Tuesday, February 18, 2014
by Christine Yeres
In last Tuesday’s public hearing on the draft scoping for an application to create a new “floating zone” that could permit a “Resort Lifestyle Complex” on the Legionaries property and others as described in the draft zoning text released last week, residents elaborated on the scope’s list of environmental impacts that must, by law, be thoroughly examined by the developer and town before any rezoning is approved. The hearing was punctuated several times by entreaties from residents to stop consideration of the application altogether. The Town Board declined the requests, closed the public hearing, and extended the period for written comment to close-of-business this Friday, February 21. [Video of the meeting is embedded below.]
The public scoping hearing (the scope is the list of environmental concerns the applicant must respond to) has closed, but written comments may be submitted until Friday, February 21, 2014—either by email, to a special address for the purpose:
Or by snail-mail, to:
Town Administrator Jill Shapiro
200 South Greeley Avenue
Chappaqua, NY 10514
To see the February 10, 2014 letter in which the Westchester County Planning Board weighed in on the Spa application click HERE
You can find all documents pertaining to The Spa at New Castle application (including the County letter of 2-10-14) on THIS PAGE of the town’s website.
To view the entire Draft Scope click HERE.
First to speak, Jeff Kay, who lives directly across the street from the Legionaries property, expressed alarm that neighbors had received no notification of the proposed rezoning. Town Board member Adam Brodsky assured him that the SEQR (State Environmental Quality Review) process had only just begun, that it would be marked by many more opportunities for public hearing, and that the Town Board naturally wished to hear from neighbors who are most affected.
The legal trigger for notification, explained the Town Board’s counsel, Nick Ward-Willis, comes later in the environmental review process. When, for example, the time comes for a public hearing on the Draft EIS or on the site plan, there would be notification in the newspaper-of-record [the Journal News] and letters sent to homeowners within a certain radius of the Legionaries property.
“But after all of this, after all these answers [to questions in the scoping document] are provided,” said Kay, “what will you use as the basis to make your decision?” People are confused, said Kay, about the “floating zone” the developer is proposing for the site.
“Every property owner has the right to petition the legislative body—the Town Board—to revise the town zoning ordinance,” said Ward-Willis. In this case, he explained, the developer has cast the zoning change in terms of a “floating zone” that might fit “a few unique properties” in the town with similar characteristics—and might, the developer is contending—be a “better use” of those properties. “At the end of all this the Town Board could vote it down or they could approve it.”
In the meantime, Ward-Willis explained, “the Town Board is entertaining that petition and has legislative discretion to find out ‘What would the impacts of this floating zone be?’”
“But when you vote on it, on what criteria do you base your decision?,” Kay asked. “How does this apply to the Master Plan? Do we not need to know that?”
SEQR steps reviewed
“First there is the SEQR process—this step,” said Ward-Willis. “So first [the Town Board] needs to make a finding that the proposed project does not have any potential adverse environmental impacts, or—if it does—that those impacts can be mitigated. [This includes] both the zoning aspect and the project impacts.”
“The SEQR process will identify and analyze,” Ward-Willis continued, “any adverse environmental impacts, then produce ‘Findings’—conclusions, based on the environmental impact statement—that the proposal either does not have adverse impacts, or that it does, and will specify how those impacts might be mitigated.”
“In terms of the zoning, it’s a legislative decision,” said Ward-Willis, and, therefore, “needs to be consistent with the comprehensive [master] plan, and [the Town Board] would need to make a finding that it’s an appropriate use of the property in this area—and those concerns are studied through the SEQR process—and in keeping with the character of the neighborhood, traffic impacts, storm water impacts. Those are all factors the Town Board should be considering in deciding whether this is an appropriate use of the property.”
Kay: “So it’s measured against the comprehensive [master] plan? You’re calling it recreational development; I call it commercial development. Have we given thought to the other alternatives? Will the residential option be fully studied as well?”
Ward-Willis: “The applicant will compare them all, then the Town Board will also weigh the alternatives.”
Kay: “Regardless of the profit to the developer?”
“The applicant has put forth an application,” said Town Board member Jason Chapin, “and has asked us to consider it. If you have other ideas for the use of this property, you can suggest them, but I don’t believe the applicant is obligated to look into all the alternative uses that might be suggested.”
Where will a “floating zone” float next?
“Who’s going to monitor this project?” asked Jeff Goldstein. “I really hope the board is taking a macro-view of this project. Put aside the legal and environmental issues and assume this is a great facility. By entertaining a proposal for large-scale commercial development—a hotel and spa, restaurant, mass parking—in an exclusively residential neighborhood, why should anyone in New Castle feel safe that their own neighborhood is safe from commercial development? What are the downstream implications of this project—and what message that’s going to send?” [The draft zoning amendment had not yet been released by the town. See its details HERE.]
Another resident suggested that the scoping document “specify all the possible usage of this project rather than leave them open-ended. Hours of usage, maximum population. The numbers really have to be looked at carefully. What are these walking trails that are mentioned in the scoping document?”
Unprecedented density, with little future control
“With this kind of density,” said Sharon Greene, a Tripp Street resident, “things are going to happen, whether you let them or not in this document. When the Legionaries of Christ first came before the town, they said they were not going to have any retreats, just 100 seminarians [residing there]. [From my house] I can see all the lights and traffic that goes in and out and it became obvious to me that they were having retreats. I reported this to the Zoning Board, and the Legionaries admitted they were having retreats and applied for an extension on their special permit to allow retreats. So there’s this fear that if you approve this monstrous commercial operation there with an absurd density for this site, you may put restrictions on it now, but you have no way of guaranteeing that there won’t be ‘scope creep’—or whatever you want to call it—and this is a very real concern. And I’m not sure there can be anything [in writing] that says something can’t happen.”
“They say they’re targeting seniors [for the condos],” said Greene. “I don’t think they believe that. I don’t think any of us believe that. And 2,500 square feet is bigger than a lot of our houses. And nothing will say you can’t have a kid.”
“I didn’t find anything in here about the location of the septic tank and distribution boxes and specific location of the septic fields,” Greene noted, continuing to peruse her notes.
“What is meant by the ‘no-build’ situation in the document?” Greene asked Ward-Willis.
Ward-Willis: “The current permitted use of the property.”
Greene: ”—which is two-acre residential?”
Ward-Willis: “No, the property in its current condition.”
“They haven’t used this site for the special permit in years,” said Greene. “So the current usage is no-usage. I called the DEC and checked on their [State Pollution Discharge Elimination] permit, a condition for having the special use permit. They let it expire in 2005, saying they didn’t need it anymore. Now six or eight years after they have admittedly not needed the property for a seminary, the special use permit for our town code should not exist at this point for that property. So the ‘no-build’ for that property should be as it exists now: no-usage. There has never been any environmental impact study of the property for use even by 100 people.”
Tree removal on the property
Greene reported that the developer had violated town’s noise ordinance last two Saturdays by cutting and chipping trees before 10:00 a.m. She played a video on her iPad of the wood chipping operation, as heard from her home, windows closed. Town Board members viewed the video.
“Nice view,” said Greenstein
“It is a nice view—now,” said Greene.
A 96-acre property, with development concentrated at the top
“They talk about the property, sort of disguising it as a 96-acre property,” said Greene. “Yes, it’s a 96-acre property, however, everything is going on in a five- to eight-acre spot, and the effect of density of this proposal is enormous. The impact concentrated in that one place, on top of a ridge among residential homes is where it’s all located.”
Will the project benefit the community?
“I think this project has to be shown [according to SEQR] to benefit the general welfare of the community,” said Greene. “I personally fail to see how it does that. It looks to me like a commercial New Jersey commercial developer is coming in trying to make our New Castle a commercial development in New Jersey.”
“We’ve given you so many strong, clear, legitimate reasons why this proposal should be nipped in the bud,” said Greene to Board members. “It’s not appropriate for onsite septic for this amount of usage. Past analyses of the property indicate that there is no good solution to the septic issues. The proposed usage is so much more intense and damaging ... the environmental and quality of life issues are untenable. Do you think the type of soil has changed or the depth of bedrock? There is no existing zoning in New Castle like the floating one proposed here.”
“This is a developer,” said Greene, “trying to create a new zone simply to profit off of taxpayers. The town development plan explicitly says ‘this area should remain low density.’ And add to that that this density is not distributed over the 96 acres but is essentially on ten acres of the site—nowhere in New Castle is there that kind of density, especially in a two-acre residential district.”
Greene reminded Town Board members that after running on a platform “that ‘planning should proceed development,’ now that you’re in office, we voters feel betrayed if you continue to allow this application—which so blatantly flies in the face of the town’s master plan—is allowed to proceed at all before any progress at all has been made on the master plan. On the flip side, when review of the master plan does begin, it should not be revised in a fashion just to accommodate this application. That’s certainly more of a danger if you allow this application to proceed.”
“What example are you providing residents,” Greene asked, “if you: one, don’t protect their neighborhoods as zoned; two, don’t follow the prescriptions of the master plan; and three, don’t stand by your promises to the residents of New Castle?”
Town Board has authority to “Stop this now”
“Finally, as your legal counsel will tell you, it’s well within the legal rights of the Town Board to refuse to entertain an application to petition for a zoning change,” said Greene, turning to Ward-Willis to ask, “Am I right?”
“Yes,” confirmed Ward-Willis, “that’s been mentioned a couple of times.”
“Again, we entreat you,” said Greene. “It’s not too late. Stop this now.”
No chance to view the draft zoning amendment proposed by the developer
Theoretically, said Chris Roberta, nother Tripp Street resident, “this zone could ‘float’ anywhere in town. It has the ability to affect the town, limited only by the text petition.”
“The document doesn’t go into the floating zone very much,” continued Roberta. “Seems like the spa is just related to this and the real meat-and-potatoes is the floating zone. [In the scoping document] there’s only slight mention of the zoning amendment and 20 pages on the spa proposal. We need a draft of that zoning amendment included in here.”
“The applicant did propose the draft amendment text,” said Ward-Willis. “That text is what started this process. It’s part of the record and it’s part of what the scope is examining. It is available for you to examine at town hall.” [Days later the town did provide the text online. To see it, click HERE.]
Roberta: “Once the scoping document is accepted as complete, will there be changes to that text?”
Ward-Willis: “Yes. It is at this point a draft. It’s in town hall.”
Master Plan timeline v. Spa timeline
Roberta: “[When it says in the scoping document,] ‘Analyze relevant recommendations describe project compatibility with the town development plan’— Is that the current master plan? Or the revised plan? You need to clarify that.”
“The master plan review,” said Roberta, “has been indefinitely delayed according to the planning department. I know you’re looking to hire a consultant. What’s the timeline? He was curious, said Roberta, whether the town intended to adopt a new master plan or use the current plan as guidance for the spa application, “because as soon as we close the comment period, this ship sails onward.”
“So if we close comment on this [spa scoping] before the ball gets rolling on the master plan,” said Roberta, “are we getting one ball ahead of the other?”
“All we’re doing now,” Ward-Willis assured Roberta, is the scoping document. “There will be more opportunity for public comment.”
“Stop the process now,” Greene asks
“Presumably your decision—yea or nay—will be based on the impacts,” said Greene. “And if the negative impacts cannot be mitigated and they are so severe that this should not proceed… My question is we have presented you with 15 years of documentation, studies that have already shown these negative impacts. So can you tell us why this is proceeding in the face of obvious impacts that have been shown to be not able to be mitigated and will have these kinds of damaging effects on the neighborhood and the town?”
Greenstein: “Dr. Greene, as compelling as your arguments are, the applicant has a right ...”
Greene: “No. No, the applicant does not have the right ...”
Greenstein: “... doesn’t have the right to try to change the zoning?”
Ward-Willis: “The applicant has submitted a petition and the town board is entertaining that petition and the applicant has the right—now that it’s being entertained—to go through the SEQR process and present its point of view.”
Greene: “Back up a sentence. You’re saying that the applicant has the right to come before the Board and have a zoning change application pursued. That is not the case. Once the board has decided to entertain the application—and the board had the right to not entertain it—then the applicant has the right to pursue the investigation of their application. But it is within the Board’s right to not entertain the application for a zoning change.”
Greenstein: “Well, we’re going to entertain it.”
Greene: “OK, then I’m asking why.”
Ward-Willis: “Because there’s a process in place which allows the applicant to address all the concerns that you have articulated during this scoping session. The applicant has the right to submit its own studies and say that it can respond to those studies and you’ll have a chance along with the public to say they have not responded—and the town’s consultants will be reviewing it. There is a process that the applicant is also entitled to due process.”
Greene: “The process is there because you are permitting them to proceed with this. You, as intelligent board members, which we all believe you are, have the capability to say ‘Look we have the answers to these questions already. Therefore there’s no point in wasting the applicant’s money, the time and energy of the board, the anxiety it’s causing the whole neighborhood, the potential impact on housing values during this whole process.’ Go and look at some of the documents from the [environmental impact statements] and see that these impacts are not mitigatable—and those kinds of things are not going to change, they’re only getting worse. You say it’s being entertained, but it is not their legal right to have the request for a change in zoning to be entertained.”
Town Board’s process will be open and transparent
“This Board has made no promises to the developer,” said Town Board member Lisa Katz. “You know about this process what we know about this process. It’s very transparent. We’re going to look at every comment and every issue that comes before us and make a decision.”
“Just like we’re giving the community the chance to voice your concerns,” said Brodsky, “we want to give the developer the same right because they’re a potential member of the community. We should have an open mind and listen to their concerns and make a decision. I think they’re entitled just like you are to do the studies and have their concerns heard.”
“I’ve been through many SEQR processes,” said Town Board member Elise Mottel. “We’ll look at the material and study it. That’s what we’re doing now. We’re trying to examine everything to hear both sides and make a decision.”
“I’ve been in your seat too, opposing the Town Board,” said Greenstein. “Better for you to focus on the septic, which is a real problem. For you to say we shouldn’t consider it is crazy. We should consider it. Pick your battles. As someone who’s been fighting the town for years, I’m passing on my wisdom.”
“Nothing has happened, nothing will happen without the residents being involved and open and informed,” said Brodsky. “We’re going to do everything in our power to hear every opinion.”
Who’s zoning amendment is it?
“The applicant has prepared a text amendment submitted along with their petition,” said Ward-Willis.
“If [the developer is] going to be offered the opportunity to help bias the town in how that’s written,” said Kay, “I’m asking that you also allow all of us. I feel they’re kind of feeding you what to write and it will perfectly match what they want.”
“The town has a zoning ordinance,” explained Ward-Willis. “The town could propose a change itself to that ordinance, or the zoning can be changed a second way: the zoning ordinance can be modified by a property owner requesting that the town board amend the zoning ordinance. For the town to entertain that petition, the applicant has to show what it is he wants the town to consider. So the drafting the applicant has done has to be done by the applicant. There’s been no examination of it yet. Setbacks, height—they all have to be considered. And the public is involved in that.”
Town of New Castle Board Meeting 2/11/14 from New Castle Media Center on Vimeo.
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