The End Times Are Near In Yorktown

That's a bit dramatic, but my five year legal battle with Yorktown will be ending soon--one way or another.  Motion to dismiss thwarted.  Supplemental Appendix (Volumes I and II, 415 pages) being served tomorrow by the Westchester County Sheriff.  Adversaries' briefs due by February 18.

Since it seems like I'll be heard on the merits of my brief (arguments), I thought I'd share it with the Mohegan Lake community--as if you are not at least vaguely familiar with it; this is the most refined it's been.  I had intended to share every paper and reply and whatnot, but it's exhausting and not a great legal strategy--or so I've concluded, as a pro se petitioner.

That said,  here it is!:

To be argued by: Evan Bray, Pro Se

Time Requested: 15 Minutes

APPELLATE DIVISION DOCKET No. 2015-02066

SUPREME COURT OF THE STATE OF NEW YORK

APPELLATE DIVISION: SECOND JUDICIAL DEPARTMENT

45 MONROE PLACE

BROOKLYN, NY 11201

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IN THE MATTER OF

EVAN DANIEL BRAY                                            

--PETITIONER/APPELLANT-   

v.

TOWN OF YORKTOWN ZONING BOARD OF APPEALS, TOWN OF YORKTOWN PLANNING BOARD, TOWN OF YORKTOWN TOWN BOARD, FAITH BIBLE CHURCH, AND HUDSON RIVER TEACHERS FEDERAL CREDIT UNION

--RESPONDENTS/RESPONDENTS

--------------------------------------------------------------------------------------------

EVAN BRAY

APPELLANT PRO SE

Click on the small "read more" link located below, and to the left, to read more.

WESTCHESTER

INDEX #1049/14

Table of Contents

STATEMENT OF FACTS……………………………………………………...….3

QUESTIONS RAISED……………………………………………………..……..7

ARGUMENT……………………………………………………………………...8

POINT I: A HOUSE OF WORSHIP IS NOT AND NEVER WAS CONSIDERED TO BE A RESIDENTIAL USE FOR THE PURPOSE OF ELIMINATING A 30’ REQUIRED FRONT YARD WITH NO PARKING FOR “NON-RESIDENTIAL” USES BY THE TOWN OF YORKTOWN AS SUPPORTED BY THE FACTS IN THE RECORD…………………...8

POINT II: DEFICIENT NOTICE TO INTERESTED PARTIES; NOT ALL OF THE PARCELS SEMINAL TO THE PROJECT APPROVAL WERE ADVERTISED ON THE APPLICATION. NAMELY, THE REMOTE PARKING LOT OWNED BY HRTVFCU REQUIRED FOR THE FBC DEVELOPMENT…………………………………………………...…...16

IN CLOSING……………………………………………………………...21

Statement of Facts

1. Evan Daniel Bray maintains his sole and primary residence, along with his wife and 4 daughters at 3496 Mohegan Avenue in the Town of Yorktown, Westchester County, NY 10547. [APPELLANT]  The residence is located in an R-10 residential zoning district.
2. Town of Yorktown Town and Planning Boards, along with Zoning Board of Appeals  [collectively the TOWN]  are a municipality in Westchester County, NY,  363 Underhill Avenue, in the Town of Yorktown, NY 10598. The ZBA is the administrative body whose final determination is the subject of this appeal.
3. Faith Bible Church [FBC] is a house of worship and owns two parcels, plus 3 other parcels bisected by Sagamore Avenue, immediately adjacent to the APPELLANT’S residence (e.g. we’re neighbors).   All said parcels are also in an R1-10 zoning district.  The original developer and occupant of the subject house of worship was the Lakeland Jewish Center circa 1962.
4. Hudson River Teachers Federal Credit Union [HRTFCU] owns aN improved lot, approximately 900 feet from FBC’s development site with parking for their credit union. As a part of FBC’s ZBA application, HVRTFCU entered into a “license agreement” with FBC to use HRTFCU parking spaces to satisfy the minimum number of parking spaces for the proposed new FBC development and, as such, are an interested party to the appeal.
5. FBC owns 5 lots next to APPELLANT’S home.  Per TOWN records in the form of a Building Inspector’s memo dated 16 March 2011 (A104-A105) of those 5 FBC lots, 2 are unimproved, 1 has a single family residence, one has a small house of worship and a single family residence, and one is approved for 6 parking spaces in conjunction with the house of worship.
6. FBC made application to the ZBA for, among multiple area variances over several ZBA applications, an “interpretation” that a “house of worship is a residential use,” which was granted by the ZBA.  The interpretation is recorded in ZBA application #41/13 (A106-A115; interpretation begins on A109).  This interpretation obviated the zoning code requirement that “non-residential uses” in residences zones have no parking within the first 30 feet of the front yard of any new development.  This zoning provision provides for adequate screening and buffering from parking areas and the street to maintain residential community character.  APPELLANT is arguing that not only is the reasoning used to arrive at such an interpretation arbitrary and capricious, but also that the notifications for said application were defective--and therefore, the entire ZBA approval for application 41/13 should be vacated because failure to notify an “interested party,” or parties--as is this case--is a fatal flaw to any such action and grounds to vacate the entire approval of the application.
7. In the residential R1-10 zoning district that FBC proposes a new house of worship, such use is non-residential and requires a “special use permit.”
8. Zoning Code section 300-36(D) titled “Standards Applicable to All Special Uses,” reads “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.”
9. Zoning Code Attachment 300a sets forth standards for Residential Zone Standards and requires a 30 foot front yard with no parking for all uses requiring a special use permit.  The 30 foot front yard is one of the vehicles zoning code uses to ensure parking areas for non-residential uses are “properly located and screened from adjoining residential uses.”
10. The application by FBC for the zoning variance was an action that required notification to the “interested parties” affected by the proposal.  TOWN Code defines interested parties as “The owner or owners of property immediately adjoining or abutting the parcel or parcels to which an action, as herein defined, is contemplated. Properties on the opposite side of a road running along said parcel shall also be notified, and/or any other party otherwise designated as an interested party by the Planning Board.
11. HRTFCU’s parking lot is part of the action (ZBA application) because those parking spaces are required to satisfy the Zoning Code minimum number of parking spaces to support the proposed occupant load of FBC.
12. Not all of the parties immediately adjacent to HRTFCU were notified of the application and one of those parcels immediately adjacent to HRTFCU is a house of worship (St. Mary’s Episcopal Church) which--according to oral comments made during the public hearing for ZBA application 41/13 by the president of HRTFCU, Thomas Powers--also uses the Credit Union’s parking spaces.  This is relevant because FBC’s proposal requires every one of the bank’s parking spaces to satisfy the minimum number which could adversely affect St. Mary’s.

Questions Raised

1. Is a house of worship a residential use?
2. Was ZBA application 41/13 properly properly noticed to all “interested parties” as defined and required, and did it include all of the parcels affected by said ZBA action?  

Argument

1. The NYS Supreme Court reasoned in its decision, order and judgment, that “the decision by the ZBA as to each of the variances requested was rationally based and supported by evidence set forth in the record, as was the ZBA’s determination that a house of worship such as FBC’s proposed church is a residential use which allows for parking within the front yard.(A17-A18)” That statement is simply not true and was based solely on FBC’s attorney, and other representatives,’ hearsay and conjecture.  Many of the facts recorded in the application contradict that statement and none of the facts support such an interpretation.
2. The record contains a memo to the ZBA from the Yorktown Building Inspector for FBC’s proposed new development.  In that memo (A104-A105), he unequivocally states that the last recorded Town approval for a house of worship at the subject site was approved on or about the year 1963; this is the planning board approval for The Lakeland Jewish Center which is now occupied by FBC.   The Building Inspector notes that there are also two single family homes on the proposed FBC development site.  The last recorded TOWN approved site plan for the house of worship FBC currently operates out of is dated dated April 13, 1962 (A121; Certified Record oversized plan 0022. Note: the copy of the judgment roll with the raised seal of the Westchester Supreme Court which comprises my original appendix documents is too small to read; Appellant hopes the court is able to review the oversized plans when the record is subpoenaed to the 2nd. Dept.; the exclusion of parking within the first 30 feet of the two lots approved for the temple circa 1963), and the Planning Board minutes recorded in the file (A124-127) clearly demonstrate that even in 1963--when modern zoning was in its infancy--The Town of Yorktown interpreted that a house of worship was a “non-residential use” and required a 30 foot setback before parking was allowed; this is evident graphically in plan (note the 30 foot setback line on both lots before any parking is permitted).   
3. In a memorandum to the Planning Board from the Town engineer titled “Parking Plan Review for Lakeland Jewish Center” dated April 13, 1962 (A125), he begins  the first sentence:

As is 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 requirement...

In a memo dated May 10, 1962 (A127), the Town Engineer provided a second parking plan review memo and requested the following changes:

On May 1, 1962 a revised plan was submitted showing these various changes.  The changes as requested are as follows:

A - Statement of maximum occupancy so that required parking spaces may be figured

B - Relocate parking to provide 30ft. front yard.

C - Increase parking aisle to 25ft. for right-angle (90 degree) parking spaces.

D - Show 9’ x 20’ instead of 8’ x 20’ parking spaces.

E - Show drainage for parking areas.

F - Relate parking plan to metes and bounds survey of property.

I really have nothing to add to the Planning Board’s comments above; it’s obvious from their recorded comments that parking was a major concern; it is the subject of all of the TOWN’S written comments in the Planning Board record of approval for the existing house of worship FBC occupies today.  And they explicitly required no parking in the first 30 feet of the required front yard.  It’s black and white.  Parking in the first 30 feet of a front yard for a house of worship is not customary in Yorktown and, actually was and  is prohibited by zoning code in 1962.

In the Court’s decision, as well as the ZBA’s, they reason that “places of worship were an as of right use in residential zoning districts in the Town until a recent Code revision made them a special permit use (A109, last paragraph).”  That’s all well and good and true, but the Court and ZBA ignore the fact that even when places of worship were an as of right use in residential zoning districts on or about 1962 when the current house of worship was originally approved and developed--they, the TOWN--never considered a house of worship a residential use. The special use permit to operate a house of worship (for FBC’s new development) in a residential zone was uncontested by the petitioner/appellant, or any other party.  We welcome a new church development, but ask that it be reasonably scaled, consistent with the character and scale of the neighborhood, with adequate parking which is adequately screened and set back from all residential uses, as required  by Yorktown Zoning Code section 300-183(B) which states: “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”]. In the subject zone, a 30 foot front yard is required with no parking for non -residential uses, such as a house of worship.

4. In section 300-3 (B) of the TOWN Code (Zoning Definitions; word usage) defines “residence” as follows: “The place where a person maintains a fixed, permanent and principal home, to which he, wherever temporarily located, always intends to return.”  
5. FBC, TOWN, and APPELLANT all agree that the FBC proposal is not a “residence” and has no residential component.
6. Along with “residence,” the TOWN Code also defines “houses of worship.”  In fact they define two categories of houses of worship in the Zoning Code [ZC] Schedule of Regulations located in section 300-21.  That section “sets forth the uses of land and buildings for the zoning districts established by this chapter.”  This chapter regulates the entire FBC development located in an R1-10 residential zone.  Specifically sections 300-21(C)(1)(b)[4] and 300-21(C)(1)(b)[5].  Those sections pertain to  “Places of religious worship, convents, and rectories,” and “Religious, charitable, and eleemosynary [editor’s note: had to look that one up] institutions as defined herein,” respectively.  Both require “special use permits” in residential zones. FBC’s proposed house of worship, per Yorktown Zoning Code, requires a “special use permit” because it’s a non-residential use in a residential zone.  
7. The TOWN has already issued a special use permit for proposed FBC “house of worship.”
8. In the ZBA’s final determination for FBC they cite a recent determination they, the ZBA, made in a similar situation.  In that determination, they “rely on the definition of ‘residence’” to deny the The Country Children’s Center (A106-A115; begins on A109) parking within the first 30 feet of that proposal’s front yard.
9. The Country Children’s Center daycare is also in a residential zone.  Just as houses of worship were as of right in residential zoning districts prior to the aforementioned code change--requiring a special use permit for a house of worship use--were as of right uses in residential zones--but neither was ever considered a “residential use.”  Both, under current zoning code, a daycare and house of worship require “special use permits.” Never were daycares or houses of worship or medical offices or schools or any other non-residential use that was considered as-of-right in residential zones years ago--or requiring “special use permits” today--considered “residential uses,” for any purposes, front yard parking setback requirements included.  Houses of worship, or at least the record present herein, were never considered “residential use” to obviate front yard parking minimum setback requirements.  If such a record existed, the TOWN or FBC would have produced it and immediately silenced the APPELLANT.  
10. Despite the ZBA’s and FBC’s insistence that parking in the front yard is “customary,” there is no fact in the record or code to support that assertion.  It’s arbitrary and capricious to arrive at such a conclusion in light of the aforementioned code sections, code definitions, and evidence in the certified record.  The ZBA interpretations doesn’t pass the proverbial smell test and is not supported by any evidence in the record. A house of worship is not a residential use. Not even for purposes of skirting a Zoning Code prohibition on parking for non-residential uses in required front yards.  That was true in 1963 when the house of worship was built and it remains true today as FBC proposes a new development.

Deficient Notification To Interested Parties

1. Notifications for ZBA application 41/13 were sent to 21 interested parties (A128-A132.  The subject application claimed the action involved 5 parcels shown on the town tax map as section 15.16, block 2, lots 9,10, 50, 53 and 54.  
2. However, ZBA application 41/13 requires action on a distinct and separate lot under separate ownership.  That lot is owned by HVRTFCU and is sited on section 15.16, block 1, lot 21.2 which is shown hatched nearer the bottom of the page; FBC lots labeled “site location” (A133).
3. The lot owned by HRTFCU is not identified in the Notice To Interested Parties for ZBA application 41/13.
4. The lot owned by HRTFCU is a seminal part to the action before the ZBA as it provides a substantial portion of the minimum number of parking spaces required to meet the town zoning code for the new FBC development.
5. TOWN Code section 300-202 defines “interested parties” to a ZBA application as follows: “In addition to all other papers and documents required to be submitted on an appeal or application to the Zoning Board of Appeals, the term "interested parties" shall mean the owner or owners of property immediately adjoining or abutting the parcel or parcels to which the appeal or application relates and the owner or owners of property directly across the road, street or avenue, if any abutting the parcel or parcels to which the appeal or application relates.”
6. The HRTFCU parcel is part and parcel to the subject ZBA application, but does not appear on the ZBA application, as advertised to the public. All of the HRTFCU parking spaces are required to meet the minimum number of parking spaces to support the proposed FBC occupant load.
7. The HRTFCU property is not only not identified as a part of the application on the Notice To Interested Parties (A128-A132), but also not all of the properties “immediately adjoining or abutting the parcel or parcels” were made interested party and sent the requisite “Notice to Interested Parties.”  The parcels in section 15.16, Lot 1, Blocks 4, 21, and 22 were not noticed of the action.  All of those parcels meet the definition of interested party requiring a notice of the ZBA application.  It is interesting to note that the owner of lot 22 is St. Mary’s Church and they also, according to HRTFCU’s president Tom Powers in oral testimony at the public hearings--seconded by FBC’s attorney Al Capellini--said that St. Mary’s also uses the same parking lot.  Which wouldn’t be a problem, but ALL of the spaces on the lot are required to facilitate the proposed new FBC house of worship and they both have services on Sunday morning.  No representative of St. Mary’s was present to discuss the project. Those are the parcels adjacent, or directly across the street from HRTFCU.  By law, they must be notified of the ZBA application in question.  
8. The omission of the HRTFCU parcel from the Notice to Interested Parties is notable because one of the parties immediately adjacent to the site is Saint Mary’s Church which--purportedly, through hearsay and conjecture by FBC’s attorney and the HRTFCU president--has an agreement with HVTFCU to park at the same time as FBC, though no record of such was entered into the file and no representative from St. Mary’s attended any of the public hearings.  If true, this would lower the number of parking spaces available to FBC.
9. The other property owners who meet the definition of “interested party” immediately adjacent to the HRTFCU parcel that were not sent the Notice to Interested Parties are in section 15.16, Lot 1, Blocks 4, 21, and 22  (see: A133).
10. TOWN Code section 205-7(a) relates to required notification signs for ZBA (and all other TOWN approval agencies) applications and reads: “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.”
11. The HRTFCU is, as previously stated, obviously subject to the FBC application 41/13 because the proposed development requires HRTFCU’s land to meet the zoning minimum number of Code prescribed parking spaces.  HRTFCU section block and lot (15.16, 1, 21.1) is not listed on the “notice to interested parties” for ZBA application 41/13 (A129).
12. Similarly to the Notices to Interested Parties, no Notification Signs were placed on the HRTFCU land as required by zoning code (A97-A99).
13. Failure to notify “interested parties” is a fatal flaw to any application subject to the approval of the Zoning Board of Appeals.  

In Closing

Appellant believes that the ZBA and the Westchester County Supreme Court used arbitrary and capricious reasoning unsupported by and--in fact--actually contradicted by the record contained in the judgement roll to arrive at their determinations. The “interpretation” that a “house of worship is a residential use” was used solely in order to eliminate the zoning code prohibition on “non-residential” parking in the first 30 feet of the front yard. This interpretation will have not only a detrimental impact to the character of the neighborhood, but also devalue the appellant’s primary residence--along with many other homes in the area.  

The applicant FBC did not include all of the land included in the application by excluding the HRFTCU address, section, block and lot on the application.  All of the “interested parties,” as defined by the zoning code, adjacent and across the street from the HRFTCU parcel were not notified of the application and the proper signage was not displayed on that property either.  

Appellant respectfully requests that this court vacate and set aside Yorktown Zoning Board of  Appeals final determination contained in ZBA application #41/13--and by extension, the related planning board application that relies on the ZBA interpretation and granting such other and further relief as the Court may deem just.

____________________

Evan Daniel Bray

Appellant, pro se.

Dated: October ___, 2015