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).