As discussed below, my several hours of legal research this weekend reaffirm the conclusion in our earlier post,”City Hall is giving bad legal advice to get Council votes” (Jan. 24, 2015) that:
Once put into law 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).
Mayor Gary McCarthy and Corporation Counsel Carl Falotico have continued to argue that the Planning Commission will be able to reduce the allowable square footage of aggregate signage and the maximum height of buildings in the C-3 district during the Site Plan review process. A Site Plan submitted by the Mohawk Harbor Developer and Casino Operator would be a detailed depiction and description of their proposed Casino Compound (the location and design of the gaming facility, its ancillary uses, parking garage and lots, and the casino hotel, and its traffic circulation plans and full signage plans), with plats, architectural drawings and more.
At the February 3, 2015 Committee Meeting of City Council, Councilman Vince Riggi, an independent and the only non-Democrat on City Council, asked that a provision be added to the C-3 Amendments specifying that the Planning Commission has the authority to make such modifications, before asking the Council to vote on extreme changes to the C-3 ordinance with no idea of what the results would be in the real world. Riggi was voted down, and the Amendments were place on the Council Meeting Agenda for Monday, February 9, 2015. The City Council is, therefore, poised to vote to approve the C-3 Amendments, despite their many flaws, and without having a fraction of the information needed to make an intelligent and responsible decision. So, they are dragging out all those rubber stamps again to please their Casino Cronies.
Councilman Ed Kosiur was adamantly against such a provision and Councilman John Ferrari stated it would be redundant. See the Schenectady Gazette article “Schenectady City Council mulls zoning for Mohawk Harbor: Riggi wants city to reiterate Planning Commission’s authority,” by Haley Vicarro, Feb. 3, 2015. According to the Gazette:
“Corporation Council Carl Falotico stressed that the commission has the ability to evaluate the aesthetic visual impact of the project even if the plans satisfy zoning requirements.”
While Falotico’s assertion is true, it is quite vague and seems to suggest more than he has actually stated. Planning Boards or Commissions, of course, very often do modify or set conditions for a Site Plan, usually after the applicant has agreed to the changes out of indifference or to avoid the Site Plan being disapproved. Those conditions tend to state detailed landscaping or buffering requirements; specify allowed color schemes for buildings and signs; limit illumination, and similar “aesthetic” improvement or safety requirements. Leaving such details to the Planning Commission not only makes sense, it is a necessity, since such details could not possibly be included in a zoning code for a district that has hundreds of parcels in many different settings (and some of the criteria may appear to be in conflict). Of necessity, the criteria given to a planning board often speak in general terms, such as not having a “substantial impact” on the nature of the neighborhood; or ensuring the “adequacy” of landscaping or buffering between the project and adjacent lands, or of traffic or pedestrian access and circulation.
In the case Moriarity v. Planning Board of Village of Sloatsburg, 119 A.D.2d 188 (1986), the N.Y. appellate court for the 2nd Department pointed out that zoning codes establish specific standards that are applicable to all parcels in a zoning classification, but then have to be applied from lot to lot, by a planning board. The Moriarity court noted that: “there is no escape from the fact that most of the cases dealing with land use regulation indicate a fairly restrictive interpretation of delegated powers. Thus it has been consistently held that each local agency involved in the zoning and planning process [including planning boards], may not exceed the bounds of the power specifically delegated to it.”
The court went on to find that the Sloatsburg Planning Board could not, under its general power to protect the health, safety and general welfare of the community, deny site plan approval based on the lack of nearby public water for fire protection purposes.
Planning Commission conditions are said to be “more onerous” than the zoning code, because they take a code provision stated in general or broad terms and make particular demands of the applicant for fulfilling the code provisions (e.g., the number and height of evergreen trees, or the width and length of a landscaped buffer zone).
In our large state, with hundreds of planning boards and commissions, do we find them in any significant numbers ignoring maximum dimensions set by their local legislative body in a zoning code? If so, and given the importance of building height, total signage, aggregate density or similar dimensional factors to an owner or developer, we might expect there to be a lot of caselaw explaining when a planning board is allowed to impose lower limits than the maximum dimensions stated in a zoning code for a particular district or use. However, several focused hours of online legal research turned up only one court case where a planning board forced an applicant to accept a lower number than appeared in the relevant code section. That case, Greencove Associates v. Town Board of North Hempstead, 87 A.d.3d 1066 (2011) (“Greencove”), is not a very strong precedent for the notion that our Planning Commission will be able to tame the C-3 Amendments and make them reasonable for use at Mohawk Harbor.
Greencove is a weak precedent for at least two reasons. First, the planning board in that case was only performing an advisory function; it was the Town Board that actually made the decision to condition site plan approval on the reduction in the size of a building from the proposed 10,000 sq. ft., which complied with the code maximum, to 6,800 sq. ft. Because a town board is the legislative body that is the ultimate author of the zoning code, courts are less likely to question its site plan decisions.
More important in Greencove, however, are the facts. In 2010, a shopping center owner wanted to add an additional building and place it in a narrow, irregularly-shaped corner of its 5.26 acre parcel. Placing the building in that location at the proposed, conforming size of 10,000 sq. ft., however, would have encroached upon a landscaped buffer protecting a residential neighborhood, that had been imposed on the property in 1959, when the original center was permitted under a new zoning change, and was required to be retained and improved in 1999, when the center was expanded. The average width of the landscaped buffer was 22 feet. The proposed building would have reduced the buffer behind the building to only 4 or 5 feet. Since protection of the surrounding neighborhood is an important element in site plan review, and reducing the size of the building would allow it to be further back from the property line, preserving the existing buffer, the appellate court found the condition reducing the size of the building was reasonable and the Town Board had the authority to impose it.
Of course, with Mohawk Harbor being a new development, there will be no question in the upcoming Site Plan of encroaching on a pre-existing restriction. It is difficult to imagine a conflict analogous in facts or even scope to Greencove.
An opinion far more relevant to our situation than the Greencove case, is WEOK Broadcasting Corp. v. Planning Board of the Town of Lloyd, 79 NY2d 373 (N.Y. Court of Appeals, 1992) (“WEOK“), decided by the highest Court in our State. WEOK significantly weakens the arguments made by the Mayor, Corporation Council and other City Hall minions. The Planning Board of the Town of Lloyd refused to give site plan approval to the Broadcasting Co. to build an AM radio transmitter facility consisting of five radio towers, even though its request for a 445′ tower was a conforming use. As the Court of Appeals noted:
“The site is located in a Designed Business zone which allows radio and television towers as a permitted use, subject only to site plan approval by the Planning Board.”
In an effort to mitigate the effect of the towers and their lighting, the applicant reduced the height of the tallest tower 45%, to 245 feet. Nonetheless, the Planning Board rejected the Broadcasting Co.’s comprehensive Visual Impact Analysis, which was prepared by landscape architects. Instead, the Board concluded that the tower might be seen from the historic FDR residence and, for that aesthetic reason, refused to approve the site plan. When the Broadcasting Co. appealed, two lower courts held that the Planning Board’s determination had been based on negative impact considerations alone, and should be annulled as not supported by substantial evidence. The Court of Appeals agreed with the lower courts, and pointed out that the Board had ample opportunity to hire its own experts or produce reliable evidence to contradict the petitioner’s Analysis. Failing to do that, the Board’s conclusion was instead based merely upon complaints by the public and community organizations and agencies.
In a section of its decision particularly pertinent to the C-3 Amendments and the casino, the WEOK Court discussed the relevance of the zoning code’s provisions, stating (79 NY2d at 382-383):
“For example, the inclusion of a permitted use in a local zoning ordinance is tantamount to a legislative finding that the permitted use is in harmony with the general zoning plan and will not adversely affect the local community (RPM Motors v. Gulotta, 88 A.D.2d 658, 450 N.Y.S.2d 525). Thus, here, although by no means determinative, it should not be overlooked that the aesthetic visual impact of the towers, was, we presume, considered at the time that radio and television towers were included as permitted uses in the Designed Business zone.” [emphasis added; also see Robert Lee Realty Co. v. Village of Spring Valley, 474 N.Y.S.2d 475, 61 N.Y.2d 892, 462 N.E.2d 1193 (N.Y., 1984)]
If a provision authorizing a special use when certain conditions are met is “tantamount to a legislative finding that the permitted use is in harmony with the general plan and will not adversely affect the local community,” the narrower choice to permit a particular building height or amount of signage seems even more to be a legislative finding that those dimensions will not have a negative impact on the community.
Moreover, when a specific maximum number has been chosen by the City Council for height and signage, only months before the Site Plan review, and concerning not a broad district with hundreds of parcels, but one very specific development in a compact zoning district, it should be especially difficult for our Planning Commission to ignore the judicial presumption that the Council has considered the “aesthetic visual impact” of the tall buildings and the aggregate permitted signage. Also, as a practical matter, any detailed expert analysis of visual impact presented in the Site Plan proceeding will almost certainly come from the Applicant (Galesi Group), and not the Planning Department.
Furthermore, it would be even more difficult for the Planning Commission to find substantial evidence of a negative visual impact when the Metroplex and the City Council (as soon as tomorrow Feb. 9) have approved the Mohawk Harbor Environmental Impact Statement, explicitly declaring that there will be no negative visual impact, defending the use of high buildings and heavy density downtown, and finding that all practical environmental mitigation is being performed as to all issues presented. [The casino would also surely remind the Commission and any reviewing court that it had stated its desire to have a 110′ gaming facility in its supplemental draft environmental impact statement.] Thus, RPM Motors, Inc. v. Gulotta, 450 N.Y.S.2d 525, 88 A.D.2d 658 (N.Y.A.D. 2 Dept., 1982), the case cited in the indented quote above by the High Court in WEOK, emphasizes the importance of having a recent Environmental Impact Statement, saying, “Further, and more importantly, the environmental impact statement filed by the Town of Hempstead’s Department of Conservation and Waterways indicates that the ‘project will not have a significant effect on the environment’.”
There are at least to other significant factors that would make it nearly impossible for the Planning Board to find a negative aesthetic impact that might permit it to reduce the maximum dimensions in the Amendments:
- Signage: The maximum 19,000 square feet of signage, in amended §H(1), does not relate to all of the C-3 district, nor even all of Mohawk Harbor. Instead, it applies solely to “a casino gaming facility and its ancillary facilities, attached hotel, parking garage and pylon signs.” When the sole gaming facility licensee in the Capital District comes to submit its Site Plan application, it will be particularly hard to conclude that its particular situation was not envisioned and blessed by City Council. Therefore, the signage plan review by the Planning Commission in its Site Plan role, may indeed involve the traditional color, location and illumination issues, but is most unlikely to touch the very specific 19,000 square footage figure, which Corporation Counsel himself told the Planning Commission last month was the “minimum necessary” for the casino compound.
Building Height. Under the current law, you must receive a special use permit to construct a building more than 56′ in the C-3 district. In the C-3 Amendments we are told, however, that “Maximum building height in the C-3 District shall not exceed 110 feet, and no Special Use Permit shall be required.” (emphasis added) This is surely an indication that City Council does not want the 110′ buildings to undergo a strict evaluation.
Under the Amendments, three highly relevant requirements for a Special Use Permit (§264-99) will no longer apply when seeking permission to construct a 110′ building in C-3:
A. Impact. The proposed building or use shall not substantially impact upon the nature and character of the surrounding neighborhood. In determining substantial impact, . . .
B. Adjacent properties. The proposed building or use will not have a substantial or undue adverse effect upon adjacent property, the character of the neighborhood, traffic conditions, parking, utility facilities and other matters affecting the public health, safety and general welfare.
E. Loss of significant features. The proposed building or use will not result in the destruction, loss or damage of any natural, scenic, architectural or historic feature of significant importance . . “
Site Plan Review focuses much more on details than on broad questions of impact off-site. The only provision in the Site Plan Review criteria (§264-89) that relates directly to aesthetic effects on nearby properties or neighborhoods is: “I. Protection of adjacent or neighboring properties against noise, glare, unsightliness or other objectionable features.” Noise, glare and unsightliness are elements that can be readily handled far short of a Planning Commission rewriting the zoning code to penalize a particular applicant.
Finally, Corporation Counsel Falotico and I agree that the Planning Commission could not turn to the drastic solution of reducing the maximum dimensions in the Code unless it concluded there were no other way to avoid or mitigate the potential negative aesthetic impact. Given the many traditional tools the Commission has to deal with visual aesthetic problems reducing Code dimensions should be nearly impossible to justify.
As suggested at the top of this posting, finding sufficient evidence and authority to order mitigation through reduced height or signage requirements, may require the Planning Commission to undergo a SEQRA process including a full environmental impact statement. But, amassing sufficient evidence to overcome the recent Environment Impact Statement finds seems dubious at best.
Therefore, as stated in our earlier post, there is no legal basis for Council members to believe they can responsibly vote on the current version of the C-3 Amendments, with virtually no details from the Casino Gang, based on a belief that the Planning Commission has the authority to make things right. Of course, if it somehow does have that authority, Galesi Group and Rush Street Gaming will not have the certainty they and City Hall claim they need ASAP. By failing to put into the C-3 Amendments a provision similar to that proposed last week my Councilman Riggi, granting the Planning Commission broad authority to reduce maximum dimensions (and increase minimum dimensions, such as setbacks) found in the C-3 zoning code, City Hall and the City Council are telling their cronies in the Casino Gang that the casino and Mohawk Harbor will continue to get everything they want.
p.s. To Carl Falotico: If you have caselaw that rebuts my reading of Greencove and WEOK, etc., I hope you will share it with me. If other lawyers have comments or caselaw to contribute, I hope they will, too.
– click these links for the relevant document:
Schenectady Zoning Code Special Use Permit Standards §264-99
Schenectady Zoning Code Site Plan Review Standards §264-89
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