Today Is The Day

I'm done with legal papers; adversaries will be served and my Reply Brief filed with the court, and if all goes well, I end up in oral arguments this summer after they rule on the motion to enlarge the scope of the record because the town conveniently curated a lot of the meat and potatoes out of the certified record.  A decision on a motion normally takes at least 3 months.  Not sure how quickly they calendar arguments, should the court see merit in my arguments.  They don't have to hear it and could decide on papers alone.

This was so hard and I'm so scared.  There's a lot on the line.  I've hung in there though.  Scrappy to say the least.  Glad to have the full support and backing of The Ohio State Marching Band in this matter.  Still not sure how they got involved the Save Mohegan Lake cause, but we take all comers here.

Take it away:

Update On Zoning Board/Faith Bible Lawsuit

So, as it were, I'm in the highest court in the land (of New York State).  Thankfully it's located in Brooklyn Heights, about 15 minutes from my office.  It's official title is:

The courthouse is such a stately building on a movie-set block of brownstones.  So I'm hanging out in the attorney's lounge, pictured below.  That's really about it.  I don't have much more to this story.

How cool are all those pictures of judges?  The clock being off center bothers me.  Or does it? Actually, I'm pretty cool with all the asymmetry in this photo.

Why am I telling you this?  Because it's after midnight and I just got through another day of busting my ass to prove to the Court that what's right is right, and that I'm right.  Will share my reply brief with you after it's complete.  Here's my brief, in the meantime. 

Oh, and for all you pro se petitioner's out there.  If you ever make it this far, and your adversaries reply to your brief by mail at the last minute--the normal 10 day period for you to serve a reply brief is extended to 15 days.  Thank the lord, because I really needed the additional time.  Since it lands on a Saturday I actually get 2 extra days and can serve and file on the 21st.  And that, Mohegan Lake, is today's lesson.

Amended Lawsuit Against My Zoning Board of Appeals

In its entirety:

AMENDED ARTICLE 78 PETITION

SUPREME COURT OF THE STATE OF NEW YORK

COUNTY OF WESTCHESTER

----------------------------------------------------X

In the Matter of the Application of          :

                                                              :

EVAN DANIEL BRAY,                            :

Petitioner,                                               :

                                           :                   AMENDED VERIFIED PETITION

- against -                                               :

                                              :                            Index No. 1049/14

TOWN OF YORKTOWN                        :

ZONING BOARD OF APPEALS,           :

-and-                                                      :

TOWN OF YORKTOWN                        :

PLANNING BOARD,                              :

-and-                            :

TOWN OF YORKTOWN                        :

TOWN BOARD,                            :

-and-                              :

FAITH BIBLE CHURCH,                        :

-and-                             :

HUDSON VALLEY TEACHERS            :

FEDERAL CREDIT UNION                   :                                     :

Respondents,                                         :

                                                              :

For a Judgment Pursuant to Article 78  :

of the Civil Practice Law and Rules       :

----------------------------------------------------X

To THE SUPREME COURT OF THE STATE OF N

Faith Bible Church Planning Hearing Tomorrow, 3/10/14

We here at SaveMoheganLake.com would like you to know that the subject Yorktown Planning Board application that we've been following will have a public hearing held around 7ish at town hall TOMORROW.  Please don't bother to attend the hearing on 3/10/14.  If you can't watch it on TV when it airs live on the municipal channel, then DVR it.  It's gonna be a short discussion because the application has a glaring defect all of the highfalutin lawyers representing the church and the town missed (oR willfully overlooked). [editor's note: If I were the church, I would sue my design and legal team for sucking at their jobs incompetence.]

Anyhoo, it should be worthy of the space on your DVR and will likely be adjourned to a later date.  Your written and oral support of the opposition to the proposed out-sized development is on the record and to repeat it would be repetitive and redundant and repetitive.   

I'm serving my reply to the Church's attorney's merit-based response to my article 78 petition.  Can you believe that Yorktown failed to serve a timely reply and was refused by the pro se petitioner [bat-shit crazy man off the street who has no law degree but can meet a deadline?].  It was received 4 days late and about $3.50 short.  Your tax dollars at work, people.

In summary, watch the Planning Board meeting tomorrow on TV, from the comfort of your couch.  I'll take this one for the team.

It's On! (Again)

Today I served an article 78 petition challenging the Zoning Board's final determination.  I named The Town of Yorktown Zoning Board of Appeals, Planning Board, Town Board, Faith Bible Church, and the Hudson Valley Teachers Federal Credit Union.  FBC is on the working session agenda for Monday, January 13th, 2014.  We should get a good indication of when the public hearing will be when they put up the requisite Planning Board Application signage on the all five properties (they only have two up now--so keep an eye out).

It's weird they are still pretending it's an addition, as opposed to a new development.  But this is Yorktown and they retained a great attorney, so it seems like it's anything goes.  By the way, if you live in Yorktown and own a home, it's also a church.  The Zoning Board, for the first time ever, ruled that a "place of religious worship is a residential use."  If you want a church at your house, you can have it.  It's as of right and you don't have to make application to add that use to your house.  Set up a 501(c)(3) and you don't even have to pay taxes anymore on you house/church.  It's a windfall--for us religious types.

So in summary, stayed tuned for many more juicy details, including the petition filed today and all the exhibits.  The Sheriff should be serving the papers to all parties by Monday or Tuesday next week.

Zoning Board of Appeals Hearing 12/12/2013

It's important to note that the ZBA will likely be taking action on the Faith Bible application this week.  The application has been closed for about 3 months or so, but still no decision after two meetings.  It will be exciting to hear from former building inspector and current ZBA member, William Gregory. 

Expect a quick turnaround approved zoning variances Thursday and a Planning Board meeting on December 23rd (I know, right, shouldn't they postpone that meeting in observance of the Christmas holiday?).

One reason it is believed that the application has been closed for so long with no decision (very rare)  is the applicant's grossly deficient SEQR application; a small sampling of our objections are at the bottom of this link.

Substantive Compliance
Aldrich v. Pattison 107 AD2d 258 (2d Dept 1985)
Where the question is the adequacy or content of the environmental review conducted, rather than whether the right steps were followed, agencies need to substantially comply with both the letter and spirit of the law. Where an agency has made a reasoned decision on a thorough record, the court will not substitute its judgment, but will allow the agency to exercise some discretion. See also Jackson v. UDC 67 NY2d 400 (1986).

Mmmmmm...uncoordinated review: so meaty. It looks like we may be blessed this year to have a long and spirited Christmas Eve-Eve in front of the Planning Board.

Moose Hit on The Taconic In Fahnestock

This site has been dormant for a few months. Glad to be back. Expect lots of news on several subjects--very soon. In the meantime, please enjoy this Journal News piece on the dead moose. Photo courtesy of the NYSDEC:

Faith Bible Zoning Board Public Hearing 8/8/13 @ 6:30pm

The meeting will be at town hall.  There's a lot of new information.  In fact 2 new variances were just discovered today that will require the application to be amended.  My goodness, if I were the church, I would sue the crap out of my design team for missing so many obvious variance requirements.

Be Afraid. Be Very Afraid.

If you're not up to speed on Mohegan Lake's residential community's struggle to reign in the massive new development proposed for Faith Bible Church, you can get some background information here. 

We're not against the church and don't oppose the use, it's a practical opposition to the site's deficiencies relative to the proposed enlarged occupant load.  Specifically that they have already enlarged the church, illegally, and seem to have done so to the limits of the area they can adequately provide legal parking spaces for.

At the last public hearing in May for variances the church is seeking, I correctly noted that the building inspector had unequivocally noted that the two residences they church owns were converted to church use without approval or permit.  

After nearly 5 years the Faith Bible application has been before both the planning and zoning boards, the church and their attorney--Al Capellini--have never contested the documents in the planning and zoning files that clearly demonstrate that they have already enlarged the legal occupancy and parking exponentially.  The building inspector's memo in both board files correctly notes that the church has already enlarged "without approval or permit," which is a nice way of saying illegally.

But wait! Acting chairman of the zoning board Gregg Bucci (because the actual chairman of the board has to recuse himself because he has a "counsel relationship" with--wait for it...--Al Capellini) has an argument to make for the applicant.  Just because there is no "record" of an application, approval or permit for the change to church use and increase the parking load since 2005, when the applicant took title of the premises, that doesn't mean the records weren't lost or stolen or misplaced. 

Dear reader, the video below is not theater of the absurd.  This is our Zoning Board of Appeals in action.  According to Mr. Bucci's reasoning, your neighbor can legitimately--it would seem--claim that they didn't illegal convert or build the structure next to your house.  The problem is that the approval and permit was lost, or stolen, or misplaced.  The onus of proof of existing occupancy, use and parking conditions is not placed on the applicant; Yorktown places the onus on neighbors of the applicant to prove that Yorktown records are complete?  The landowner making application and the planning department, planning and zoning boards can just invent their own narrative--arbitrarily?!

Last note: at the end of the video, please note that I literally LOL at Mr. Bucci's assertion that perhaps they didn't do it illegally.  Perhaps I stole the records and perhaps there's no collective memory of any such conversion in the neighborhood and perhaps Yorktown governmental records.  Perhaps.

I encourage you to watch the whole hearing (a couple hours) on TV.  This link is the schedule and the ZBA hearing will be replayed until 8/8/13

Be afraid.

Simultaneous Ocupancy: "It's for a growth pattern."

There was a lot of new information at the Zoning Board of Appeals meeting for Faith Bible Church on 6/27.  There were some amazing revelations too.  For example: I'm not crazy.  I've been jumping up and down, screaming that it's incredibly wrong  for the Planning Board to consider the ENTIRE first floor of the new church as "non simultaneous occupancy."    It's literally a made up concept; they can't cite any reference to it in our code or zoning, yet the town has been entertaining it.

I recommend that you try and catch a rerun of the hearing.  It is repeated on channel 20 Cablevision until the next hearing on 8/8/13;  the video is clocked and the hearing runs approximately 8:15pm to 10:15pm (note: ZBA meetings are replayed at various times throughout the day, not just at that time).

To begin my commentary on the last zoning meeting meeting, I present to you a segment of reverend Zotolli explaining the occupancy of the proposed church.  He clearly states that the occupancy of the 2nd floor sanctuary, of up to 344 people, would be simultaneous with the 1st floor children's church program.  There's nothing wrong with that, except that for years they have been arguing, on signed and sealed documents, that the 1st and 2nd floor would be "non-simultaneous occupancy."



That's a big deal because it proves the applicant's willingness to bend the law and make false statements.  

The stated goal of the new development is enlargement.  The land simply can't sustain the parking required for the proposal.  For the record: Lakeland Jewish Center moved on and built nearby in a Commercial zone with tons of parking and a smaller occupant load than Faith Bible is proposing.  Just make it smaller if you want to use this site. Why not look at the 5 acres across from the winery; for sale, off route 6 and in a residential zone?

Unfortunately, things can never be that simple. 

ZBA Public Hearing for Faith Bible Church: Part 4

There will be Zoning Board of Appeals Public hearing in 2 days for the subject application; that's June 27th, 2013 at 6:30pm in the meeting room at Yorktown Town Hall.  You are advised to show up 15 minutes early, if you want to attend.  As always, if you can't make the meeting--you can watch it live on Cablevision channel 20..

Faith Bible Church Is Back At The Zoning Board 6/27/2013

I'm experiencing, first hand, Yorktown's building and zoning machine in action.  My neighbor is trying to parlay a very small house of worship and two legal single family homes (per building department and tax assessor records the houses were illegally converted) into a huge church.  I love the church and would love to see them upgrade their facilities, but we need to be realistic about the occupant and parking loads the site can support.
The church's attorney has opened their 4th Zoning Board of Appeals (ZBA) application which will be heard publicly on Thursday June 27th, 2013 at Town Hall at 6:30pm.  The Planning Board--who has been hearing the application for more than 4 years[!!!]--sent the applicant back to the ZBA at my prodding. The chronology of the 4 zoning variances breaks down as follows:

1. Application #1: Instead of notifying all of the "interested parties" to the planning board application, the applicant only notifies 2 homeowners of the  required zoning variances (6 households were notified of the planning app).  I showed up to the first ZBA hearing, raised numerous, valid and serious questions.  ZBA closed the hearing and approved the variances.  I advised the town attorney (representative of the board) that the ZBA should rescind the variance approvals for various reasons.  The ZBA rescinded their approval.
2. Application #2:  In spite of overwhelming public opposition (oral and written), and in light of the gross and factual parking deficiencies, the ZBA approved the zoning variances. They told me specifically that my concerns about parking would be addressed at the planning board.  As luck would have it, we're back at the zoning board to address--among other serious issues--PARKING!  Literally.  [note: I sued--pro se--and lost, not on merits, but because I didn't notice the church, even though I was challenging the ZBA's determination].
3. Application #3:  I notify the Planning Board that the applicant has overlooked two major variances regarding parking prohibitions in front yards in residential districts (makes sense), and a miscalculated the required front yard (honest oversights by the town's most prominent attorney and engineer--I'm sure). The Planning Board correctly directs the applicant to notify 2 adjacent home owners associations, a park district and the Mohegan Lake Improvement District who were not party to the original planning application in 2009.   The applicant hastily makes application to get on the ZBA agenda for April 2013 (they only meet once a month).  Applicant withdraws the application, voluntarily because there are still glaring deficiencies.
4. Application #4:   I won't start picking apart the wild, siding interpretations the applicant's attorney is trying to sell the ZBA in this space; I'll save that for the public hearing, 6/27/13.

I made an unsucessful bid to garner the endorsement of the Democratic party for 1 of the 2 open town board seats in the upcoming election based on my love of Yorktown, education and career. 
My day job is consulting on zoning and building code matters for the City's most prominent building owners, engineers and architects.  If I'm having a hard time understanding and navigating Yorktown's planning, zoning and building departments, then I feel for the average homeowner.  It shouldn't be this hard.  Please keep me in mind if you want substantive change in these areas of government. 
Free zoning and building code consultations at YorktownCode@gmail.com

2 Things of Note

I finally lawyered up and actually had dinner with my attorney tonight.  We went to Thyme down on Route 202.   It was a pleasant dinner with good service at a reasonable price for the quality.  I was pleasantly surprised by a good live music act throughout dinner.  Two thumbs up from the Bray house.

Said attorney was kind enough to lend me these New York Zoning Law and Practice books, all 4 volumes.  Everybody has to have a hobby, right? 

Seems like Faith Bible is not on the Planning Board agenda for Monday (they could still sneak it in though unadvertised--not unheard of in these parts).  Don't bother showing up to the zoning board working session on Thursday; I'll provide a detailed report.

 

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. 

A Little Backround On The Issue At Hand

Today I [technically not "I"] served an article 78 petition in New York State Supreme Court against the Yorktown Zoning Board of Appeals (ZBA); I am the petitioner.  I'm doing it "pro se (pro-say)," meaning without an attorney.  I'm going to document it for you, gentle reader, so that if--in the future--you find yourself in similar situation, you can save yourself a bit of time researching what recourse you may have if you disagree with a decision the ZBA makes.  This assumes you can't afford a preeminent attorney to represent you in the matter and have to do the leg work yourself.  Harrumph.  

The whole process is a bit opaque, but I'll do my best to make it clear.  What is clear is that the odds are decidedly stacked against me.  However, I'd like to note that I was born and raised in south central Colorado; Colorado state law mandates all children born in the state become devout Broncos fans (that is an NFL team, for those not in-the-know).  Our current quarterback--Tim Tebow--has proven that even when people say you can't--when they say things like "Tim Tebow couldn't beat an egg with that arm," or  "you're screwed, you're not an attorney; you'll get thrown out of court on some dumb technicality before a judge ever hears it"--I say there might be hope.

Chairman Gregg Bucci Didn't Read The Deed For The Wetland Lots

A quick snippet from Yorktown Zoning Board of Appeals meeting minutes, June 2011.  

“Chairman Bucci told him [editors note: that would be me!] that if that is true, such uses are with the permission of the owner and that unless the parties using the applicants property have some sort of legal contractual arrangement or legal ability to claim some sort of ownership interest in that property, that’s done with the permission of the owner. It has nothing to do with whether the owner owns the property or makes arrangements to allow people to park there.”

 I'm a SOLE man.  More on that later.  

Merry Christmas. 

A Brief Intermission

I hope you are having a good holiday season.  News of the Yorktown Zoning Board of Appeals' approval of all of the zoning variances is disheartening, for sure.  However, make sure to check back in after all the holiday hectic-ness ends.  I promise you exciting new developments.  Not only will there likely be a planning board hearing or working session, but we may even see some litigation.

An Ethical Question

Below are two videos from the Yorktown Zoning Board of Appeals' hearing on 8/11/2011. The first one shows the developer's attorney, Mr. Capellini, presenting two zoning variance applications to the ZBA chairman, Mr. Feine.

At the 30 second mark of this video Mr. Capellini remarks that "Mr. Tripodi [another ZBA member]was doing a great job" on a previous hearing. Mr. Feine jokes he could leave; Mr. Capellini says he was only kidding and they continue. There is an interesting exchange at the 1:12 mark as well.



The second video shows Mr. Feine recuses himself for the FBC variance application because he "shares office space" with Mr. Capellini. Sequentially, the following clip occurred minutes before the first one. It is strange that Mr. Feine would only recuse himself for the the FBC application, no?

Points of interest: 16 seconds in, after the recusal, one member says "follow the leader" (nearly inaudible, turn up your speakers). At 20 seconds in, another board member chimes in "coward." It's unclear why Mr. Feine was not recused for the other applications where Mr. Capellini represents the applicant.

"Character of The Neighborhood"

Below, please see an image from September 18th, 2011. You are looking at the wetland parking lot plus an additional lot that was never approved for parking. There were 83 cars parked on the site that day. (click on the image to enlarge)



Both lots have been paved without approval or permit. Now the developer is trying to get credit for correcting this illegal development all within a State and Town required buffer zone. Is this "the character" of our small, unique residential community?

PLEASE NOTE THAT YOKTOWN HAS NEVER APPROVED MORE THAN SIX (6) CARS TO BE PARKED ON THE WETLANDS. You can view those approval documents, by clicking on these big orange letters.