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.


Sunday, March 16, 2014

Amended Lawsuit Against My Zoning Board of Appeals

In its entirety:


In the Matter of the Application of          :
EVAN DANIEL BRAY,                            :
Petitioner,                                               :
                                           :                   AMENDED VERIFIED PETITION
- against -                                               :
                                              :                            Index No. 1049/14
TOWN OF YORKTOWN                        :
-and-                                                      :
TOWN OF YORKTOWN                        :
PLANNING BOARD,                              :
-and-                            :
TOWN OF YORKTOWN                        :
TOWN BOARD,                            :
-and-                              :
FAITH BIBLE CHURCH,                        :
-and-                             :
FEDERAL CREDIT UNION                   :                                     :
Respondents,                                         :
For a Judgment Pursuant to Article 78  :
of the Civil Practice Law and Rules       :
    1. This document is an amended verified article 78 petition. PETITIONER re-wrote the petition to focus on the zoning determination at hand (R 0001-0015) and try to exclude all of the issues under the purview of the PB.  The zoning variances and the planning application are inextricably linked and it is hard to speak of one and not the other.  PETITIONER feels that divorcing the issues is proverbially splitting the baby.
    2. The certified administrative record is deficient because not all of the communications between the PETITIONER and TOWN are present; refer to exhibit 1: email communications between PETITIONER and TOWN during the period ZBA application 41/13 was open for public comment, and before a final determination was made.
    3. BANK failed to serve a reply to the first article 78 petition brought by the PETITIONER index 1049/14.  
4. TOWN made a late service of their response to the first article 78 petition 1049/14 and it was refused by PETITIONER for said defect.
5. PETITIONER, EVAN DANIEL BRAY, lives in a single family home with his family at 3496 Mohegan Avenue, Mohegan Lake, New York 10547.
6. CHURCH and PETITIONER’S properties share one common tax and zoning lot line.
7.The CHURCH made application with the Yorktown Planning Board on or about the year 2009. The planning proposal requires zoning variances; zoning variances and interpretations are under the jurisdiction of the Yorktown Zoning Board of Appeals. CHURCH made application with the ZBA on or about March 24, 2011.  ZBA  application #11/11 was described as follows [emphasis added]:
Application for a variance to legalize existing structures and allow construction of an addition with: 1) rear yard setback of 14’5” where 30 feet is required; 2) front yard setback of 29 feet where 30 feet is required; and 3) height of 37 feet where 35 feet is required in an R1-10 zone. Premises is located at 3500 Mohegan Avenue, Mohegan Lake, NY a/k/a Section 15.16, Block 2, Lots 50, 53, 54, 9 and 10 on the Tax Map of the Town of Yorktown.

8. ZBA acted on application #11/11 on or about March 24, 2011 at which time the application was voted on and approved.  
9. PETITIONER informed TOWN of deficiencies in the required certified mail filings for ZBA application 11/11; specifically, CHURCH did not notify several of the interested parties as required by Yorktown Code.  ZBA voluntarily rescinded approval 11/11 and the CHURCH reapplied, properly noticing all required interested parties at that time.
10. CHURCH reapplied under ZBA application 32/11. Fourteen (14) interested parties shown on a tax map (Exhibit 2) were notified by certified mail of said application. Application was advertised as follows[emphasis added]:
Application for variances as follows:
1. Construction of a building with a rear yard of 14.5 feet where 30 feet is required; a front yard of 29 feet where 30 feet is required and a height of 37 feet where 35 feet is permitted; and
2. Construction of a retaining wall within the side yard with a maximum height of 12 feet where 4.5 feet is the maximum height permitted on the easterly side of the site and with a southerly side yard setback of 2 feet where 12 feet is required.
Premises is in an R1-10 zone and is located at the east side of Mohegan Avenue and south side of Sagamore Avenue, Mohegan Lake, NY; a/k/a Section 15.16, Block 2, Lots 9, 10, 50, 53 & 54 on the Tax Map of the Town of Yorktown.
11. ZBA final determination for application 32/11 was approved and recorded on or about December 2011.  
12.  PETITIONER filed article 78 petition index 1564/12 challenging 3 of the the 4 variances granted under 32/11 as follow:
(i)14.5 foot rear yard where 30 are required,
(ii) a 12 foot retaining wall where 4.5 are permitted,
(iii) a 2 foot side yard where 12 feet are required.

    13.  Petition was dismissed by the court because CHURCH was not joined as interested party and CHURCH refused to waive the 30 day statute of limitations to allow PETITIONER to join CHURCH as interested party to the petition challenging the ZBA final determination. The court noted that some of the issues raised by 1564/12 would be addressed by the Planning Board.
14.PETITIONER understood the court’s decision to mean that article 78 petition 1564/12 was deficient for failure to join the CHURCH as interested party as landowner of an land subject of the ZBA application; note: BANK land was not a part of ZBA application 32/11 which was subject of 1564/12.  Because the CHURCH refused to waive the statute of limitations, PETITIONER believed it would have been a waste of time and money of all parties involved--including the court’s for PETITIONER to appeal.  If PETITIONER could turn back time, if PETITIONER could find a way to join the CHURCH as an interested in the proceeding within 30 days of the ZBA final determination of 32/11, he would.  As this was impossible, PETITIONER was saddened and abandoned his aspirations to appeal the court’s decision in 1564/12.
    15. PETITIONER has joined all landowners (BANK and CHURCH) of land included in the ZBA application 41/13 and subsequent final determination in the instant proceeding.  
    16. None of the variances approved in ZBA application 32/11 are being contested as a part of the PETITIONER’S instant article 78 petition.  The ZBA application being contested is based on new information and material changes not present in the previous application, such as the addition of the area variance for a newly proposed  BANK owned parcel that exceeds the zoning code allowance for remote parking facilities in commercial zoning districts.  Per code, the permissible distance of remote parking lots as of right is 500 feet, whereas the BANK owned portion of the development site is 909 feet distance from the CHURCH, requiring an additional variance not present in 32/11: the introduction of a shuttle bus service from the BANK lot located in a commercial zoning district, to the CHURCH facility located in a residential zoning district, the introduction of additional interested parties, the ZBA interpretation that a “church is a residential use”  in ZBA application 41/13 (R 0001-0015).  None of the aforementioned substantial changes were a part of the application for ZBA determination  32/11 and--in turn--were not a part or parcel to the proceeding documented in index 1564/12.  
    17. The land included in ZBA application 41/13 is comprised of a total of 6 separate tax lots in the town of Yorktown. Only 5 tax lots were advertised by the ZBA for application 41/13.
18. The CHURCH owns five of those 6 parcels located in a residential R1-10 zoning district at 3500 Mohegan Avenue, Yorktown, NY comprised of  parcels shown in tax map section 15.16, block 2, lots 9, 10, 50, 53 and 54.  
19. The BANK owns one parcel in a C-3 zoning district  at 3563 Mohegan Avenue, Mohegan Lake, NY 10547, situated on tax map section 15.16, block 1, lot 21.1.
20. The development site proposed by the CHURCH ZBA application 41/13 is owned by both respondent BANK and CHURCH.  Both owners’ land is the subject of ZBA application 41/13. The parcels are a distance of approximately 909 feet from one another on different tax blocks and in separate zoning districts; the BANK parcel is in a commercial zoning district and the CHURCH parcel is in a residential zoning district.  
21. The BANK owned parcel is seminal to the CHURCH’S ability to satisfy the minimum zoning code required parking spaces to support the proposed occupant load of the religious use.  Approximately 1/3rd (~25 spaces which equates to 100 persons/occupants, per zoning code, for religious uses) of the zoning code minimum required parking is proposed to be located on the BANK owned land.
22. CHURCH’S proposed new building site plan (R 0020) and ZBA application 41/13 do not include any reference to the location of the remote parking lot by address, section, block and lot and said lot is not shown graphically on the plan.
23. The PB and Yorktown building inspector identified zoning area variances required for the PB approval of the site plan after ZBA application 32/11 was approved and index 1564/12 was dismissed.  Approximately 7 additional interested parties were added to the planning and zoning board applications at that time.  On or about May 6th, at 12:39pm, 2013--the building inspector sent an email to the planning department director that addressed some of the issues  related to parking on lots 9 and 10 (R 0154).  
24. On or about 4:24pm on May 6, 2013 PETITIONER emailed PB director and assistant in advance of of public hearing that evening to inquire if the building inspector had issued a memorandum. Assistant confirmed nothing had been received.  Around 9:11pm on May 6--during the public planning board meeting of same date--planning director forwarded the email referenced in the preceding paragraph to counsel for the planning board and assistant planning board director; see (R 0154).  The subject email was not made publicly available at that time of public hearing on May 6, 2013 and no discussion of said email occurred during the public meeting. Please see exhibit 1  which contains an email from the PB claiming the May 6 email was a “memorandum.” Said memorandum was not shared with PETITIONER, public or presented as a “memorandum” during the public hearing of May 6, 2013.  It was not until 6/26/13 when it was emailed to the PETITIONER.  There has been no public PB hearing since 5/6/13; one is scheduled for 3/10/14 as of PETITIONER writing this sentence.
25. Petitioner followed up with building inspector on May 7, 2013 expressing disappointment that no memorandum had been issued at the May 6 public hearing.   See Exhibit 1
26. The PB application for respondent CHURCH was noticed for  a May 6, 2013 public hearing and notified  21 interested parties, 7 more than included in ZBA 32/11 and the previous iteration of the PB application.  Exhibit 3 is the tax map with markings to show interested parties and the list of said parties that were joined to PB application for CHURCH and the related to ZBA application 41/13 in May of 2013.
27. The ZBA application 41/13 for CHURCH was noticed for a May 23, 2013 public hearing and the same 21 interested parties were notified by certified mail as shown in exhibit 3.  
28.  The CHURCH reapplied for variances and an interpretation (not included in 32/11) under ZBA application 41/13 that was advertised to the public and interested parties as follows [emphasis added]:
    Property Address:  3500 Mohegan Avenue
Section: 15.16, Block 2, Lots 9, 10, 50, 53 & 54

This is an application for a variance to allow off site parking which is 909 feet distant from the proposed church were Section 300-183(A) of the Code allows for a distance of 500 feet.  An interpretation of Section 300-183(B) of the Code to determine whether a house of worship or church is one of the “residential uses” exempted by said Section of the Code from the front yard parking prohibition; and if the house of worship use is determined not to be one of the “residential uses,” a variance is requested to permit parking for four vehicles in the front yard and parking in the side and rear yards within two (2’) feet of the property line where five (5’) feet is required, all within the R1-10 zoning district.  Variances for a front yard building set back having 51.9 feet where 55 feet and a side yard of 45.3 feet where 55 feet is required, all set backs being measured from the center of the roadways abutting premises.  Variances previously granted by ZBA on December 8, 2011 included one for the front yard building set back measured from property line.
    29.  The variance request for the “4 vehicles” was deficient because it only included cars on lots 50, 53, and 54.  Lots 9 and 10 have additional cars proposed to be parked in the front yard setback and no variance was applied for those parking spaces in the required 30 foot front yard.  See (R 0020)
30.       Chapter 205 of the Yorktown Code is titled “Notification of Proposed Land Use Activity.”  In section 205-2 it defines “interested party” to a planning or zoning application as follows [emphasis added]:
The owner of the area of the land included in such proposed action, or that immediately adjacent or of that directly opposite thereto, without regard to any intervening rights-of-way, roads, highways or easements and/or any other parties otherwise designated by the Town Board.

    31. The BANK owns land included in the CHURCH ZBA application 41/13.

    32.  The BANK was not, and has not been, joined as interested party to either the zoning board of appeals or planning board applications for respondent CHURCH.
    33.  All of the landowners immediately adjacent to and directly opposite the BANK owned land part of 41/13 were not joined as interested parties.
    34.  The land owned by the BANK is a part of and parcel to the land included in the CHURCH’s proposed action and ZBA application 41/13 being challenged by the instant petition.  
    35. ZBA application 41/13 did not include the address, tax section, block or lot of the BANK owned parcel.  ZBA application only noted the Church owned parcels in the mailings to interested parties.
    36. Exhibit  4 is a copy of the tax map with the BANK parking lot shown with a red hatch pattern.  The parcels “immediately adjacent or of that directly opposite thereto, without regard to any intervening rights-of-way, roads, highways or easements “ to the BANK that were not made interested party to the ZBA application are highlighted in a fluorescent yellowish color .
    37. Sub section 205-3 of the Yorktown Code is titled “Procedure” and relates to planning and zoning board application procedures.  It states [emphasis added]:
At the public hearing or appearance required before the Town Board or at the public sale, the applicant or prospective purchaser, or their agent or attorney, shall certify, as part of the record, that written notice of the date, time and place of the hearing, appearance or sale, and a brief statement describing the action under consideration, on forms to be obtained from the Town Clerk, was sent not less than 10 days prior to the date of such hearing or sale to each interested party as herein defined. Each such written notice shall be sent by the applicant or prospective purchaser, by certified or registered mail, return receipt requested. At the public hearing, appearance or sale, the applicant or prospective purchaser shall submit the receipts evidencing proof of such mailing and a copy certified to be true and correct of the notice actually sent. The applicant or prospective purchasers shall also submit an affidavit of mailing; a location map (such as a copy of the Tax Map or its equivalent) sufficient to show the land included in the action, such adjacent and opposite land; and a directory indexing the mailings to the map. The same shall all be filed with the Town Clerk and constitute part of the official file.

38.  The tax map included with the notifications of ZBA application 41/13:
(i) are not sufficient to show all of the land included in the action,
(ii) do not include the BANK owned parcel. The CHURCH failed to notify all interested parties, as defined by code, of subject application 41/13.
39.  Yorktown Code section 205-7(a) addresses required sign notifications for planning and zoning applications as follows, with a little emphasis added:
Every applicant that submits an application to an approval authority empowered to approve or deny said application must post one or more notification signs on the property which is the subject of said application within three days of acceptance of the application by the approval authority and must maintain the posted sign(s) place until the approval authority has rendered its final decision approving or denying said application. The sign(s) shall be erected not more than 10 feet from each boundary of the property that abuts a public road and must be conspicuous to the public. The bottom edge of each sign so erected shall be positioned no less than 14 inches and no more than 36 inches above the ground. In the event that the subject property abuts more than one road, additional signs will be posted facing each road on which the property abuts. If the sign's visibility is obscured by vegetation, the applicant must cut the vegetation to a degree sufficient to maintain clear visibility of the sign from the road. If the property does not abut a public road, one or more signs shall be posted in locations that can readily be seen by the public. Any sign erected under this provision must be removed within 10 days after the approval authority has rendered its final decision approving or denying said application.

40. No notification signs have ever been placed on the BANK property for CHURCH’S ZBA or PB applications of which it is part and parcel.  Refer to Exhibit 5 which is the sign affidavits submitted to the PB and ZBA as part of their applications.
41.  Failure to properly join and notify all interested parties is a fatal flaw to a zoning variance application approval.  
42. The Yorktown building department issued a memorandum on March 16, 2011 to the ZBA (R 0169-0170) after the building inspector visited and inspected the CHURCH owned portion of the development site on or about the 2nd day of March, 2011.  The building inspector has not inspected and issued a similar memorandum relative to the BANK owned remote parking lot.   Said building department memorandum states, in part [emphasis added]:
Building Department records indicate that the two single-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, R1-10 zoning notwithstanding.  Both of these houses have subsequently changed from dwellings 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.
In 1962, a building permit was issued for construction of a temple on lot 54, and it was granted a Certificate of Occupancy in 1963
43. The approval of a temple (religious use) referenced in the preceding paragraph for lot 54 is the last PB approval in TOWN records for the development site owned by the CHURCH. The Lakeland Jewish Center began to occupy the temple located on lot 54 after the certificate of occupancy was issued on or about the year 1963. CHURCH now occupies the religious structure on lot 54.
44.  Exhibit 6 is the “APPLICATION FOR A BUILDING PERMIT TOWN OF YORKTOWN, NY” that was submitted by the Lakeland Jewish Center in 1962 to the PB.  The “proposed use” was listed as “temple.”
45.  Without an understanding of a related planning board application, the ZBA is unable to make a fully informed and reasoned decision for a zoning variance application.
46. The respondent CHURCH’S planning and zoning board applications are inextricably linked. It is difficult to speak of, and to, the respondent’s zoning application without referencing the planning application.
47. The certified administrative record has an error and omission.  On page 6 of the index of the record, Bates No. 0022--it incorrectly states “not dated.”  PETITIONER directs the court to the lower right corner of the site plan for the Lakeland Jewish Center site plan, just above the title block, where there are revision dates of the site plan signed and sealed by New York State Registered Architect of record Albert H. Orthmann certifying the plans (R 0022).  The last revision date is May 10, 1962 titled “PARKING NOTES.”  Revised May 9, 1962 title “Septic System Added.” The first plan date is April 30, 1962.  
48. The PB memorandum, subject “Parking Plan Review for Lakeland Jewish Center” is addressed from the TOWN Planning Consultant and Town Engineer to the Planning Board dated April 13, 1962(R 0176).  The text of the memo begins [emphasis added]:
“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. Based on your standard procedure we have reviewed this plan in accordance with the applicable zoning requirements.”  

The 1962 memorandum goes on to state that the proposed non-residential, religious use is in an R1-10 residential zoning district (R 0176).  The proposed CHURCH development site remains in an R1-10 residential zoning district in present day 2014.  The planning board memo also notes that the zoning code classified the “proposed use” of the Lakeland Jewish Center as a “religious center” in 1962.
    49.  The Zoning board of appeals was not involved with the approval of the Lakeland Jewish Center [LJC] in 1962 because the site plan did not require any zoning variances.  The plan was as of right because the joint report (R 0177) recommended that the parking for the proposed non-residential “temple” (religious use) have no parking in the zoning code required 30 foot front yard and the applicant complied with the code for non-residential uses, as the temple was described in 1962 to the Planning Board of the Town of Yorktown.  The applicant, LJC, complied with joint report request and located outside of the front yard.  See section 300-183(B) of the zoning code that mandates no parking for “non-residential” uses in required front yards in residential zoning districts.
50. The revision dates on the site plan (R 0022) correspond with the “MINUTES OF MEETING OF THE PLANNING BOARD” which are the official record of the Yorktown Planning Board meeting that was called to order on May 11th, 1962 at 8:30pm by Chairman, Max Ziegler (R 0177).  The second item in said minutes is for the approval of the Lakeland Jewish Center as follows [emphasis added]:
A joint report under date of May 10, 1962, was received from the Town Engineer and Planning Consultant relative to the proposed parking plan.  The Town Engineer informed the Board that the applicant had complied with all of the requirements and recommended that the parking plan be approved.  After some discussion, and upon motion duly made and carried, with all present voting aye, the parking plan for the Lakeland Jewish Center, dated April 30, 1962 and last dated May 10, 1962, prepared by Albert H. Orthmann, was approved and the Chairman authorized to sign the plan.
51. The 1962 Planning Board joint report (R 0178) from the Yorktown engineer and planning consultant to the Yorktown Planning Board dated May 10, 1962 titled “Parking Plan Review - Lakeland Jewish Center (2nd Report)” that specifically addresses parking for the proposed new use.  Report explicitly requests a change in note: “B- Relocate parking to provide 30 ft. front yard.”
52. Exhibit 7 is a copy of Bates no. 0022 highlighting the 30 foot front yard with no parking referenced in the preceding paragraph shown graphically and highlighted on the signed and sealed, TOWN approved parking plan for the Lakeland Jewish Center with no parking permitted in the required 30 foot yard of any of the CHURCH owned lots.   
53.  There is no TOWN record of any religious land use approval for the other three CHURCH owned lots 10, 50, and 53.  Building department records indicate that two single family homes also exist on the proposed CHURCH development site (R 0169-0170).
54. The certified administrative record incorrectly states that email dated April 8, 2013 from PETITIONER to TOWN had ten attachments (R 0145-0185).  Listed as attachment #2 is allegedly an email from the building inspector to the planning board director (not the ZBA) dated May 6, 2013 (R0154).  It is an impossibility that PETITIONER could have broken the space-time continuum to attach a document that was not yet written.
55.  PETITIONER directs the court to bates 169-170 which is a building department memorandum sent to the ZBA in reference to CHURCH application.  Note the letterhead of the building department and the “received” stamp of the ZBA (town attorney) which was recorded 1 day after it said memo is dated.  This is what an official building department memorandum looks like.
    56. There was no formal recording of the building inspector’s “determination” made in the May 6 email (R 0154) until the final determination of ZBA application 41/13 was recorded on or about December 19, 2013.
    57. TOWN building inspector’s email of MAY 6 (R 0154) is not supported by facts in the code or the TOWN planning and building department records [emphasis added].
    58. Section 300-183 (B) of the TOWN zoning code reads:
In any residence district, no required off-street parking facility shall be developed within the required front yard to serve other than residential uses, nor shall be developed within five feet of a side or rear lot line.

59. Building Inspector opines in email (R 0154) that:
Per 300-183[b] variances may be required for parking within 5' of a side or rear lot line.As to the question of whether parking would be allowed in a front yard per 300-183[b] I believe this question should be refered to the Zoning Board. My opinion would be that a church should be considered a residential use as it was a use by right until 2006 when it became a special permit use.Recently on the Country Children's Daycare the ZBA ruled that the day care was not a residential use,so parking wasn't allowed in a front yard.I am not familiar enough with that decision so that is why I would recommend a ZBA interpretation.

It is contradictory to state that the non-residential church use requires variances for the parking that is prohibited in required side and rear yard and not for the front yard parking prohibition.  Side, rear and front yard parking prohibition on “non-residential” uses are outlined in not only the same code section, 300-183(B), but also in the same sentence. ZBA’s final determination (R 0001-0015), specifically section 3(a) on R 0008, granted “side and rear yard variances for parking within 2 feet of property line and 5 feet provided.”  It is unclear to the PETITIONER what that sentence means, but understands it be variances for parking for a non-residential use within 2 feet side and rear lot lines as required by 300-183(B) where 5 feet is required. It is also an errant leap of logic by the building inspector to conclude that “a church should be a considered a residential” use simply because the zoning code, on or about the year 2006, was amended to disallow the church use as of right. Now church use requires a special use permit, but at no time did zoning ever classify the church use as a residential use; the PB record confirms that a church is not a residential use. From (R 0154), emphasis added:

The parking on the lot across the street should be considered zoning compliant per 300-183[a]. Faith Bible will also need a special permit from the Planning Board.300-21(c)1[b] 4 and 5 are both religious uses.Both require a special permit. These sections do not direct you to a specific section in Article VII ,Permitted special uses.I do not believe it would be proper to apply the standards of 300-54 to this application.There is no definition in the code for a religious institution. To apply this section one would have to decide this is a religious institution.That would ignore the fact that there exists a permitted special use called a place of religious worship 300-21(c)1{b}4. I do believe it would be proper to use 300-54 in the case of a religious institution.If the town wanted to regulate all religious activities under 300-54 there would not be 2 different religious uses listed in the special permit uses.

60. TOWN in ZBA final determination 41/13 (R 0001-0015) is relying on conjecture from the CHURCH and their attorney that, for purposes of the prohibition on front yard parking, TOWN has always considered parking for religious uses to be residential uses.   The record is unequivocal that in 1962, the temple/church building in question was considered a “non-residential use” by the planning board on the parking plan (R 0022) which required a 30 foot front yard without parking and is shown on the plan (exhibit 7); the PB meeting minutes of the approval of the religious use and PB application (R 0177-178 and exhibit 6) from the same year literally put it in writing noting that the review of the application was for a “non-residential use,” even before special use permits were required. If TOWN considered a church or temple a “residential use,” then the TOWN PB would not have required the 30 foot front yard with no parking on the last recorded planning approval for the site in question.  Zero parking spaces are currently permitted in the required front yards on the CHURCH’s current site plan approval.
61. The ZBA in their determination notes (R 0005-0006):
In its 2008 Country Children’s Center determination, this Board adopted a more narrow interpretation of the term “residential use” by specifically determining that daycare centers are not a “residential use” as that term is used in Section 300-183B.

The Board now finds as follows: That places of religious worship were an as of right use in residential zoning districts until recently. The Board also considers the significant number of places of religious worship in the Town that have front yard parking for the use of congregants. Places of religious worship are also traditionally found in residential neighborhoods and to now characterize such use as non-residential, with the effect of eliminating front yard parking as an accommodation, would be inconsistent with the community character and the unique status places of religious worship have traditionally enjoyed in the Town of Yorktown.  Under these circumstances, it is rational for places of religious worship to be encompassed within the term “residential use.

62. By virtue of being in a residential zone, the church is not considered a “residential use.” Churches have always has been classified as a religious use of the land.  Since 2006 said religious use has required a special use permit.  The special use permit for the CHURCH application is uncontested by any party
63. The board fails to cite any TOWN record and the certified record of the ZB application 41/13  is devoid of any historical document, approval or plan that  would indicate that--even though “places of religious worship are traditionally found in residential neighborhoods”--the TOWN has ever classified a church as a residential use, for any reason.
64. Parking does not define the surrounding community character or any other residential community’s character in the TOWN. The CHURCH is in a residential zone situated between the edge of a lake and a very steep hill wooded with many tall trees.  It is absurd to argue that requiring a 30 foot front yard without parking somehow would be inconsistent with the “community character.” The last site plan on record with the TOWN for the CHURCH property requires a 30 foot front yard with no parking.  Parking can, and is currently approved for CHURCH on lot 9 and 54, but only behind the 30 foot required front yard setback line.   
65. The board offers no reason or evidence why they chose to apply a different standard in 41/13 from the “reasonable” conclusion the ZBA made in final determination for the day-care in 2008 (R 0298-0311) which is arbitrary.
67. 2008 determination regarding parking for a non-residential use in a residential zone (section 300-183[B]) reasoned that because the daycare required a special use permit and that it didn’t meet the zoning definition of a “residence” that parking was prohibited in the required 30 foot front yard.
66. The proposed CHURCH does not meet the zoning definition of a “residence.”
67. The board’s consideration of the “significant number of places of religious worship in the Town that have front yard parking for the use of congregants” is not present in the record; no specific examples, site plans, photographs or tables comparing planning or zoning metrics (e.g. building area, site acreage, yards in relation to parking, occupants, etc…), or discussion in a public hearing are in the record.  PETITIONER supplied a simple case study sample of houses of worship (religious zoning uses) based on research at the TOWN planning department records (0386-0407).  It included a table and photographs of the site plans the numbers were culled from TOWN records by PETITIONER.  Findings showed that while a couple parking spaces were allowed on some site plans (likely through a zoning variance in the record), none of these approved site plans eliminated the front yard completely as is  proposed by CHURCH on lots 9 and 10.  TOWN and CHURCH relied on hearsay and conjecture as evidence to make their determination because the last application, approval and parking plan on record in the TOWN record is predicated on the temple (religious use) being “non-residential”for all zoning code parking requirements.
68. Zoning code section 300-183(b) does not prohibit parking in front yards, only in the required 30 foot front yard setback line to provide screen and buffer parking lots in residential zones.  Board’s determination (R 0001-0015) stating that “Places of religious worship are also traditionally found in residential neighborhoods and to now characterize such use as non-residential, with the effect of eliminating front yard parking as an accommodation, would be inconsistent with the community character and the unique status places of religious worship have traditionally enjoyed in the Town of Yorktown.” is deficient because it ignores the fact that while front yard parking can be found in other houses of worship around Yorktown, none of them have no setback from the property line abutting the road.  There is always a setback and encroachments that do occur are of a limited number and still provide a front yard setback to screen the parking lot in residential zones.  Based on the PB records, the town “Zoning Ordinance” and the CHURCH’s existing site plan approval on record show the PB classified it as a “non-residential use.” (R 0175-0178 and 00-22) requiring a 30 foot front yard setback with no parking.  Parking can occur in the front yard, just not within the 30 feet from the property line fronting a road on any given lot.  
69. ZBA clearly fails to understand the purpose of the required front yard setback which is to provide a screened buffer.  ZBA overlooks zoning code section 300-36(D) titled “Standards Applicable to All Special Uses”  (the proposed CHURCH requires a special use permit) which reads (emphasis added):
Parking areas shall be of adequate size for the particular use, properly located and suitably screened from adjoining residential uses, and the entrance and exit drives shall be laid out so as to prevent traffic hazards and nuisances.

70.  The PB “fully supports” the requested variances, but is silent about the interpretation that a church is considered a residential use(R 0004).  PB records indicate the CHURCH(former temple) was classified as a “non-residential use” in 1962 when the existing CHURCH use was first approved (R 0175-0178 and 0022).  A special use permit was not required by zoning code for the CHURCH use in 1962.
71. Footnote 3 in the determination (R 0004) is incorrect.  The building inspector’s May 6 email (R 0154) that the TOWN is now putting forth as a final determination does not address “zoning compliance of the site plan for the New Church…” Inspector’s memo of May 6 noted that (emphasis added):
The parking lot across the street should be considered zoning compliant per 300-183[A].

TOWN inspector does not say that the proposed site plan is zoning compliant relative to parking in the front yard as required by section 300-183[B]. Also see memo of June 21, 2013 (R 0297).  If a church is a non-residential use, then the parking proposed by the CHURCH on lots 9 and 10 is grossly deficient and requires an additional zoning variance not requested in application 41/13 or 32/11; CHURCH only requested front yard parking for 4 vehicles which does not include proposed parking spaces on lots 9 and 10.
300-183[A] reads:
The required off-street parking facilities shall be provided on the same lot or premises as the structure or land use they serve, except that off-street parking spaces required for structures or land uses on two adjoining lots may be provided in a single common facility on one or both of said lots, and except that the Planning Board may permit all or part of the required spaces to be located on any lot within 500 feet of the building, in any nonresidential district, if said Board determines that it is impractical to provide parking on the same lot as the building and appropriate covenants are approved by the Board and filed in the office of the County Clerk.

    72. Town building inspector superseded May 6 email wiht a formal memo of June 21, 2013 (R0296-0334).
73. TOWN building inspector does not specify (R 0154) if the “zoning compliance” of lots 9 and 10 is for the existing PB approval for the CHURCH or if it is for the proposed new CHURCH.  These two site plans are very different relative to parking. The 1962 approval for CHURCH required no parking in the required 30 foot front yards with no exception.  
74. No party disputes that lots 9 and 10 are allowed to have parking in the front yards. The last TOWN record for the CHURCH site plan approval clearly shows that parking was permitted in the front yard on lots 9 and 54 for the CHURCH, but not within the required 30 foot front yard; see R 0022 and exhibit 7.
75. The first time the building inspector’s May 6 memo was put forth as a final Determination was recorded with the TOWN clerk on about December 19, 2013.  PETITIONER commenced the instant article 78 petition on or about January 10, 2014--approximately 22 days after the “final determination” of the building inspector was recorded, well under the 60 statute of limitations afforded parties to challenge such determinations.  PETITIONER is challenging the email turned final determination (R0154) and believes that portions of the determination were made with arbitrary, capricious, incomplete, and historically inaccurate information.
76. ZBA determination is deficient based on their misreading of the May 6 email (R 0154).  Said email was superseded by building department memo (R 0296-0334). The misreading is a vehicle to explain away zoning non-conformities in the proposed site plan relative to lots 9 and 10. The TOWN is arbitrarily redefining “church” to a residential use for one reason: the parking prohibition in required 30 foot front yards for non-residential uses in residential zones. There is not an inkling of evidence in the record that indicates the TOWN has ever considered churches, temples or any other religious use structure to be anything other than a religious use--whether it was as of right or required a special use permit.  
77.  On June 21, 2013, several weeks after the May 6 email (R 0154),TOWN building inspector issued a formal request to the ZBA requesting an interpretation of code section 300-183(b) (R 0297).  He concluded the request with two notes:
(i) “it should be noted that churches/houses of worship were a use by right in residential zoning districts until 2006 when they were changed to a special permit use.”
(ii) “Also in 2008  the ZBA interpreted 300-183B as part of the Country Children’s Center determination.  I have attached attached a copy of that determination for your reference.” (R 0298-0311)
He did not say that a church was a residential use.  He simply noted that the proposal now requires a special use permit for the church use whereas before 2006, no such special use permit was required.
    78.  The referenced determination states:, in part (R 0300):
However, after closely examining the Zoning Code, the Board now determines that prior interpretation to be too expansive.  The Board finds that although a day care use is permitted by special use permit in residential zoning districts, it is not a “residential use” as that term is used in Section 300-183 (B). In making this interpretation, the board relies on the term “residence” as defined in the zoning code as the “place where a person maintains a fixed, permanent, and principal home, to which he, wherever temporarily located, always intends to return” (see Zoning Code Section 300-3 (B)) and distinguishes this term from “Day-Care Center” that is defined [in the zoning code], in part, as “[a] program or facility licensed by the New York State Department of Social Services in which  child day-care is provided on a regular basis to more than six children for more than three hours but fewer than 24 hours a day per child, in a facility other than the child's’ home” (see Zoning Code 300-53(B)) The expansive and broad interpretation of “residential use as previously adopted, severely limited any application of Section 300-183(B). (See also Zoning Code 300-11 (“In interpreting and applying this chapter, the requirements set forth in this chapter, the requirements contained herein are declared to be the minimum requirements for the protection of public health, safety, morals, comfort, convenience and general welfare.”)) The Board finds that the more narrow interpretation of “residential use” to be reasonable and more consistent with Zoning Code provisions.

    79.  In May 6 email (R 0154) building inspector ponders which of the two “religious uses” defined in the zoning code the CHURCH should be classified as per sections 300-54 and “300-21(c)1{b}4” of the zoning code.  Not noted, and perhaps overlooked by the TOWN inspector is that the proposed CHURCH would not comply with zoning code one of the two religious use classifications in the code.  Code section 300-54 noted in the May 6 memo reads, in part (emphasis added to highlight CHURCH deficiencies relative to code compliance):
At least one off-street parking space shall be provided for every member, except that in the case of memberships issued to families, there shall be at least one off-street parking space for each family, with the further exception that clubs with a capacity which can be measured in number of seats shall provide one off-street parking space for every five seats. The Planning Board may reduce these parking requirements in any case where the maximum anticipated number of cars at a club, because of its particular type, location, hours of operation, capacity of club facilities or other reasons, would be less than the requirements provided for, but not less than one space for each three memberships. Parking areas shall be located at least 25 feet away from all property lines. The Planning Board shall require suitable landscaping around parking areas, which shall be permanently improved. Access drives from existing streets and highways shall be located so as to avoid unsafe conditions and traffic congestion. The Planning Board may prohibit access to a nonprofit use from local residential streets. Off-street parking for religious institutions shall comply with §300-182.

Furthermore, subsection (D) of 300-54 reads:

A nonprofit use organized for purposes which are conducted within a building shall be located on a site at least one acre in area but no less than the minimum lot size of the district in which located. All buildings shall be set back at least 75 feet from all property lines and shall not cover more than 20% of the site for properties under 20 acres. For properties over 20 acres, the maximum building coverage will be 10%.

    80.  The building inspector’s determination noted in footnote 3 of the ZBA final determination (R 0154) does not conclude which of the two religious special use permits is required for CHURCH. PETITIONER notes the prohibition on parking within “25 feet of all property lines” required and the building setback requirements the proposed CHURCH required by 300-54.  The proposed CHURCH can not meet the parking requirements of  “religious institution” per TOWN code requirements.
81. The CHURCH, through their attorney, suggested that the parking prohibition for non-residential uses in the required 30 foot front yard was not applicable to the proposed CHURCH use because for this zoning code section--and this section alone--the TOWN has always interpreted CHURCH’s to be residential uses.  This despite the fact that for every other aspect of the propsal such as fire protection, sewer infrastructure, parking spaces, occupant load, egress, tax classification, etc...the CHURCH considered a religious use.  The record even shows in the building inspector’s email of May 6, 2013 (R 0154) that the TOWN was trying to determine which of the two religious uses spelled out in the zoning code, literally concluding his email by saying “If the town wanted to regulate all religious activities under 300-54 there would not be 2 different religious uses listed in the special permit uses.”  
82.  The ZBA did not fully consider the EAF and environmental impacts of the proposal. Since the Town did not coordinate a lead agency for the SEQR, then each involved agency must perform it's own SEQR and determination.  ZBA ignored the potentially major environmental impact of the proposed sewer utility extension through Mohegan Lake, the wetland outflow and their buffers which serves a drinking water for Peekskill via the Hollowbrook Reservoir watershed.  Refer to (R 0474-0475) email from Mohegan Lake Improvement District (department of TOWN) which expressed concerns about the proposed sewer’s effect on lake health.
83. ZBA’s reasoning in determination 41/13 is illogical at its core and evident throughout the final determination when compared against the record and code.  
84.  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 ZBA final determination 41/13 with all references to said approval being expunged from TOWN records for failure to join all interested parties as required by law.
2. DIRECTING the RESPONDENTS, should they decide to pursue the planning application further, to file one new ZBA application joining all interested parties, as defined by code, to both the ZBA and PB applications.  A single ZBA application joining all interested parties congruent with the PB application will avoid segmenting the issue. It will allow the ZBA and the interested parties a comprehensive look at the full scope of the zoning variances required for the CHURCH development.
3. GRANTING such other and further relief as the Court may deem just.

Kind regards,

Evan Daniel Bray
Petitioner, pro se.
Dated: March 10, 2014

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