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 23, 2013

Update on the Faith Bible Church Zoning Variance Application

It would be highly peculiar if the Zoning Board doesn't approve all of the requested variances tomorrow night, 10/24/13.  I was shocked they didn't last time. 

To bring you up to speed on the latest, I present my written comments to the Zoning Board from August.  I like to think it had something to do with their thoughtful deliberation of the application and their surprising postponement of their decision.

Dear Zoning Board Members,

Thank you for your continued diligence reviewing the instant variance applications.  I will continue to thoroughly examine, in my professional capacity, the instant application in attempt to vet it for full compliance and conformance with all applicable laws.  It is my hope that I can save the applicant, town, and myself additional time that will be required if all the “I”s are not dotted and “T”s crossed.  Faith Bible Church (FBC)  is on their 4th ZBA application in 3 years; I think all parties agree that we don’t want to be before the board on this matter, ever again.  

Regarding Mr. Capellini’s memo of 8/8/13 to the ZBA, I counter that it is he bamboozling the town boards and betraying the residential neighborhoods surrounding the FBC site.

Interested Parties:

As per the correspondence from Mohegan Highlands Property Owners Association (MHPOA) to the board, they reserve the right to fully exercise their legal rights, as interested party to the applications before the planning and zoning boards, to challenge any planning approval that uses zoning variance application approvals required that MHPOA was not made interested party to.  

Illegal Conversion:

Neither Lakeland Jewish Center, nor Chabad Lubavitch  (tenant prior to Faith Bible’s tenancy in 1994) occupied or parked as many, nor as often, as Faith Bible Church.  Based on written and oral testimony from the applicant’s team, the public and Yorktown records, the current occupant load varies from 170 to 252 people, requiring up to 92 cars on site to accommodate such; see Site Design Parking study in the file.  This was done through an illegal conversion; no application, no approval, no permit, no certificate of occupancy.

Messrs. Capellini and Zotolli are inventing a history of the site to prop up the fictionalized, historical narrative they are trying to sell.  I am attaching a memo of 9/27/1984 from Yorktown building inspector William D. Gregory contained in the planning file of the FBC application.  It is clear that 3448 Sagamore Avenue (AKA, the red house) is a single family home, and can be sold as such without obtaining a certificate of occupancy--which would have been required under the current code when the memo was written--which the building did not, and does not currently have. Of note in Mr. Gregory’s property study is that the former owner’s listed; this list is congruent with the tax assessor records I have provided to the file:

  1. Mohegan Lakeside (now Mohegan Highlands Property Owners association) circa 1929.
  2. Joseph Miller 4/5/44
  3. Sally Sidelle 6/66
  4. Chester Maxine 9/72
  5. Sam Piniles 12/72
  6. Giovanni De Pasquale 6/78

Lakeland Jewish Center took title of the red house on Sagamore Ave only in 1979, and was continually used solely as a house until FBC took title in 2005.  The record is indisputable. Mr. Capellini’s assertion that “these uses commenced as early as November 1958, if not earlier” is purely a product of his imagination.

I am also attaching a New York Times article from 1990 showing that Chabad Lubavitch used the red house solely for the rabbi’s residence and that attendance of the temple was around 10-15 men, plus wives and children.  This occupancy level, and using the house as a home, is in keeping with the historic character of the site.  

In regards to Mr. Capellini’s assertion that “Bray’s incessant and unwarranted reliance on assistant building inspector Sneyd’s memorandum of March 16, 2011 is pointless,” I ask building inspector Winter:

Is Mr. Sneyd incompetent?  Is the Sneyd memorandum inaccurate or pointless?

If either answer is yes, then I ask why Mr. Sneyd is being employed at the expense of the taxpayers of Yorktown.  Doing property research in town records and being able to accurately assess the legal occupancy and use of a structure is one of the fundamental duties of the building inspector, assistant or otherwise.   If he is so far off base as Mr. Capellini suggests that his memo is “pointless,” he is incompetent and should be fired.

I wonder what Mr. Capellini thinks of building inspector William Gregory’s memo from 1984 on the same house, arriving at the same conclusion as Mr. Sneyd; “pointless,” I’d guess.  It’s legally a single family house.  No mention of church occupancy or use at the red house at 3448 Sagamore Avenue, ever--anywhere, except the applicant’s own admissions that that’s how they use it currently.   

I ask that the building inspector review the parking study performed in 2011 in the ZBA file prepared by Site Design consulting.  Noting the occupant and parking loads outlined in that study, and in light of the last Yorktown Planning Board approval for the site--also in the ZBA records for this application-- I ask the building inspector to answer the following question:

Are the occupant and parking loads described in the Site Design Parking Study legal relative to the last Yorktown approval for the FBC site?

I remind inspector Winter that Section 15-7 of the Yorktown Code is explicit and was in full effect when FBC made application to both the planning and all of the zoning applications:

A. Certificates of occupancy required. 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. Permission to use or occupy a building or structure, or portion thereof, for which a building permit was previously issued shall be granted only by issuance of a certificate of occupancy.
B. Issuance of certificates of occupancy. The Building Inspector shall issue a certificate of occupancy if the work which was the subject of the building permit was completed in accordance with all applicable provisions of the Uniform Code and Energy Code and, if applicable, the structure, building or portion thereof that was converted from one use or occupancy classification or subclassification to another complies with all applicable provisions of the Uniform Code and Energy Code. The Building Inspector or an inspector authorized by the Building Inspector shall inspect the building, structure or work prior to the issuance of a certificate of occupancy. In addition, where applicable, the following documents, prepared in accordance with the provisions of the Uniform Code by such person or persons as may be designated by or otherwise acceptable to the Building Inspector, at the expense of the applicant for the certificate of occupancy, shall be provided to the Building Inspector prior to the issuance of the certificate of occupancy:

As noted in building inspector Sneyd’s memorandum in the ZBA file, neither approval, permit nor a certificate of occupancy was issued to occupy the FBC site and structure at the levels described in the Site Design Parking Study; there is no legal approval to use the land to park as many cars as described in the study.  No application was made, approval granted, or a certificate of occupancy issued for the occupancy, as described in the Site Design Parking Study.

Parking Concerns:

1)  Variance requested to park within 2 feet of a side and rear “lot line” where 5 feet is required.

Mr. Capellini states that “[t]here are no front yards or any other yard, for that matter, in the parking lot across the street because the definition of front, rear and side yards  in the code requires the yard to be measured from a building and as we know no building exists on the parking lot nor is one proposed.  

To illustrate how stupid that argument is, I am supplying photographs from the last two Sunday’s both taken around 1130.  Aside from noting that FBC is already using these off site parking spaces, I draw your attention to the gracious front yard setback provided on the HVTFCU parking lot.  Mr. Capellini would have you believe that this required setback without parking is not required in residential zones.

The last planning board approved site plan of 1963 shows a required 30 foot front on the wetland parking across the street.  In fact, the photographs provided show a substantial setback of parking from Mohegan Avenue for the HVTFCU parking lot located in a C-1 zone.  Is the same decorum not allotted in the residential (R1-10) zone where the FBC parking occurs, across the street on the wetland parking lot?

First, the lot in question is subject to the schedule of regulations that govern yard and setbacks.  Regardless whether or not a building exists on the lot, it has a use (parking lot) and must conform to required building setback lines which delineate required yards.  Please refer to my architect’s signed and sealed letter addressing such in the ZBA file.  Please remember that the only reason I was able to get the application sent back to the ZBA is because the applicant overlooked footnote 1 of 300a outlining yard setback requirements.  Footnote 1:

On streets with less than a 50-foot right-of-way, the front yard setback shall be measured from the centerline of the existing roadway and 25 feet shall be added to the required front yard setback

There is no mention of a building in this front yard setback requirement applicable to all buildings and “land uses.”  Setback is not a defined term in our zoning code, but I think you are smart enough to understand what it means as it is mentioned dozens of time throughout the code.  

Since a parking lot is a “land use” subject to the schedule of regulations governing “buildings and land uses” cited in 300-121 and table 300a, the front yard setback requirement and subsequent prohibition on parking stands.  Until I pointed out this major oversight, the Site Design Plans (even after being revised the spring of 2013 to show the true required front yard setback) always showed the required front yard setback on the wetland parking lot.  But at the last meeting on 8/8/13, presto-chango, it magically disappeared--after 5 years.  

Second,  Mr. Capellini is confusing the issue.  The variance requested by the applicant is for relief from 300-183(b) which states, in part: “nor shall [parking] be developed within five feet of a side or rear lot line.”  The applicant is proposing parking with no buffer, zero feet, at the side and rear lot lines of the wetland parking lot. The current variance is deficient.

We’ll get to address the deficiencies of the front yard setback requirements of the wetland parking after the planning board and building inspector kick the planning application back to the ZBA this fall.  I was only addressing it now to try and save us all time.  

Third, the “typ. 2 foot overhang”, until recently shown on the site plan, provides zero (0’) feet where 5’ is required on the wetland parking lot across the street.  I imagine Mr. Capellini will argue that the wetland parking lot has no lot lines, but we all know he can be a joker, at times.  The variance request, even with the revised site plan that magically removed the 2 foot overhang and front yard on the wetland parking lot, remains deficient.  The variance request should be revised to read 0’ provided where 5 is required from side and rear “lot lines.”   Regardless, there are parking spaces within two feet of side and rear lot lines of the wetland parking lot that should be included as a part of the applicant’s ask. I ask building inspector Winter:

What are the total number of parking spaces requiring relief from the 5 foot side and rear yard lot line parking prohibitions? Are there side and rear lot lines on the wetland parking lot across the street?  Is the typical 2 foot  parking overhang that has appeared on the site plans for 5 year allowed per code?  Since the parking overhangs recently disappeared from the plan, what impact does this have on the parking stall dimensional requirements?  Is an additional variance required?  Have you seen a dimensioned parking plan for the HVTFCU lot?  Were you aware that they already starting using the HVTFCU without approval or permit?

The applicant might as well add the variance required for parking stalls that do not meet the minimum required dimensions.  Again, I’m just trying to save us all time; I understand this is not before you, but I do consider you all smart enough to identify the glaring deficiencies of the planning application as a whole.  

Revelations or Persecution:

Persecution? Seriously?  Is Mr. Capellini suggesting that the legitimate objections-- based purely in code, zoning and planning concerns--are equivalent to the Chinese Communist Party’s religious persecution of Christians, Buddhists and Falun Gong?  I’m deeply offended by his incendiary language.  

Let me summarily refute the lettered points in Mr. Capellini’s misguided, misinformed and misleading summary contained in his memo of 8/8/13 to the ZBA:

a) No comment.

b)  Lot 10 was never approved for parking.  According to town records the lot should be undeveloped.  Refer to the map I have provided using GIS maps and the last PB approval for the Lakeland Jewish Center.

c)  The proposal contained in the application before the boards is, by definition, “development” of a new, enlarged, curbed, striped, permeable paver parking lot where a gravel one should exist.  It should be noted that the subject parking lot was paved post 2000 based on the county aerial photos provided by both the applicant and myself.  In 2004 the aerial shows a black top where brown existed back to 1957.

d) The proposed spaces at the Hudson Valley Teachers Federal Credit Union (HVTFCU) will not run with the land and will therefore not count towards the zoning minimum required parking spaces to satisfy the proposed occupant load.  
Please note that section 300-185 of the zoning code states:

Required parking areas developed for specific structures and uses shall be reserved, at all times, to those persons who are employed at or make use of such structures and land uses, except when dedicated to and accepted by the Town as public parking areas.

FBC is not developing the parking spaces, nor are the HVTFCU parking spaces reserved at all times for FBC.  An additional variance is required for both FBC and HVTCU for relief from 300-185.  

I ask building inspector Winter to answer this question and also to review the parking plan for compliance with minimum stall areas.  

As noted previously, the Maser Traffic study, the current plan does not fully conform to the zoning minimum areas.

e) I thank Mr. Capellini for making my point for me.  The zoning variance you are considering allowing remote parking on the HVTFCU parking lot must run with the land.  Expressly noting it as one of the conditions of a license agreement does not make it an appropriate covenant for grant of a zoning variance. Your approval will not condition the times of occupancy or use of the structure and such an arrangement has never been discussed.  The remote parking must remain their in perpetuity (run with the land) so that any future owner or tenant of the HVTFCU site knows that they can’t open an IHOP (or any other use open on Sundays), because FBC has the legal right to park there.  

Furthermore, I ask the board how they will guarantee that the occupant load does not exceed the proposed maximum occupancy Monday-Saturday.  Are we really expected to believe that no special event requiring parking for the maximum occupancy will occur outside of 9am-1pm on Sundays?  The applicant won’t deny the need for maximum parking outside the required times.  It’s not as if there’s never a funeral or wedding on Saturdays.    Meaning how can we be assured that FBC won’t exceed the occupant load that can be supported by the on site parking available Monday through Saturday (when HVTFCU is using those spaces).  The grant of the variance must run with the HVTFCU too.  Mr. Capellini and I finally agree on something.  

To be more succinct: condition #6 of the license agreement between FBC and HVTFCU in the record states: “This License is revocable as noted above and shall not run with the land.”  This License is not the appropriate covenant for the grant of a zoning variance.  

f)  A church is not a residential use.  Yorktown Code is explicitly clear that a church is not an as of right use in a residential zoning district.  It requires a special use permit.  This was true at the time the applicant made application before both the Planning and Zoning Boards, was true at the time the original structure was approved, permitted and built by the Lakeland Jewish Center,  and  it remains so today.  

Memo from the Yorktown Planning Board of April 13, 1963--tiltled “Parking Plan Review for Lakeland Jewish Center” literally begins with: “As required by the Town Zoning Ordinance for any new non-residential building [!!!] or extension, a proposed parking plan has been submitted for approval for the above named property [Lakeland Jewish Center].  I don’t want to beat a dead horse so I’ll stop here.

g)  The code is black and white regarding the parking spaces that must be provided;  the parking requirements are based on the entire occupancy and use of any proposed structure.  Non-simultaneous occupancy is as pertinent to the application as the assertiona that all applicants whose last name begin with the letter “Z” are exempt from the parking requirements sum total of all occupancies and uses occurring on a lot.  

Whether the 1st floor classrooms, kitchen and nursery are “joint use” or not, they are an occupant load which zoning code requires parking be provided for.  There is no provisions, not a single mention in the code of “non-simultaneous occupancy.”  The sewer load, egress, fire protection, and accessibility standards were all designed for the total occupant load of the entire building which includes both the 1st and 2nd floors of the building.  The record on this is indisputable.  HOWEVER, they are invoking “non simultaneous occupancy” for the entire first floor, only because both floors require significantly more parking than the site (even with the remote lot) can provide or support.  Pastor Zotolli clearly stated between 9 and 9:05pm at ZBA meeting of 6/27/13 that while the adults occupied the sanctuary, the 1st floor would have a simultaneously occupied “childrens church.”  His description is congruent with how they use the current sanctuary and 2 houses: simultaneously.  They have children’s church simultaneously with the adult church.    

If there were any precedent in Yorktown for any “non simultaneous occupancy,” the applicant could have easily shut me up 3 years ago by citing code, a building inspector determination, a precedent or any documentation on “non simultaneous occupancy.”  Instead the applicant just keeps trying to redirect your attention elsewhere.  I ask for building inspector Winter’s opinion on the following.  Apparently the “assistant” building inspector Mr. Sneyd’s should keep his “pointless” opinion to himself.

What is non simultaneous occupancy?  What code section, memorandum, local law or other such document is non simultaneous occupancy described in?  How is it applied?  What other church (or any other building for any other use) has approved drawings, or other documents in the Yorktown planning, building or zoning department records that cite “non simultaneous occupancy?”  Surely the words “non simultaneous occupancy” must appear somewhere on some document?  Or is this the first case of such undefined concept being applied?  Non Simultaneous Occupancy literally appears nowhere in Yorktown or New York State or the IBC or the ICC building and zoning laws.  Please correct me if my research is incomplete.  Note I did bring the single mention  “non simultaneous occupancy” in the outdated 1968 NYC building code to Yorktown’s attention.  I won’t cite it chapter and verse as it’s well documented in the record; this provision allowed for “rooms or spaces” to be omitted from occuapnt loads for rooms such as locker rooms for employees, bathrooms, etc...NYC would never, even under the ‘68 code, allow for “non simultaneous occupancy” solely to minimize the parking loads of an entire floor in a building capable of holding over 750 people, as FBC is proposing.  Why else is FBC using this made up concept, Mr. Winter?  Can you name a single other benefit to the applicant for falsely claiming “non simultaneous occupancy?”   Let’s pretend “non simluteanousl occupancy is a real thing.  Why isn’t the parking being designed for the 1st floor which has a higher occupant load, per Larry Dalfino’s calculations on his signed and sealed plans?  

Environmental Issues/The Environmental Assessment Form (EAF):

What is painfully obvious is that the ZBA did not thoroughly review the original EAF, prepared in 2009. The EAF was never accurate or complete and remains so in the instant application before the board today.  My objections to the EAF are as follows:

Part 1 (A) Site Description:

    Description of Action: the applicant incorrectly fills out this section describing the action     as:
“Reconstruction and additions to existing building including associated improvements to the parking facilities, utilities (sewer, water, electric), landscaping and stormwater management treatment facilities.  Retaining walls are proposed for the rear of the parking lots.  

The action is for new development.  If the applicant were “reconstructing,” they would be reconstructing 2 houses and 1 house of worship, per Yorktown building and tax department records.   Nothing (0%) of the existing 3 structures will remain.  The two house structures and the church building are to be fully demolished, per the applicant's engineer and architect, documented in the records of both the planning and zoning applications for FBS.  This fact is contained in the record and is indisputable.   

Site Design’s Stormwater Management Plan for FBC site clearly states “it is proposed to demolish all existing buildings.” Please note that the Stormwater Management Plan is signed and sealed by Joseph Riina, PE and made part of the record in December 2010.  I believe I have supplied you with this document which is also contained in the Planning Board file.  

The action is to develop a new church building capable of holding 344 people on the 2nd floor and over 350 on the 1st floor.

The action is not to “improve” the existing sewer.  The sewer does not yet exist.  In fact, the proposal is to extend a sewer through no less than 2 wetland buffers and 1  protected water body, the Mohegan Lake outflow.e

(1) The present land use is both “Residntial (suburban)” and house of worship.   This section is incomplete.  

(2) The total acreage of the project area does not include the project area required to extend the sewer through Mohegan Lake.  This section should be revised to include the “total acreage of the project area.”

The impervious area on the site is being increased 55%.  This is not good.

(12) The applicant neglects to note Mohegan Lake, Mohegan Lake Outflow Wetlands, and Jones Hill which comprises 33% of the site.  Refer to section 5 of this Part 1 of the EAF.
(17) The site is not served by a public sewer utility.
(19) The site is, in fact, substantially contiguous with Mohegan Lake and its outflow Wetlands.

Part 1 (B) Project Description:

(1)(f):  The number of off-street parking spaces 45 is incorrect.  Yorktown records only show 23 spaces allowed on site.  45 is an arbitrary number not supported by any document in the record.
(g) the applicant in this EAF prepared in 2009, 4 years before the traffic study was completed, states the maximum trips generated per hour will be less than 20 per hour.  this is in direct contradiction to the applicant’s own traffic consultant’s, Maser’s numbers.
(h) 2 one family houses exist on the site contrary to the application.
(25) approvals required neglects to even name the variances before the board as part of the instant application.

Part 2 Project Impacts and their magnitude:

(3)  Yes, the proposed action WILL affect any water body as protected.  The applicant is extending a sewer through a protected water body, through Mohegan Lake and the wetland Outflow.  The applicant incorrectly omits the “extension of of utility distribution facilities [the force main sewer] through a protected water body.”

Part 3 Evaluation on the importance of impacts

The form begins “part 3 must be prepared if one or more impact(s) is considered to be potentially large, even if the impact(s) may be mitigated.”

Page 1 of part two identifies 2 potentially large impacts.  The applicant has omitted at least one more potentially large impact, the proposed sewer through a protected body of water.  Part three, page 21 of 21 of the EAF is completely blank.  

The known objections, including mine and that of the Mohegan Lake Improvement District (interested party to the application) relate directly to the sewer impact.

The development is directly affecting an adjacent wetland by virtue of the proposals sewer line under Mohegan Avenue, up to route 6, that goes through 2 lake/wetland buffers and at least one--if not two--protected water bodies. In order to trench the road, they will have to pump lake water out into a Frac tank, or directly back into the lake or wetlands.

The applicant incorrectly stated that the project will not extend a utility  (the proposed sewer) through a protected wetland.  That’s patently false.  It runs through at least one protected water body and a buffer.

Approval and Permits

I’m not sure why it even matters if they obtain approval of the remote parking lot and shuttle, or any of the other variances, for that matter.  ZBA and PB are pointless if current law and approvals are not enforced by the Yorktown code enforcement officer. FBC has started using the remote parking lot already without approval--as evidenced in the record by the photographs from 8/18/13 and 8/12/13, I am providing to the board under penalty of perjury.  Please see attached photos from of the HVTFCU parking lots at 11:30am on both of the aforementioned dates.   

Sadly, even though I have addressed the five criteria previously, I fear you’ve already made up your minds and will mindlessly rubber stamp the approvals.  I hold out hope that you will use your common sense, the facts contained with the record of instant application, and make a fair decision making the minimum adjustment to the law your jurisdiction provides.  I also hope you will consider that your determination is not limited to the 3 variances before you, but to the planning, and special use permit applications before the planning board as well.

Good day,

Evan Bray

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