zoning district.  Note section 300-35 of the Yorktown zoning ordinances: “[N]o permit shall be issued for a special use for a property where there is an existing violation of this chapter.” Also see Yorktown Building Code section 15-7 regarding certificates of occupancy.
11. The respondent relies on the planning board memorandum dated June 22, 2011 (exhibit 9) when addressing parking concerns raised during hearings and in writing during the public hearing and written comment period.  However, such reliance is misguided because that application has not been opened for public comment and the planning board may be unaware of the gross parking deficiencies current and proposed, as demonstrated by the applicant’s engineer’s parking and occupant load study submitted to the record(exhibit 10). The petitioner and members of the community repeatedly brought the parking issue to the respondent’s attention at the public hearings and in writing, the letters of opposition attached (exhibit 11).  It is imperative that the respondent fully consider the facts and circumstances of the application; the record demonstrates that parking loads required to support the special use proposed by the applicant (see paragraph #10 of this petition) cannot support the proposed occupant load.  The high capacity (344 people) of the proposed church is a direct result of the elimination of nearly 50% of the rear yard requirement.  The respondent did not consider this fact in their determination.
12. Lots 9 and 10 are located across Sagamore Avenue from the two homes and small religious structure and are currently used as parking for approximately 40-60 cars (exhibit 12: wetland panorama, submitted to the respondent’s file September 23, 2011); Yorktown records indicate 6 cars were permitted to park on these parcels as a part of the temple’s development in 1962.  The deed (exhibit 13) for these two lots were conveyed to Lakeland Jewish Center and its successors (e.g. Faith Bible Church) from Shrub Oak Lake Estates Association, Inc.(SOLE)--a domestic not for profit corporation incorporated October 23, 1943 active in the state of New York.  The parcels were conveyed with a total of 6 terms and conditions.  See term and condition 4: “The Grantor [SOLE] hereby reserves a permanent easement on behalf of its membership to use the subject parcel at all times for parking purposes at no cost to the Grantor or any of its individual members.”   The respondent was made aware during public hearings and in writing that lots 9 and 10 were not exclusively owned by Faith Bible Church and therefore the proposed parking lot cannot be used to satisfy zoning ordinance required parking spaces.  Members of SOLE credibly testified at the public hearings on June 23rd and wrote in opposition to granting the zoning variances (exhibit 11, specifically refer to SOLE member Jack Kahn’s letter of September 30, 2011).  The rear yard variance only compounds the parking deficiencies under the applicant’s proposal.  The ZBA’s failure to consider all ownership interests contributes to their arbitrary and capricious approval of the 3 (of 4) zoning variances.
13.  Lots 50, 53 and 54 are mapped within the Mohegan Highlands Property Owners Association(MHPOA), an active New York State domestic not for profit corporation, incoroporated JANUARY 24, 1930.  The board of trustees of MHPOA must first give written, acknowledged consent before any application can  be made to Yorktown for the proposed new development.  Refer to video tape of the public hearing held JUNE 23, 2011.
14.The by laws of MHPOA charge the board of directors and trustees to maintain the high character of the neighborhood and request that all homeowners within the development adhere to Yorktown zoning laws.  See MHPOA by laws (exhibit 14) submitted to the respondent and recorded in the ZBA file.  It should be noted that the petitioner is the sitting vice president of the MHPOA board of directors and identified himself as such in writing to the respondent on October 3, 2011.
15. The building department (exhibit 2) notes that the homes are used as accessory occupancy to the church; they are occupied as such contrary to town law requiring that all conversions of occupancy and use be filed for and a new certificate of occupancy.  The single family homes existing on lots 53 and 54 do not have certificates of occupancy, but are classified as single family homes per Yorktown records (exhibit 2).  Yorktown zoning ordinances define an “accessory building” as “...customarily incidental to that of a main building on the same lot.”  The home on lot 53 is on a separate lot.  It is understood that under the proposal, the lots would be combined, but the ZBA fails to fully consider all of the circumstances in their decision.  The ZBA considers the single family homes to already be legal accessory church buildings which, as the record shows, is not the case. Again failing to fully consider the circumstances of the application.  Additionally, no special permit for the church use, as is required per sections 300-54, 300-30 and 300-201(c) of the Yorktown zoning ordinances has been issued for the new church, has been issued for any of the five zoning lots included in the applicant’s proposed new development.  Section 300-30 of Yorktown zoning ordinances expressly states that the respondent is the body charged with hearing such applications “in the same manner as is required by law for zoning appeals.”  It should be noted that the meeting minutes available to the public shows that the respondent approved special use permits at every single public hearing held by the ZBA in the calendar year 2011.
16. The respondent fails to consider, where the town code expressly charges them to make their determinations,  “[w]here the strict application of any of the requirements of this chapter in the case of an exceptionally irregular, narrow, shallow or steep lot, or other exceptional physical conditions, would result in practical difficulty or unnecessary hardship that would deprive the owner of the reasonable use of the land or building involved, but in no other case, the Board of Appeals shall have the power, upon appeal, to vary or adjust the strict application of the regulations or provisions of this chapter (zoning ordinance 200-201).”  3 of the 4 variances are not the minimum adjustment required for the applicant to reasonably develop the land.  Providing a 2 foot side yard where 12 is required and building a 12 foot retaining wall where 4.5 feet to create a slightly larger parking lot on lots 50 and 53 is not in keeping with the character of the surrounding neighborhood; in fact, the retaining wall height and side yard encroachment combine to level, as both applicant, respondent and petition agree, a “very steep hill.”  The 14.5 foot rear yard where 30 is required an adjustment of over 50% of the zoning ordinance requirement; said adjustment runs parallel to 150’-9” axis of the new building which will be two stories/35 feet high; this is a major adjustment of the law which will be all new, non-conforming construction.
17. Having 1.22 acres located on five separate lots at the “bottom of a very steep hill” (exhibit 15) provides the applicant with a significant advantage over the neighboring owners in terms of physically having the area to provide the required 30 foot front and rear yards; applicant has acquired more land than any other homeowner in the area and has flatter lots at the bottom of the hill.  Note: the petitioner does not object to the adjustment of zoning ordinances approved for the front yard encroachment or the withdrawn height variance (1 and 2 feet adjustments, respectively).  Those variances were insubstantial and obviously met the minimum adjustment standard and many of the surrounding single family homes have similar, small adjustments of the law.  
18. According to respondent’s determination, under the section titled “SITE/PARKING PLAN REVIEW AND SPECIAL PERMIT, the applicant must obtain a special permit from the Planning Board (see paragraph #9 of this petition).  The respondent “notes that previously houses of worship were an as-of-right use in the R1-10 zoning district.”  That is not true today, nor was it true when the applicant filed the application for a variance with the respondent.  The fact that the area was rezoned and at one time the zoning laws allowed the church use as of right has absolutely no relevance to the application before the respondent. Under current  Yorktown zoning laws, a church established by new development requires a special use permit.  
19. The facts presented to the respondent, such as the requirement that the proposed church use--being established anew and extended to additional zoning lots where single family homes and unimproved woodland/wetland exist today--existing legally today on only 1 of the five zoning lots; the fact that building a new church and extending it requires the respondent (per section 300-30 of town zoning law) to hear application for, and issue or deny a special use permit  Or that the current occupant levels the church and two adjacent homes are occupied at today (see exhibit 10, parking study by applicant’s engineer), would not be supported by the proposed new church for 344 people.  
20. The applicant illegally converted the homes, without approval or permits, (exhibit 6) to suit their needs resulting in the  current, gross over use of parking and septic systems which have already had a detrimental impact on the character and environment of the neighborhood.
Without the 3 major zoning variances the project can still move forward resulting in a building more proportionally appropriate to the surrounding neighborhood.  The applicant can still reasonably develop the land without these variances.  The record demonstrates that the ZBA not once asked the applicant if any of the variances could be reduced.  Perhaps the 2 foot side yard where 12 feet are required could have been enlarged to 4 or 6 feet; could the rear yard encroachment been revised to 15 feet instead of 14.5 feet?  The ZBA failed to ask these questions and thus never determined if the proposal was--in fact--the minimum adjustment.
21. The record indicates on page 4 of the ZBA final determination that the two single family residences and  one religious structure “on Lots 53 and 54 will be demolished.”  The house on the northeasterly portion of the site becomes a parking lot and the other home is absorbed into an large, new two story church structure.  When the existing structures are demolished, all existing non conformity will be eliminated.  The new church structure will be a new non conforming condition.  Approximately half of the existing non conformity in the rear yard is for a legal single family residences; as if the homes were already granted special use permits.  It is unclear why the board writes in their determination that “[a]ccording to Zoning Code 300-54, special permits for religious institutions are granted by the Planning Board.  See also Zoning Code 300-30; 300-201(c).”  Zoning Code section 300-30 states that “[t]he Zoning Board of Appeals, after public notice and a hearing in the same manner as is required by law for zoning appeals, and after receipt of a report from the Planning Board, as provided below, if requested, may authorize the issuance of a permit, provided that it shall find that all of the appropriate conditions and standards in §§ 300-36 through 300-75 have been met.”  That clearly states the ZBA will hear the special use permit application; additionally the ZBA voted and approved numerous special use  permits in the last calendar and, in fact, approved special use permits the same night they approved the applicant’s final determination, December 8, 2011.  Knowingly granting variances for special use not yet established is a waste of the ZBA’s time as there is no guarantee that such permit will be granted.  It’s a theoretical excercise until the special use permit and 5 lots are properly combined.
22.The petitioner concurs with the applicant’s affidavit from Pastor Zottoli (exhibit 16) submitted to the record on June 23rd, 2011 stating that “[a]ll of the buildings are at least fifty years old, are dated, energy deficient and difficult to manage into a cohesive house of worship facility.”  However, the ZBA fails to consider the fact that of the 3 buildings he is referring to, 2 of them are legally single family homes--per Yorktown records and as affirmed by the building department and the ZBA meeting minutes (see exhibit 3). All three structures are contained on a certain parcel of land within the Mohegan Highland Property Owners Association (MHPOA) as shown on the map that was filed with the Registers Office Of Westchester County on May 8, 1929.
23.The respondent’s determination cites a memorandum from the planning board (exhibit 9) when addressing the parking concerns that were was credibly brought to the their attention, both in the public hearings and in writing as evidenced by the 10 letters of opposition submitted to the respondent(exhibit 11). The letters--all from homeowners in the immediate area--highlighted the applicant’s deficiency in the number parking spaces to needed to support the current occupant load and their inability--through physical limitations of the site, to provide(even with all of the variances) enough parking for the proposed occupant load.  Additionally, the petitioner presented the respondent with photographic evidence and credible testimony that the existing parking loads approach and often exceed the proposed number of parking spaces for the new church.  The new church will have a substantially larger maximum occupant load: 344 people, whereas the existing church only permits a maximum occupant load of 80 to 100 people 3 days a year, for 3 hours a day.  Refer to paragraph #25, below, for a detailed analysis of the parking study performed by the applicant’s engineer  .  Not considering these facts in their determination, the ZBA is overlooking a devastating impact on the character of the neighborhood that the rear yard variance will have by allowing a larger building (eliminating over 50% of the required rear yard) which can hold more occupants. The parking capacity--under the applicant’s proposal--would be 4 spaces less than the highest number of cars parked on the applicants five lots
24. The record demonstrates that Faith Bible Church’s current maximum parking loads exceed the increased number of parking spaces.  Exhibit 5 is the “Parishoner/Parking Summary Table” for Faith Bible Church prepared by FBC’s engineer for the project, Site Design Consultants.  The study was conducted over 6 weeks from April 17, 2011 through May 22nd.  The study was attached as an exhibit to Pastor Zotolli’s affidavit submitted to the ZBA on June 23rd, 2011.  The highest occupant load was 242 people with 90 cars parked on site resulting in a “Parishoner/Vehicle Ratio” of 2.7 parishoners per car.  2.7 is the best ratio of people to parking spaces the applicant is able to provide on the site (note: the higher the ratio, the more people would be travelling to together resulting in a lower number of parking spaces required).The “Parishoner/Vehicle” ratio over the six week study ranged from 2.3 to 2.7 people per parking space provided.  Town law only requires a ratio of 4 people per parking space to be provided.  Because the record demonstrates that new church requires a special use permit, such special parking circumstances and and the permit must be considered to fully understand the application for zoning variances.
25. The applicant’s engineer, Site Design Consultants, parking study credibly demonstrates on record (exhibit 10) that Faith Bible Church’s specific occupancy and use of the site requires 90 cars to support an occupant load of 242 people.  The rear yard variance providing a 14.5 foot rear yard where 30 is required permits a substantially larger building which directly results in more people.  The proposed new church has an occupant load of 344. Per the applicant’s own engineer’s parking study (exhibit 10), an occupant load of 344 people would require 128 parking spaces [344 divided by 2.7] based on a ratio of 2.7 (the best ration achieved during the study period); calculated at the worst ratio, 2.3 parishoners per vehicle, they would require 150 parking spaces [344 divided by 2.3].  It is understood that the zoning ordinances only require a ratio of 4, but that assumes the use is permitted as of right. The fact that the church use requires a special use permit would require the board to consider special circumstances such as a parking study showing that the applicant’s special use of the site requires more parking than the minimum zoning standards.  This is exactly why special use permits are not as of right uses in the district: so that all circumstances of the proposed special use are fully vetted prior to allowing such use in certain zoning district; the proposed development is in an R1-10 zoning district that requires special use permits for churches. The applicant proposes providing parking for the zoning minimum standard which, per the applicant’s engineer, would never be sufficient to accommodate the growing congregation.
26. Yorktown zoning ordinances require applicants for new religious institutions to provide 4 cars per pew seat.  The applicant has demonstrated that to support their occupant load, they require between 2.3 to 2.7 cars per pew seat, a subtstantial difference from the code requireement.  Yorktown zoning ordinances require a special use permit for a church use, as proposed by the applicant.  Per section 300-30 of the town zoning ordinances, the respondent must, after public notice, hear the application for the special use in a manner similar to that of the zoning board of appeals applications.  No such determination has been made.  Of the five lots the applicant proposes to combine, the existing non-conforming church structure that shares lot (54) with a single family home is the only religious structure.  The legal use and occupancy of the majority (2 of 3) of structures the applicant currently owns is single family home.  Low-density, single family homes typify the character of the neighborhood; it has been this way since the neighborhood was developed beginning the late 1920’s.  Please refer to letter of opposition in the respondent’s file from Jack Kahn of Shrub Oak Lake Estates (exhibit 11).
27. The Yorktown “Comprehensive Plan” (exhibit 17), adopted by Yorktown,  explicitly charges the town, along with its boards and agencies, with preserving--among other things--the “steep slopes” unique to the Yorktown community.  The petitioner made the board aware of this during a public hearing and in writing.  Westchester County classifies and maps “steep slopes.”  The petitioner’s wife, a Cooper Union trained chemical engineer practicing as an environmental engineer in the Hudson Valley for over ten years prepared GIS maps demonstrating that the variances occurred within “steep slopes” as classified by the County(exhibit 22).  This map was submitted to the record during a public hearing and in writing.The zoning variances for a side yard of 2 feet where 12 are required and the 12 foot retaining wall where 4.5 are allowed significantly contribute to the leveling of a “steep slope” well beyond what the zoning ordinances of Yorktown afford the applicant as of right.  The applicant achieves little benefit in the form of a  couple of extra parking spaces at the expense of unique and defining characteristic of the neighborhood: steep slopes.  
    28. The first sentence of the “Vision Statement” regarding “Land Use” in the Yorktown “Comprehensive Plan” (exhibit 17) reads: “Yorktown will continue to be primarily a low-density community of single-family homes, with strong neighborhoods that have a balance of developed areas and open space.”  Per town records, the five lots affected by the application today exist as follows: Lots 9 and 10 were approved for 6 parking spaces.  Lot 50 is unimproved woodland.  Lot 53 is a single family home.  Lot 54 has a single family home and a small church with a legal maximum occupant load of  “80-100” persons, 3 days a year for 3 hours at at time.   The applicant requires no variances under the current Yorktown zoning ordinances to develop the parcels in a reasonable manner.  All five lots can be combined and, if a special use permit is granted, a new structure can be built to substantially increase the legal occupant load of the as-of right. Having 1.22 acres to build upon, allows the applicant to both substantially conform with zoning laws while achieving a maximum capacity much larger than exists today.  Using the best ration of people to parking spaces the applicant can provide, the 86 parking spaces proposed for the new development would permit 232 people (2.7 people per parking space multiplied by the 86 parking spaces to be provided = 232 people).  Not a single variance would be required to achieve this. The respondent failed to consider the existing legal occupancy and historical character of the neighbor in balancing the need for new development against the existing “low density community of single-family homes” (exhibit 17, comp plan) that surrounds the existing church.
29. In making their determination as to “whether an undesirable change will be produced in the character of the neighborhood or a detriment to nearby properties will be created by granting of the area variances” the ZBA cites Pastor Zottoli’s affidavit, specifically exhibit A attached thereto (exhibit 18). Exhibit 18 is a tax map showing the area around the site.  Note: exhibit 18 does not identify the entire project site, omitting lots 10, 50 or 53.  Pastor Zottoli’s statements such as “[e]xhibit A reveals that approximately 92% of the improved lots lack conformity to the yard requirements of the Zoning Code” does not mention four salient facts: 1) the entire study area is single-family homes, less the small religious structure that shares lot 54 with a single-family home, 2) all of those lots are substantially smaller, some as small as a tenth of an acre, whereas the applicant has 1.22 acres. 3) many of the existing legal non conforming house yards were present prior to enactment of the town zoning ordinances in 1932, 4) the degree of non-conformity is very slight relative to the 3 major zoning variances (see paragraph #3 of this petition) the applicant proposes .   It should be noted that petitioner supported 2 of the original zoning variances for height and front yard encroachment as they were only slight adjustments of the law and allowed for reasonable development of the land
30. There is no precedent in the surrounding area for the near elimination of a side yard  such as the 2 feet where 12 feet is required; no precedent for retaining walls of 12 feet where 4.5 feet are allowed; and there is no precedent for eliminating more than 50% of the required rear yard for a building to house of worship for 344 people.  Considering that the character of the neighborhood is small homes on small, irregular lots and considering that the record demonstrates (see exhibit 18) the number of parking spaces proposed (86) is less than the number of parking spaces (90) Faith Bible Church requires to accommodate the current maximum occupant load of 292 people (note: the legal maximum occupancy is “80-100” people 3 days a year for 3 hours (exhibit 4).  It is arbitrary and capricious for the respondents not to fully consider the facts and circumstances of the application before them.  
31. The existing legal occupancies and uses of the existing 3 structures (2 single family homes an old temple/church) are a part of the ZBA record and have defined the character of this specific part of the neighborhood since the temple was built in 1962.  Before 1962, there the character of the neighborhood was solely small, single family vacation cottages tucked on the hillside overlooking Mohegan lake. The petitioner and community repeatedly brought to the attention of the ZBA the current problems with parking at the site (see ZBA meeting video of 6/23/2011 and letters to the respondent opposing the zoning variances, exhibit 11).
32. The existing church is immediately adjacent to a single family home on lot 54, see the site plan (exhibit 5). The existing non conformity of a 14.5 foot rear yard where 30 feet on lot 54 is for two separate structures: the church and a single family home.  About 50% of the non conformity is the church, and the other half applies to the single-family home; both structures are single story (appoximately 10 feet high) where the rear yard encroachments are greatest.  The respondent’s determination (exhibit 15)“finds permitting the New Church to be one foot closer to its rear yard than the present church sanctuary which has existed for over 50 years will not alter the character of the neighborhood.”  The respondent overlooks that the church would then be enlarged to take over the area currently occupied by the home and beyond.  Not only that, but the new church would be substantially higher in the rear yard than the structures that exist on the site today, achieving a height of 35 feet in the rear yard encroachment of 15.5 feet where 30 are required.  The existing non conformity for the church--if it were to remain--would be increased in three dimensions.  On the x axis in plan toward the rear lot line, on the y axis in plan beyond the non-conformity of the single family home, and in the z axis in section where both of the current structures are only about 10 feet high and the new church would be 35 feet high. There is no explanation in the record as to why enlarging the existing rear yard non conformity by one foot was the minimum adjustment of the law that would permit the applicant to reasonably develop the land.
33. The respondent specifically cites the “differences between the parking area grade and the residences” as one of the factors supporting their determination will not produce an undesirable change.  Whereas the adjoining single-family homeowner immediately adjacent to the single family home on lot 53, who went on record opposing the zoning variances specifically because of her proximity to that home which is slated to become a parking lot submitted a notarized letter to the contrary (exhibit 11, Hermalinda Maidana’s letter to the respondent).  The households on Sagamore Avenue are not convinced the change the variances bring about will not produce an undesirable change to the character of the neighborhood (see exhibit 11, specifically David Abrams and Hermalinda Maidana letters who live immediately adjacent to the applicant’s site). Whereas the zoning ordinances afford the applicant ample area to enlarge the legal occupant load of the current facility as-of-right.  No variance from established town zoning law is required for the applicant to reasonably develop the parcel and substantially increase the legal occupant load of the existing facility.  Minimum adjustments of zoning law (or as in most cases, conditions that existed prior to the enactment of town zoning in 1932) are common for the single family homes that surround the small sanctuary, and the applicant is certainly entitled to minimal adjustment because of the unique geography at the site; the minimum adjustments of law, though, are for very small parcels exclusively occupied and used as single-family homes. Eliminating--as is proposed by the applicant--over 50% of the required rear yard for a two story structure with a 150’-9” long main axis is a substantial detriment to the character of the low density single-family homes directly affected by the respondents arbitrary and capricious approval of 3 of the 4 variances.
    34. The petitioner agrees with the respondent’s final determination when they write that the “front yard variance allowing the yard to be 29 feet from the property line rather than 30 feet is not substantial and will not alter the character of the neighborhood which is typified by nonconforming yards.”  Though the petitioner does feel the respondent could have used more punctuation in that sentence.
    35. The notarized letters submitted to the respondent from the other neighbors sharing lot lines with the applicant (exhibit 11) confirm that the illegal conversion of the single family home on lot 53 has already detrimentally impacted the character of the neighbor and that the parking load of the current church is already a quality of life issue impacting homeowners within the vicinity of the proposed new development.
    36. The petitioner’s wife (see paragraphs #1 and #27 of this petition), prepared a case study of nearby churches in Yorktown(exhibit 19).  Specifically she compared the lot areas, building areas.  In a written letter hand delivered to the respondent by the petitioner on October 3, 2011, it was noted that St. Mary’s church, about 100 yards away is in a commercial zoning district, on a Route 6, a large thoroughfare, and which has a smaller maximum occupancy, 250 people, per exhibit 20.  They provide much more parking relative to the building area and not within “class 1” NYS Dept. of Environmental Conservation wetland buffer zones.  The applicant is proposing a maximum occupant load nearly 50 percent more than St. Mary’s, while providing much less parking area, on smaller less trafficked, residntial roads  under the new proposal.  
    37. The respondent, again, cites pastor Zottoli’s affidavit (exhibit 16) which states that “none of the retaining walls will be higher than the existing terrain in the vicinity which will not be disturbed.”  The petitioner does not dispute that the terrain at a higher elevation than the proposed 12 foot retaining wall will not be disturbed.  But the 12 foot retaining wall (where 4.5 feet is allowed), by definition, will have allowed he applicant to flatten a “steep slope” that defines the unique, single-family residential neighborhood.  This variance will obviously have an adverse effect on physical and environmental conditions in the neighborhood, assuming the steep slopes and low-density, single-family residential area is worth preserving.  The respondent argues the town, by way of adopting the “Comprehensive Plan”, is charged with preserving such.
38. The respondent’s determination states that “[the Applicant cannot achieve similar benefit elsewhere because it owns all five lots and has an established congregation at the location.”  The respondent neglects to mention that the applicant converted two single family homes without town approval or permit (see exhibit 2, building department memo) in order to grow the congregation beyond the legally approved occupancy, parking and septic loads approved for the existing structures.
    39. Considering whether the area variances are substantial, the respondent determination notes that “some of the area variances could be deemed substantial, however the Board gives less weight to this factor.”  Respondent continues to outline “environmental benefits” of the application.  It is an arbitrary action to assign this requirement less weight than the other 4 criteria outlined in NYS Town Law section 267b(3)(b).  It is capricious for the respondent to give special weight to perceived environmental benefits while ignoring/deferring the questions surrounding the required special use permit and parking issues; both the special use permit and parking are outlined in the zoning ordinances which are under the jurisdiction of the respondent.  So for the respondent to overlook questions within their jurisdiction and to assign special weight to “environmental benefits” which are outside their jurisdiction runs contrary to the powers and duties of the respondent defined in section 300-201.
    40. The respondent’s failure to consider the special use permit requirement and the applicant’s lack of said permit are pertinent to the determination.  Yet the respondent defers consideration of such to the planning board.  Zoning ordinance section 300-30 definitively ascribes this power and duty to the zoning board of appeals.  To not consider such in the final determination is to not fully consider all of the circumstances of the application for zoning variances.
41. The respondent “considers the overall benefit to be derived from the proposed development and other environmental benefits.”  However, the respondent neglects to note that a similar environmental benefit could be achieved by the applicant occupying and using the existing three structures as per Yorktown records identify such: 2 single family homes and a small house of worship to be occupied by a maximum of 80-100 people, 3 hours a day 3 days a year.
42. Respondent’s determination was arbitrary and capricious, and an abuse of discretion because of a combination of factors: a) the respondent failed to perform its duty to fully consider the facts and circumstances of the case before them.  b) the respondent went beyond its jurisdiction by granting a variance for a proposed use that requires a special use permit. c) the determination of the respondent was based on incomplete evidence and over-looked evidence.
43.  No previous application has been made for the requested relief.
    WHEREFORE, petitioner respectfully requests that judgment be entered pursuant to Article 78 of the Civil Practice Law and Rules:
    1. VACATING and setting aside 3 of the 4 zoning variance approvals in Respondent’s determination of December 8, 2011, as follows: 14.5 foot rear yard where 30 are required(#1), a 12 foot retaining wall where 4.5 are permitted(#2), and a 2 foot side yard where 12 feet are required(#3); the 4th variance is a reasonable adjustment of the law and remains uncontested by the petitioner. The 5th variance, a height variance of 2 feet, was also uncontested by the petitioner.
    2. DIRECTING Respondent to expunge all entries of said zoning variance approvals for zoning board of appeals application #32/11 from Yorktown Town records of said Zoning Board of Appeals hearing of December 8, 2011.
    3. GRANTING such other and further relief as the Court may deem just and proper.
Evan Daniel Bray
Petitioner, pro se.

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