City Hall is giving bad legal advice to get council votes

     – below is a letter sent by email on Jan. 24, 2015 to the City Council of  Schenectady. Update: it is more relevant than ever given the outcome of the City Council committee meeting on Tuesday, February 3, 2015.  See Schenectady City Council mulls zoning for Mohawk Harbor
(Schenectady Gazette, by Haley Vicarro, Feb. 2, 2015)

– share this posting with the short URL: http://tinyurl.com/BadZoningLaw

Dear City Council President and Members,

The Mayor [Gary McCarthy] has apparently been reassuring City Council members that you can accept items such as the height and signage limits in the proposed C-3 waterfront district amendments, without looking closely into each issue, because any problems can be fixed by the Planning Commission in Site Plan and Special Use Permit review proceedings.  As a retired lawyer who has done a significant amount of legal research and writing on zoning issues over the past few years, my good faith legal opinion is that His Honor is simply wrong.

red check Once legislated in a new version of C-3 standards, the signage, height and setback numbers will be virtually untouchable by the Planning Commission (unless, perhaps, it does a new environmental impact statement under SEQRA that justifies the changes as necessary “mitigation” of environmental harm).

The developer and Casino owner have no reason to contradict the Mayor’s position, as they would be very pleased if you believe him and think you can just punt the hard decisions over to the Planning Commission.

Planning Commission Chair Sharron Copolla voiced the same excuse for going along with the proposals referred to it by the Council at the January 14 special public meeting of the Commission. She said they could accept 110′ building heights because the Commission could reduce that limit during Site Planning.  I returned to the table to correct her on that point of law during the public comment portion of the meeting, saying that in general our State’s judges won’t let a board or commission reject plans that are within the standards and requirements of an adopted zoning ordinance, and surely not without a very good justification. Ms. Copolla responded, “we know that,” but went on to make the same assertion again later in the Meeting, saying Commissioners had the power to reduce the maximum numbers during Site Plan review. Commissioner Wallinger immediately told Ms. Copolla, “No we don’t.”

Neither planning nor legal staffers for the City raised their voices to reject my legal conclusions at the Jan. 14th meeting.  Also, despite their very active participation in the Planning Commission’s public meeting, the Galesi and Rush St. lawyers did not object to my stance, as they would love the City Council to give them all they want now in the misguided belief (or with the phony excuse) that appropriate adjustments can be easily made later.

In addition, note that the amendments’ height provision expressly says: “Maximum building height in the C-3 district shall not exceed 110 feet, and no Special Use Permit shall be required.”  The provision then goes on to address a specific situation when a building that tall might not be appropriate, saying “maximum building height in the C-3 district shall be limited to 56 feet within 100 feet” of a residential district.  Both of these height provisions suggest the amendments do not intend to invest in the Planning Commission a broad authority to contradict the legislative limits.

To validate my legal conclusion, I spoke by phone with an attorney (my brother in Erie County) who has over 25 years of NYS zoning law experience.  Because he most often represents homeowners against developers, he very much would want Ms. Copolla and Mayor McCarthy to be correct about fixing zoning excesses during the Site Plan or Special Use Permit review process. Nonetheless, he told me that the Planning Board would need, at the very least, to conduct a SEQRA review with an environmental impact statement, as part of a Site Plan or Special Use permit review, in which it finds a significant negative impact that requires mitigation that replaces limits stated in a zoning ordinance, in order for it to have authority to make a change like rejecting the maximum number set in the zoning ordinance.

Yes, in a Site Plan Review, the Planning Commission can dicker over style, colors, position and height of a particular sign, but in my best legal judgment it cannot say, “you must use less than 19,000 sq. ft. now that we have seen your actual plan”, or “110′ is just too tall at that spot.”  The Applicant would surely point out that they did use the 110 feet number regarding the casino hotel in the recently approved final environmental impact statement, and no review of that issue is appropriate.

honestflip You have the right to ask Corporation Counsel for a memorandum explaining his best, good faith legal conclusion on this topic, and not just a conclusion dictated by the Mayor.

In sum, letting the Planning Commission take the responsibility later for correcting any excesses in the proposed amendments is no excuse for a lack of diligence or courage by City Council members, or for acting in a rush due to the manufactured pressure to meet a non-existent deadline. It would be a poor gamble in a situation where the House Always Wins.

On the many first-impression issues before you about casino and waterfront zoning, you need, and have the right and responsibility to demand from staff, a memorandum explaining the rationale for a particular proposal, its pros and cons, and the factual basis for staff’s conclusions.  Furthermore, you have the right to adjourn so that staff or the Galesi Group and Rush Street Gaming can provide the Council with more particulars, including renditions depicting planned buildings in scale, and the signage details we were told had convinced Schenectady’s Corporation Counsel that the minimum needed at the casino complex was 20,000 sq. ft. [Rush Street did not use Schenectady’s formula when measuring the square footage of its desired pylon, and City Staff did not notice the mistake.  As a result, Rush Street realized at the Commission hearing that they had overestimated the square footage of the pylon, and told the Planning Commission it could live with 19,000 sq. ft., the number in the latest version of the amendments to C-3.]

There is no rush, because there is no predicted date for issuance of the gaming license and there is much work that can be done without an amended zoning ordinance.  Indeed, with all the preparation already done by such an experienced developer and casino operator, the two-year window for completing the casino after issuance of the license should be very doable.

Thank you for giving this complicated and highly significant zoning task the time and attention it deserves.  For detailed discussion of issues raised by the zoning amendments, see the list of webpostings at http://tinyurl.com/CasinoZoning, which will be increased over the weekend.

David Giacalone

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