1990-01-19
.,
t ·
Ill'
Attorneys
Anthony L. pagones
Francois R. Cross
Jennifer L. Van Tuyl
Eugene J. Rizzo
Lisa E. Rubenstein
James P. Kelley'
Niki Pagones
Counsel
John J. Mulvey
Paralegals
Jill Gado
Anne P. Forshey
Terri Thorley
Janice M. Miceli
'ALSO ADMITTED
IN MINNESOTA
PAGONES. CROSS.
VAN TUYL & RIZZO. Re.
A TTOANEYS AT LAW
2 SUMMIT COURT, FISHKILL, NEW YORK 12524 PHONE: (914) 897-4100 FAX: (914) 897-4171
January 19, 1990
RECEIVED
JAN 2 2 1990
Supervisor and Town Board
Town of Wappinger
20 Middlebush Road
Wappingers Falls, NY 12590
_.'INE H. SNOWO"~
T,.,.: "
Dear Supervisor and Board Members:
We are writing on behalf of Ketchamtown Development Corp. to urge
the Town Board to formally take action to clarify the status of the
zoning in the Town of Wappinger.
We respectfully request the Board do the following:
(1) Take formal action to advise taxpayers that the Zoning
Ordinance was not adopted because a majority plus one was
required pursuant to General Municipal Law Section 239-m.
(2) If the Board determines the Ordinance was adopted, we
urge a repeal based on the defects in the environmental
analysis of the proposal.
This letter will discuss each issue separately.
Adoption of the Ordinance
We submit that the Ordinance was not adopted because the vote to
approve did not override the County Department's recommendation,
as provided in General Municipal Law Section 239-m.
General Municipal Law Section 239-m(1) paragraph 3 states:
If such planning agency disapproves the proposal, or
recommends modification thereof, the municipal agency having
jurisdiction shall not act contrary to such disapproval or
recommendation except by a vote of majority plus one of all, the
members thereof and after the adoption of a resolution fully
setting forth the reasons for such contrary action.
We submit that the recommendation of the County in its December 8,
1989 letter was that the proposed zoning amendment not be adopted.
The specific language recommending against adoption can be founc;f
.....c_
PAGONES. CROSS.
VAN TUYL & RIzzo. Pc.
ATTORNEYS AT LAW
Page 2
on Page 5 of the letter (attached) in the section entitled
II Recommendations II. The letter states:
In view of the findings above, the Dutchess County Department
of Planning recommends that the proposed amendments as
submitted not be adopted until such time as the following
modifications are made and subjected to the provisions of
General Municipal Law:
We submit that the only possible interpretation of this paragraph is
that the County recommended against the adoption of the entire
Zoning Ordinance. As such the Ordinance could not be adopted
without a vote of a majority plus one.
News reports indicate that the Town Board may have interpreted the
County letter as making nine specific recommendations only.
Apparently the Town Board interpreted General Municipal Law
Section 239-m to provide that the specific recommendations could be
the subject of a separate vote from a vote on the Ordinance.
We submit that based on the plain language of General Municipal Law
Section 239-m, the only relevant vote under this statute is the vote
on adoption of the Ordinance. The County did not make
recommendations that could be overridden by a majority plus one
vote. Thus, the Town Board had a majority plus one vote on
responses to the County's list of concerns but there was not a
supermajority approval of the Ordinance. The County Planning
Department specifically recommended IIthat the proposed amendments
as submitted not be adopted II . Without a supermajority vote, the
Town Board was without authority under state law to act contrary to
the County Planning Department's recommendation.
Defects in Adoption
Even if the Board determines that the Ordinance was adopted, we
submit that the defects in the adoption mandate a repeal because 'the
process will not withstand a legal challenge. S.E.Q.R.'s procedural
and substantive requirements were not followed:
(1 l Failure to Prepare an Environmental Assessment Form
The adoption of the new zoning is a Type I action which is
an action that is more likely to require the preparation of
an Envi ronmental Impact Statement than an Unlisted action
[S.E.Q.R. Section 617.12(all. In this case the Town
Board failed to prepare an Environmental Assessment Form
to allow for an analysis of the impacts to determine if an
Environmental Impact Statement was required. The
document purporting to replace the Environmental
Assessment Form failed to include sufficient information to
....
PAGONES, CROSS,
VAN TUYL & RIZZO, P.G
ATTORNEYS AT LAW
Page 3
describe the action and its potential impacts [See S. E. Q. R.
Section 617.2 (m)].
(2) Failure To Make A Proper Negative Declaration
The Town Board previously declared its intention to
prepare a Negative Declaration prior to adoption of the
new Zoning Ordinance. Repeated calls to the Town Clerk
indicate that no Negative Declaration was prepared and
that absolutely no analysis exists of the deliberation
leading to a Negative Declaration. The regulations clearly
establish that a Negative Declaration must be prepared and
this Negative Declaration must establish that the Board has
taken a "hard look" at the proposal. (See, H.O.M.E.S.
v. Urban Devel. Corp., 69 AD2d 222 [4th Dept. 1979J).
(3) Literal Compliance With S.E.Q.R. Is Required
The courts require literal compliance with S.E.Q.R.'s
mandates. (Matter of R e Town/Kin Civic Association ,v.
The Town of ~e, 82 D2d 474 1981 ap dis 56 N 2
985) . This ana ysis cannot be done after the fact and the
failure to conduct this analysis makes the entire process
defective. The remedy fashioned by the courts to rectify
this kind of defective procedure is to nullify any approvals
and require the offending agency to review the proposed
action in accordance with the regulations. We urge this
Town Board to act of its own accord to properly review
any new zoning proposals.
CONCLUSION
As landowners in the community, we are very concerned about the
confusion that exists over the status of the Ordinance and the
defective procedures followed throughout the process. We submit
that a new proposal that is the subject of a proper S. E. Q. R. review
can better serve the needs of the entire Town. We would be happy
to discuss this matter in more detail and we look forward to a
prompt resolution of this matter.
Very truly yours,
PAGONES, CROSS, VAN TUYL
& RIZZO, P.C.
Lisa E. Rubenstein
LER:jm
Enclosure
cc : AI Roberts, Esq.
Steve Domber
Michael Domber
Ray Croniser
Richard Chazen
OErAAIMENT or PLANNING
~
THE COUNTY OF DUTCHESS
LUCILLE P. PATTISON. COUNTY EXECUTIVE
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21 HII... SI
POUf".u_r.rp\lr, NY 12&0'
III [rllflHl 19W 'll~ 96111
til:Ct:IVEU
DEe 11 1989
~LAINE H. SNOWDEN
Town Clerk
ROGEA P AKELEY, AICP
CO"M~StOH(.
EAIC W GILLEAT, AICP
ASSlSIAN' COMMISSION(R
DEe 1 1 ,~Q
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December 8, 1989
To: Town Board, Town of Wappinger
Re: Referral: 89-667, Proposed Amendments to the Town of
Wappinger Zoning Ordinance (Revision
dated November 2, 1989)
The Dutchess County Department of Planning has reviewed the
action cited above within the framework established under General
Municipal Law (Article 12B, sections 239-1 and 239-m). That
~nview consisted of an extensive analysis of the recently adopted
Town Comprehensive Plan, land use policies set down in the
county's comprehensive plan, previous zoning proposals with
county responses and the current amendments. Upon completion of
this review, the Department finds:
Re: Commercial Districts
(1) Zoning referral 89-206 dated May 10, 1989 and 89-575
dated october 23, 1989 noted that the proposed zoning
pattern along the Route 9 corridor diverged
significantly from the land use policies articulated
in the adopted Town of Wappinger Comprehensive Plan.
That plan recommended that commercial uses be strictly
limited along Route 9 frontage in an effort to match
land use intensity to the highway's carrying capacity.
Further, the plan seeks to minimize the degradation of
the corridorls visual environment.
In order to implement these recommendations, the plan
called for reduction in commercial zoning and
infilling the current land use pattern with office
parks and offices. The present proposals virtually
eliminates the Office Zone from the Route 9 corridor.
It is replaced by the Highway Business One
classification which permits a wide range of retail
commercial uses.
In essence, the roadway is "strip zoned" for
commercial purposes, a practice which is contrary to
accepted community and highway planning practice.
Further, this zoning pattern is contrary to the
policies outlined in the county plan and the town's
recently adopted master plan.
It would also appear that a portion of one of the
town's most significant natural resources, the Greenfly
Swamp, has been partially zoned for highway commercial
uses. The commitment of such a unique environmental
resource to commercial uses is contrary to the town
plan and good land use management policies and sets a
precedent that endangers all of the town's natural
resources.
(2) Contrary to the plan's recommendations and the
department's previous referral response~ the proposed
zoning maintains a lengthy strip of General Business
uses along the south side of New Hackensack Road
extending from the intersection of All Angels Road to
the Cross Court Tennis Club. Much of this area is
characterized by floodprone and steep slope areas that
should not be designated for intensive commercial uses.
The town plan recommended that commercial uses be
limited to a strip generally east of the Dutchess
County Airport Terminal. Further, it recommends that a
Special Conservation Commercial Zone be used to
preserve environmental values which accommodating in
-Commercial growth.
(3) The plan limits Hamlet Business uses to the west side
of Route 82 in Schwartoutville. The proposed zoning
designates both sides of Route 82 for these uses
including a large portion of the floodplain of the
Sprout Creek. This proposal is unwise from a traffic
safety as well as environmental perspective in that it
would encourage dangerous turning movements along Route
82 and, notwithstanding provisions of the present
zoning ordinance, will encourage filling of the
floodplain - a practice which results in increased
flooding in adjacent lands.
Re: Myers Corners pun
(1) The current zoning proposal calls for eliminating the
PUD area from Myers Corners Road and replacing it with
an R-40 zone. We are concerned that the town's
opportunity to enhance Myers Corners' role in the
community will be lost if the town fails to place some
special designation on ~his site.
(2) As shown in the town's new Comprehensive Plan, the
growth management committee developed a carefully
thought-out plan for Myers Corners, to manage and
promote the area as a community center for eastern
Wappinger, with a mixture of recreation, residential,
commercial, office, institutional, and open space uses.
To link together the disconnected land use pattern that
exists now, the plan envisioned using the remaining
undeveloped parcels to provide attractive small-scale~
. .
commercial uses on the north side of Myers Corners Road
east of the IBM facility. These would serve the
existing employment centers and residential
subdivisions as well as the future residents of
Cranberry Hills. This site was to be carefully
designed with outdoor plazas, small-scale shops,
harmonious architecture, extensive landscaping, and
connections with public walkways to nearby homes,
offices, and schools.
(3) What is necessary to implement the Myers Corners plan
goes beyond traditional zoning. Design standards
should be put in place, and creative developers with
high standards and a willingness to work toward the
community's long-term goals should be sought. However,
the first step is choosing an appropriate zoning
designation. Designating the proposed mixed use area
R-40 will invite unimaginative development inconsistent
with the town's goals. Therefore, the town should
develop design standards for the mixed use site and,
for now, ret~in the pun or similar performance zoning
designation to help ensure that it will have an
opportunity to use them.
Re: General Comments and Environmental Features
(1) Several large regulated wetland areas are proposed to
be included in zones which do not provide for
conservation of these resources. These areas include
portions of Greenfly Swamp on the west side of Route 9
approximately a mile north of Fishkill and the area
south of MacFarlane Road near its intersection with Old
Route 9. Neither of these areas are recommended for
intensive use in the Town Plan.
(2) No statements of intent have been included as introductions
to each of the proposed districts. Such statement aids in
the understanding of the regulations, simplify administration
and can tie the Town Plan into the zoning ordinance.
Re: Zoning Text
\
(1) New car dealerships continue as a special permit use
within the Neighborhood Business District (Section
422.1). Such uses are not appropriate in neighborhood
centers and should be encouraged only in Highway
Business areas. If current provisions are designed to
accommodate a particular land use problem that already
exists in the town, a more appropriate response from
the community planning point of view would be to make
the existing use non-conforming and strengthen the
creation of true neighborhood centers.
(2) section 422.3 (Highway Business Two District) and
particularly item (8) provides for a range of retail
and personnel service uses that belong in neighborhood
and community centers. Inclusion of the uses in the
Highway business zone will only detract from the goal
of establishing strong neighborhood and community
~enters, reduce the viability of the Neighborhood
Business zone, reduce the land available for needed and
appropriate highway business uses, and contribute to
the intensification of land use particularly in the
Route 9 corridor where HB 2 zoned land is prevalent.
In this latter case, this intensification can only
occur at the expense of highway capacity, safety and
community goals.
The list ~f permitted and special permit uses within
the Highway Business One (formerly the Office District)
includes numerous retail, service and tourist/business
service uses. The inclusions of these uses along with
the zones' pattern of use in the Route 9 corridor is
inconsistent with county planning policies and the goals
of the town plan. Further, it will significantly contribute
to the intensification of land use in the Route 9 corridor
with implications that have already been discussed.
(6) One option for providing affordable housing options is
the conversion of large, usually older, homes into two
or more dwelling units. Not only is this a method for
creating affordable housing, it can also provide income
for owner-occupants that improves their ability to own
a home and can result in visual improvements for older
housing stock. The current provisions, outlined in
section 446.701, are unchanged from those received
earlier this year. They continue to be very
restrictive.
They require a minimum lot size of 40,000 square feet.
In addition, the maximum density of two units per acre
and minimum size of 800 square feet will unduly limit
the number of units. Very large houses may be able to
accommodate four or more units, and it should be
considered that a single person can live very
comfortably in 60@ square feet. Furthermore, the
restriction of this technique to houses built prior to
1962 is also unnecessarily limiting.
(7) Section 446.805 regulating temporary housing units
(ECHO units) is an important provision that will
contribute to meeting the unique housing needs of the
elderly. The section should be strengthened to include
a statement designating the owner of the principal unit
as the permit holder, a description of the permitting
process and a description of the 'process required to
revoke a permit.
. ,
. "
Re':' Affordable Housing Options
The current proposal is essentially unchanged from the
package of amendments offered in the spring of this year.
Its ordinance allows accessory apartments, ECHO units,
conversions, and the renting of rooms in single family
~e~idential zones. Planned Unit Developments and Designed
Multiple Use Developments are allowed in most areas of the
town. Mobile home parks are allowed subject to town Board
approval.
However, none of these options address the affordable
housing problem directly. Allowing one or two additional
units on a small percentage of lots in low density
residential areas, as permitted by some of these techniques,
is not going to have a major impact on the availability
of housing for most people. The large planned developments
provided for in the ordinance do not allow any significantly
higher densities than the underlying districts. There are
no areas designated for truly "high density" housing, such
as six to ten units per acre. The R-IO districts and the
areas zoned for multi-family housing allow only three to
five units per acre and are near their maximum capacity.
The Town Comprehensive Plan recommends an Affordable Housing
Floating Zone which would allow density bonuses on approved
sites if a certain percentage of units are permanently
restricted to affordable housing. As the plan states, this
would "help balance the effects of imposing a one- or
two-acre minimum lot size on most of the town." The plan
also recommends the use of the cluster development concept.
In addition, the densities allowed in the high density
districts are far below those possible with the provision of
central water and sewer. These areas could support eight or
ten units per acre. the provision of water and sewer
requires higher densities to avoid being cost-prohibitive.
One option might be to enhance the PUD provisions with a
stronger affordable housing objective and specific
performance criteria, such as a requirement that a
percentage of the units are affordable as defined by a local
ordinance.
(1) Replacement of significant areas of commercial zoning or
zones permitting commercial uses with. zones that are in
conformance with the policies of the town plan and county
planning policy.
.. ..: .
... -' \ ..
(2) Elimination of those areas of Highway Business zoning along
the west side of Route 9 that affect the Greenfly Swamp.
(3) A significant reduction in the length of the General
Business zone on the south side of New Hackensack Road near
its intersection with All Angels Road.
(4) Elimination of all Hamlet Business zoning east of Route 82
and within the floodplain of the Sprout Creek in the hamlet
of Schwartoutville.
(5) Removal of highway business uses such as automobile
dealerships from the Neighborhood Business District.
(6) Creation of a district for high density housing (i.e.,
six to ten units per acre)
or
Creation of an affordable housing floating zone,
or
Amendment of the PUD to allow at least a 20 percent density bonus
for the provision of affordable housing.
(7) Relaxation of standards for conversions of existing
dwellings.
(8) Inclusion of a PUD or use of other performance zoning
techniques on the Myers Corners site designated in the
Comprehensive Plan as mixed office retail. The site is
located on the north side of Myers Corners Road west of its
intersection with All angels Hill Road.
If the Board determines to act contrary to our recommendation,
the law requires that it do so by a majority plus one of the full
membership and that it notify us of the reasons for its decision.
Roger P. Akeley
Commissioner of Planning
By uJ..~
EribV~. Gillert
Assistant commissioner of Planning
,
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