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

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

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

Big News

Guess who passed the "bat-shit crazy" pro se petitioner test?  This guy! [two thumbs pointed at chest]  Much more to come shortly, but I have some work to do.

Silly Geese

We are hoping the Court will make a decision on our article 78 petition in the next 60 to 90 days.  It's really hard to predict as the lead time varies from judge to judge, depending on case-load and other factors.

There are several other things we can discuss to pass the time such as the State Land Corp. rezone, the Costco site and the "Super" Walmart.  There will be a lot on that in the near future.  In the meantime, enjoy this video of baby geese walking down Mohegan Ave.  I'm going to use this post to propose the speed bumps that near the intersection of Scofield Road and Mohegan Ave be extended all the way up Mohegan to Sagamore Trail.  People actually walk on this sidewalk-less street while some people drive at break-neck speeds.  The speed bumps are very effective, in my personal experience.

Quick Update

Facebook page is rolling out, slowly.  Please like us.  We'll like you back; promise.  Twitter feed to follow soon.

Quick Update

Things will get a bit more lively on the site  soon.  The lawsuit is coming to a conclusion.  It'll still be a few months before anything is final.  I'm currently fending of a cross-motion to dismiss.  Hiiiiiiya!

I recently saw Laurence Dalfino, architect for my neighbor.  We were both attending a continuing education class on New York City Energy Code.  13 credits--that's good. It was actually held at my Alma mater, The Cooper Union.  Abraham Lincoln once delivered a speech in the same  room we had class; that speech basically secured his nomination.  I actually see Larry down at the DOB a lot, he actually has an office on 5th Avenue in the City.  Small world.  Small world.

Like Watching Paint Dry

The new return date on the article 78 petition will be pushed out a bit past 3/6/2012; at the end of the day, our legal system takes time to navigate.  Initially, and naively, I was expecting this action to come to a conclusion in a quick dramatic fashion.  That is not going to happen.  It will happen in a fair and just manner though.  I'm sure of it.

So, in the meantime, I leave you with this: the deed and the restrictions attached to the wetland parking lot.

Background: the two lots across Sagamore Ave. from Faith Bible Church used as parking were transferred to the Lakeland Jewish Center from Shrub Oak Lake Estates [an adjacent home owners association] to use for 6 parking spaces.  Shrub Oak Lake Estates (SOLE)  transferred title to the Lakeland Jewish Center in 1969 and it included six (6) legally binding terms and conditions.

It's a bit hard to read, let me enlarge that for you.

Still having trouble reading it? Here's a transcription of the six (6) terms and conditions of the wetland deed that Faith Bible Church is legally required to observe.  

1. Approval of the Supreme Court of Westchester County to the conveyance.

2.  That the Grantee [Lakeland Jewish Center--now Faith Bible Church] shall develop, grade gravel and maintain the subject parcel as and for an automobile parking area.
 Setting aside the fact that the wetland lot is now paved, they comply with that term.
3. The Grantor [Shrub Oak Lake Estates] hereby reserves a permanent easement on behalf of its membership to use the subject parcel at all times for parking purposes at no cost to the Grantor [SOLE] or any of its individual members of the Grantor and the Grantee [Faith Bible Church].
That speaks for itself [emphasis mine].
4. That the subject parcel be permanently posted by the Grantee to indicate it as private property for the exclusive use of the members of the Grantor and the Grantee.
I like how attorneys use such crisp, clear language.
5. In the event the Grantee shall abandon the subject parcel and not use the same for parking purposes or if the Grantee shall use the subject parcel for any purpose other than parking, then the Grantor its successors, then the Grantor its successors and/or assigns.
No can argue FBC does not comply with that condition.
 [CLICK ON IMAGE BELOW TO MAKE BIG]

6. That the Grantee shall not in any way encumber the subject parcel by mortgage, lien or easement, but shall always maintain clear and unencumbered title to the subject parcel excepting the easement herein reserved to the Grantor, and in the event of a breach thereof, the Grantor shall have the right of re-entry and the fee shall revert forthwith to the Grantor, and in the event a breach thereof, the Grantor, its successors and/or assigns.
Let's all marinate on that while the paint dries.

Someone's Not Truthin'

Someone's not being honest with themselves, their community, the Mohegan Lake residential community and the Yorktown government.

Today, Sunday, February 26th, 2012, Faith Bible Church parked 88 cars to support an average occupant load; an average load, per pastor Zottolli's Planning Board application is about 150 to 160 people.

The new building that would take the place of two single family homes and the very small church that allows 100 occupants 3 days per year would allow for 344 people on the second floor alone. The church's architect, Larry Dalfino, has made up a code section about "non-simultaneous occupancy" claiming the 1st floor would never be occupied if the 2nd floor was being used. That's not only a lie, but also completely unenforceable.

Read the deed that ZBA chairman Gregg Bucci never took the time to read, here.

Let's set that falsehood aside. Let's pretend that the church is legally allowed to occupy the premises with "150-160 people" and park 88 cars on site to get those people there [the church is actually only allowed 100 people 3 days a year, for 3 hours and can only legally park 23 cars on site]. Let's then pretend the town approved "344" people to occupy the new building. How many cars would they have to park to support that occupant load? If it takes 88 parking spaces to allow 160 people on the site, how many spaces would be required to support 344 people? This is middle school math, but I'm going to give away a $40 gift certificate to The Winery At St. George for the first person to correctly figure out the number of parking spaces required to support 344 people (based on the current ratio of 88 cars to 160 parishoners) and leave the answer in the comment section.

What's Happenin' Now

2/24/2012: tomorrow, FBC's attorney is due in court at 9:30 in the "forenoon" [that's fancy lawyer-speak for "morning"]. He's trying to insert himself into the case because he doesn't think the Yorktown's attorney will do a good enough job.

2/28/2012, I will receive the town's motion to dismiss. They will argue that FBC should have been party to my lawsuit. There's still a snowball's chance that happens. 3/6/2012: Assuming I'm not thrown out of court for notifying FBC, I will have served my response to the town's motion to dismiss and reply to my petition to the court. I get the feeling it's going to be summer--at the earliest--before we have resolution. In the meantime, please enjoy this TV theme song instrumental. What'sHappenin' Now!! Oh no I didn't.

What Does It All Mean?

I agreed to a conditional adjournment with Jeanneatte Koster (the Yorktown attorney) yesterday.  Initially I had opposed such a move.  My reasoning was that since the Zoning Board had deviated so radically from their normal procedure when certifying variance approvals, why would I agree to give them more time to respond to my petition.  Whereas a normal zoning variance gets recorded with the town clerk 30 days or more past the zoning board publicly votes on an application, the variances for FBC were recorded in 4 days (12/8/11-12/12/11).  Some of the variances they voted on last November still haven't even been certified!  Because there was no other application which the ZBA certified that quickly in all of 2011 (nothing even came close), it put me at a great disadvantage.  Anyhoo, out of the kindness of my heart, I've pushed out the return date to 3/6/2012.  If the ZBA weren't totally unaccountable for their actions (Jeannette has to defend them), I wouldn't have budged.

Note the only italicized words in her letter are "pro se."  That's code to the judge that she thinks I'm cray-cray

But wait, there's more.  Al Capellini, esq, on behalf of FBC, has filed a motion to intervene.  He is sad he wasn't invited to the party and wants to get served too.  He notes in his letter to the Honorable Judge Barbara Zambelli that he has directed the town to it is his understanding that..." Yorktown will move to dismiss my suit on grounds that I didn't serve the applicant, FBC.  In the same breath, he files a formal reply to my petition in Westchester County supreme court.

What does it all mean?

It means that Al Capellini will now get to serve as de facto council for Yorktown (read: I'm going to get tag-teamed by two attorneys now).  This, of course, presumes the judge doesn't throw me out of court for not serving the landowner (I checked my magic 8 ball and the outlook is good that I won't).

It's important to understand that I'm challenging the ZBA's, not FBC's, decision making process and the action of approving MAJOR zoning variances; I did not challenge 3 of the original five variances because they were reasonable.  I'm claiming that their action of approving the variances was  arbitrary and will be detrimental to our small residential community.  I've made the facts of this controversial public application and my article 78 petition so widely available to the public, he's already finished his reply to paperwork he's not yet been served. Ha!
What does it all mean?

Word of the Day: Impleader

Happy Valentine's Day!  As you're well aware, today is the return date on my article 78 petition.  There's a few happenings going on we'll talk about later, but in the mean time, please take the time to research today's word of the day.

Impleader, defined.

On A Personal Note

This whole "suing the town" thing has been very stressful and taken quite a toll on me.  

My late mother taught me how to knit.  She was a nurse practitioner and swore that knitting released serotonin. 

I believe that.  Knitting this hat for my nephew has been incredibly therapeutic. I started on Sunday afternoon and have been knitting up a storm on my 50+ minute train ride in to the city.  I must look a bit curious knitting in a suit, but I've not been taunted once--yet.

Knitting: It's Like Riding A Bike; you never forget how to do it.

Revisiting The Scene

Do you guys remember that time I went to the Yorktown Zoning Board of Appeals meeting and ended up correcting the "special" counsel to the ZBA on the ins-n-outs of uses permitted only by special permit in an R1-10 zoning district?  

Take note at 1 minute, 24 seconds into this video.  Please note whom the zoning board chairman, Mr. Gregg Bucci, asks what section of the code special use permits are outlined in [answer: section 300-30] when he gets frustrated with the facts I am presenting him; that would be Mr. Capellini. This, immediately after I told Mr. Bucci he was wrong and both he and the special counselor emphatically told me I had no idea what I was talking about.  I was the only one in the room with the current code.  Mr. Capellini knows what I'm talking about, right Al? 
 
Considering the actual zoning chairman, Mr. Gordon Fine, cohabitates the same office with Mr. Capellini, it certainly raises an eyebrow.  Also how Mr. Bucci refers to Mr. Capellini as "Al" and when he isn't sure he asks him for guidance shows how comfortable their relationship is.  Of note: Messieurs Capellini, Fine and Bucci are all attorneys.  Global conspiracy? Doubtful.  Makes you wonder?  Sure does.

The Parking Problem, Explained

The applicant is only providing 63 standard parking spaces.  Per code (4 people per space x 63 = 252 people).  The town allows some "stacking" [read: double/triple/quadruple parking within the proposed three parking lots] and the applicant claims they will provide 86 total spaces.  The applicant proposes 344 people to occupy the second floor; the also put forth the absurd proposition that the entire first floor will never be occupied if the 2nd floor is occupied.  Not only is that completely un-enforcable (the town won't enforce the code on the two homes the church illegally converted to suit their needs), but there is no code citation they can make to justify such a crazy deviation from established zoning law.

By all accounts, Site Design Consultants of Yorktown is a reputable engineering firm.  Their professional engineers represent many of the high profile developers in Yorktown.  Last year they did a six (6) week parking study of Faith Bible Church (images above and below) which was submitted to the zoning board attached to a sworn affidavit from pastor Zotolli.  What they found is that the special use the applicant is proposing can not provide the minimum code requirement (a ratio of 4 people to 1 parking space).  The best ratio the applicant provided during the study was 2.7 people per parking space; it fluctuated between 2.3 to 2.7 people per parking space.  At 2.7 people per parking space (what they can actually provide on their best day) only supports an occupant load of 170 people (63 spaces x 2.7 people per space).  Conveniently, that's the occupant load they have already illegally increased to.  That would seem to be the biggest church that could be supported by the parking limitations, if you are a fan of the truth.

Please note that the town only approved 100 occupants to be at this church "3 days a year, for 3 hours."  Considering how the church actually occupis the site, they are not only a danger to themselves (the town has no idea if 242 people can safely egress from the sanctuary), but to the small residential home owners associations that surround the church.  I pray nothing happens as the result of lax enforcement on the part of Yorktown!

I'm completely setting aside the fact--the cold hard fact--that the church has terms and conditions on the wetland parking lot that allows Shrub Oak Lake Estates (a neighboring home owners association) member the right to park "at all times" and "at no cost."  In fact the church is in violation of the terms and conditions of their deed by not posting that it is private parking for SOLE and FBC members.  All these inconvenient facts.


No one is saying the church can't be expanded, just that it has to be in keeping with the character of the neighborhood and have sufficient parking.  Yorktown is turning a blind eye to the fact that the church already expanded without any permits or approvals.  Now the church is claiming hardship.  The houses they illegally converted don't accommodate the growing congregation; ha!

If you ever decide to illegally convert your house to a use requiring a "special permit," you should shouldn't hesitate.  Do whatever you want without permits or approvals because Yorktown is either unwilling or unable to stop you,  as evidenced by the blind eye they turn to the applicants illegal conversions.  It should be noted that the applicant only recently (circa 2005, when they acquired title) illegally converted the red house on Sagamore  Trail.  Up until that act, it had been occupied (legally) as a single family home. 

Have You Picked Up the Westchester Guardian This Week?

If not, you should.

An Interesting Article

The Yonkers Tribune has an interesting article about my neighbor's proposed development.  You can read it here.

The Zoning Board of Appeals Got Served

It's official.  I confirmed it with the Westchester County Sheriff's office.  Phew, at least I won't get thrown out for a defective service.

You Got F'd in the A
Get More: SOUTH
PARKmore...

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

Gentle Reader,

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

To THE SUPREME COURT OF THE STATE OF NEW YORK FOR

COUNTY:

The petition of, EVAN DANIEL BRAY complaining of the Respondent,TOWN OF YORKTOWN ZONING BOARD OF APPEALS (ZBA) respectfully alleges:

1. Petitioner EVAN DANIEL BRAY owns and lives in a single family home with his wife, three daughters (all 5 years old or younger) at 3496 Mohegan Avenue, Mohegan Lake, New York 10547.  Petitioner has an architecture degree from The Cooper Union for the Advancement of Science and Art and has worked for over 10 years as a building code and zoning consultant.  Petitioner identified himself as such to the respondent at the public hearings.

2. Respondent TOWN OF YORKTOWN ZONING BOARD OF APPEALS  “acts as an interpreter of the town code and makes judgments on its meaning on specific cases, grants variances upon appeal, and authorizes the issuance of permits for special uses in districts in which such uses are permitted,” as the boards powers and duties are summarized on the Town of Yorktown website.  Refer to section 300-201 of Yorktown zoning ordinances, powers and duties of the board of appeals.

Too Legit To Quit

Wow. So, I formally filed my first lawsuit today. It's against the Town of Yorktown Zoning Board of Appeals and it challenges 3 of the 4 variances the ZBA approved for Faith Bible Church. I still have to serve the board; well, technically, because I'm party to the proceeding, I can't do it myself. It looks like I'm going to have to have my wife do it as she's the only other one in the house over 18 not party to the action (I'm accepting volunteers in the comment section, below). Once the zoning board of appeals has been formally served, I'll put the whole thing up on this website; it wouldn't be fair to give them a head-start, right? In other news, I wanted to mention that I have accepted an offer to opine on this subject for a local website. More on that very soon.

Anticipaton

This Is A Public. Service. Announcement. (with guitar)

If a resident of Yorktown, NY, directed their attention to the Town of Yorktown governmental    website, and specifically looked at the department of Building page, they would see this:


If said resident then scrolled down that page, they would see the following description of the powers and duties of the ZBA.


"The Zoning Board of Appeals acts as an interpreter of the town code and makes judgments on its meaning on specific cases, grants variances upon appeal, and authorizes the issuance of permits for special uses in districts in which such uses are permitted."