Letter to ZBA: Ensure that Alfredo’s is operating within its special permit for a nursery

The ZBA is scheduled to continue its discussion of the cell tower proposed by Homeland Towers on the Alfredo property on Wed. May 28. To see agenda, click HERE
Monday, May 19, 2014
by Roger Blanc and June Blanc

“The Board has been provided with sufficient information of unsanctioned activities from neighbors of this property that surely require further investigation by the Board.”

May 19, 2014

To Members of the New Castle Zoning Board of Appeals
Town of New Castle
200 South Greeley Avenue
Chappaqua, NY 10514

Re:  Homeland Towers, LLC/Alfredo Landscaping & Development Corp. application appealing the Building Inspector’s determination that an amendment to the existing Special Use Permit is required, and for an amendment to their Special Use Permit to permit a wireless telecommunication services facility.

Homeland Towers/Verizon/Alfredo Landscaping – Application for Special Use Permit, and Wetlands Permit Approvals for a Wireless Telecommunications Services Facility \ (Major) – 620 Armonk Rd. (NY Route 128) – TM #101.11-1-2

Ladies and Gentlemen:

We respectfully recommend that the Zoning Board of Appeals (the “Board”) deny the above-captioned applications (together, the “Applications”) for the reasons set forth below and other reasons the Board may find appropriate.

We respectfully request, moreover, that the Board make an unannounced site visit to Alfredo LDC, in connection with the company’s application for an amendment to their Special Use Permit, to inspect the premises to determine whether the site is in compliance with the site plan created by that Special Use Permit.

This company’s Special Use Permit allows it to operate a plant nursery in a residential zone.  That Special Use Permit created a specific site plan that delineated what activities would be allowed and where on the site those activities could be conducted.  Among other provisions, the site plan provides the acceptable location for mulch storage and for soil storage, specifies the number and types of trucks and other equipment allowed on the property, provided specific locations for employee parking, reflecting the permit’s limitation on the number of employees allowed.  The Board should ensure that there are no activities being conducted on the property that are not allowed by the Special Use Permit and that none of the activities that were allowed have expanded from their originally approved locations.

As the Board knows, a homeowner may make changes in a building with a permit from the Building Inspector, but a site plan, created by the Board, requires an amendment to the site plan by the Board itself before the Building Inspector can issue permits to make changes that are not in compliance with the site plan.  There has not been an amendment to this original site plan, created with careful consideration of the importance of ensuring that this use was, and would remain, compatible with the residential zoning and use of the surrounding properties.  The requirement that a plant nursery in a residential district can only operate pursuant to a Special Use Permit reflects the Town’s recognition that such use should be carefully controlled to ensure that it is conducted in a manner which is compatible with the surrounding uses.

The Board has been provided with sufficient information of unsanctioned activities from neighbors of this property that surely require further investigation by the Board.  The attached photographs, which were also attached to our March 18 letter, document some of the activities on the property.  This property is not only in a residential district, but it is located within less than a mile of a County Park, Wampus Pond Park, and a Town Park, the Burden Preserve, as well as significant New York DEP holding along the road, and is in the Kisco River watershed, flowing directly into the Croton Reservoir, which watershed is listed by New York State as critical waters requiring special protection.  When the Special Use permit was issued and the site plan was originally created the Board took into careful consideration the sensitivity of the site and of its responsibility to maintain the character of the neighborhood and the natural resources of the town in crafting the site plan.  The Board should be no less vigilant in amending this Special Use Permit and Site Plan.

As a final note, the Board in Matter of Holy Spirit Association for the Unification or World Christianity v Gabriel Rosenfeld et al., Constituting the Zoning Board of the Town of New Castle, denied a Special Use Permit for a religious use on property opposite the Alfredo LDC property on Armonk Road because the applicants deceived the Board while their application for a Special Use Permit was pending by misrepresenting the activities they were conducting at the site.  In this case, the applicant has represented, through his attorney at Board hearings, that the site was in compliance with the existing Special Use Permit, which created the site plan.  Should this Board find that not to be accurate, such conduct would certainly be a sufficient basis to deny continuance of the plant nursery activities.  At the very least the Board should deny any amendment of the Special Use Permit until the site is in complete compliance with the existing Special Use Permit and site plan.

Respectfully submitted,

Roger D. Blanc
June K. Blanc

cc: New Castle Planning Board

Alfredo


Comments(11):
We encourage civil, civic discourse. All comments are reviewed before publication to assure that this standard is met.

Always shepardize your legal citations - Matter of Holy Spirit is no longer good law. 

See Matter of Caspian Realty v. Zoning Board of Appeals of Town of Greenburg, 68 A.D.3d 62.

By Chris Roberta on 05/20/2014 at 12:09 pm

Amen! As someone who lives close enough to be alarmed by this, i believe the applicant has been abusing their special use permit for a long time now. This is far more than a “nursery”.  I am hoplng this attempt to so irresponsibly place a cell tower in the middle of a reaidential area - and in plain sight making it completely out of character - will finally illuminate that fact for the town zoning and planning boards. Lets be honest , this is all about money. The applicant will get $180K in rent every year for this. Who pays? Neighboring homeowners, who will lose property value and expose themselves to the threat of harmful radiation. The town, who will lose property taxes on reduced home values. And anyone who enjoys the special character of this part of town will lose. A 150 foot cell tower there is completely out of place. I am not against cell towers - but i am against the irresponsible placement of cell towers. Zoning board - say no!

By Irresponsible Placement on 05/20/2014 at 4:00 pm

Mr. Roberta, look more closely:

The Matter of the Holy Spirit for the Unification of World Christianity v Gabriel Rosenfeld entailed the denial of a Special Use Permit under a section of the New Castle Town Code.  Matter of Caspian Realty v Zoning Board of Greenburgh was an application for a variance under Town Law Town Law 267 b (3), not a Special Use Permit. However, the Court in the Caspian case held that deceit alone was not a basis for denial of a variance, but that deceit could be considered a significant and compelling factor in denying a variance under the criteria of Town Law 267 3 (b) which require the ZBA to weigh the benefit to the applicant of the variance against the adverse impact of granting the variance on the Town and the public.  In Caspian, the adverse impact of Caspian’s pattern of deceit on the town’s ability to enforce the law in the future was adequate basis for the Court to uphold the ZBA’s denial of the variance. The Court in Caspian merely said that to the extent the New Castle ZBA denied the Special Use Permit in the Matter of the Holy Spirit (better known as the Unification Church) case, it would not meet the criteria of Town Law 267 3 (b).  However, New Castle ZBA denied the Special Use Permit on two bases. In addition to the plain fact of deceit and misrepresentation, the ZBA also denied the Special Use Permit for the Unification Church’s pattern of deceit and misrepresentation because it was a sufficient basis to believe that the Unification Church would not comply with conditions imposed by the Zoning Board in a Special Use Permit.  The holding in the Caspian case, in fact, very much supports the reasoning in the Matter of the Holy Spirit case.

By On the contrary on 05/20/2014 at 5:33 pm

On the Contrary:
“In this case, the applicant has represented, through his attorney at Board hearings, that the site was in compliance with the existing Special Use Permit, which created the site plan.  Should this Board find that not to be accurate, such conduct would certainly be a sufficient basis to deny continuance of the plant nursery activities.”

Misrepresentations alone is not sufficient per Caspian.

By Chris Roberta on 05/20/2014 at 5:52 pm

@ On the contrary,
  Interestingly your analysis of the opinion in Caspian has left out the Pioneer-Evans discussion.

By Nice try! on 05/20/2014 at 11:54 pm

The Pioneer Evans case merely says that because it’s a special use permit the holding (that misrepresentation alone IS enough) does not apply in a town law case.  I don’t know what the point of your comment is.

By On the contrary on 05/21/2014 at 10:36 am

The point is that the Pioneer-Evans discussion pretty darn clearly states that misrepresentations alone is not enough; as Mr. Roberta has illustrated.

By Nice try! on 05/21/2014 at 1:20 pm

“pretty darn near”  is not really much of a basis for a legal argument.  And go read Pioneer-Evans.  Mr Roberta didn’t really illustrate anything- and you can’t use Shephards as precedent- you have to go read the case.

By to nice enough on 05/21/2014 at 2:15 pm

For a little primer on fighting the tower check out Omnipoint v. City of White Plains 175 F.Supp 2d 697

By C.R. on 05/21/2014 at 10:57 pm

You misquoted - The word was “clearly” not “near”.  You must have had the same problems reading & interpreting Caspian.

By Nice Try on 05/22/2014 at 9:56 am

Anybody know what happened at last night’s Zoning Board meeting?

By curious on 06/26/2014 at 4:20 pm


Post a comment:

Display Name*:

Your Display Name will be associated with this comment on NewCastleNOW.org. We encourage commentators to use their real name or initials.

We encourage civil, civic discourse. In other words, be pithy and polite. All comments will be reviewed before publication to assure that this standard is met.