L to E: Issue a moratorium on new zoning ordinances until the Master Plan is updated

March 14, 2014
by Jeffrey Kay

I am happy to hear the Town Board has put into motion the update of the 1989 Town Development Plan, and that on March 18 the Steering Committee will meet with the Town Board and Pace consultants to discuss details of the community outreach. Town Supervisor Robert Greenstein stated “the overall purpose of the Master Plan is to provide a “roadmap” for development in the Town of New Castle over the next twenty years.” However, given how contrary the proposal for “The Spa at New Castle” is to the Master Plan, it is unfair both to the residents of our town and even to the developer to proceed with the application, the environmental (SEQR) review and the consideration of rezoning a residential neighborhood into a new commercial district concurrently with the update of the Master Plan.

Moving forward in this manner provides private developers who are intent on making substantial changes to our zoning ordinance specifically to accommodate commercial developments such as “The Spa at New Castle” the ability to exert a direct influence over updates and changes made to our Master Plan to suit their needs – including the creation of new zoning ordinances that would permit commercial development in residential parts of our town immediately and over the next 20 years. One such developer, Soder Real Estate Equities, LLC, has already drafted an amendment to impact this change, which the Town Board is considering now. The timing of these concurrent considerations is a clear conflict of interest which has been opposed by our Town Planning Board, has been strongly cautioned against from the NYC DEP and is inconsistent with core pillars of our Master Plan. This same conflict of interest was also strongly opposed by Team New Castle – three fifths of our current Town Board – during their recent campaign when they too called specifically for the town to issue a moratorium on new zoning ordinances until the Master Plan is updated.

New York State law requires that zoning be adopted “in accordance with a well-considered or comprehensive plan.” The comprehensive plan should provide the backbone for the local zoning law.  This requirement reflects both underlying constitutional considerations and a public policy that views zoning as a tool to plan for the future of communities. Over the years, New York’s courts have defined the comprehensive plan (or “Master Plan”) as the governing body’s process of careful consideration and forethought resulting in zoning that is calculated to serve the community’s general welfare.  Source: http://www.dos.ny.gov/lg/publications/Zoning_and_the_Comprehensive_Plan.pdf

Residential (R-2A) to Commercial rezoning for the purpose of enabling development of a hotel, retail, condos, restaurant, bar, spa and offices (as Soder Real Estate Equities, LLC has proposed for “The Spa at New Castle”) clearly and completely violates the core of what the Master Plan spells out so clearly for the Town of New Castle and its Residential Districts. The 1989 Town Development Plan, which reaffirmed the 1968 Town Plan of Development, set forth the position that:

“New Castle enjoys a position as one of the most attractive suburban communities in the region. More than any other single feature of the landscape, the Town’s character is principally defined by the quality of its residential environments. Its attractive residential areas are among its greatest assets, maintained and enhanced largely as a matter of deliberate community policy. Preservation and enhancement of New Castle’s residential character remains a prime objective of this Plan.”

The Master plan goes on to state:

• “Business uses, other than agricultural and livestock operations, should not be permitted in residential areas.”
• “Undeveloped land in the R-2A District represents an especially significant factor affecting the overall character of the Town since it is now largely responsible for defining New Castle’s more rural environments. Since much of this land is held in large parcels by a relatively few individuals, any circumstances that prompt one or more of these property owners to develop or otherwise dispose of their land holdings could cause noticeable impact.”
• One of the most effective means of assuring that New Castle is developed as planned is through zoning. The zoning power is one of the most significant tools available to the Town, whereby it can give direction to public and private uses of land throughout the community, both in the continuation of desirable land use patterns which exist today and in guiding future development in undeveloped or changing areas.”
• “If zoning is to be a valuable tool for maintaining New Castle as a highly desirable community, [all of the Town’s Board and Planning] officials must all work cooperatively with one another so that the integrity of the Town Plan is maintained. The Town’s regulations should be followed fully.”

The full text of the Master Plan can be viewed here: http://www.mynewcastle.org/images/SiteImages/Departments/BuildingandEngineering/Planning/Town_Development_Plan_1989.pdf

The “Spa at New Castle” proposal for development in a Residential District clearly violates our Master Plan.  So now the question remains of why this application and proposed zoning changes are still being considered at all – not to mention concurrently with the Master Plan update, and whether this will ultimately all be considered by the community to be consistent with a revised Master Plan once it has been completed.

In a letter dated January 14, 2014 to Sabrina Charney Hull, Planning Director for the Town of New Castle, the NYC Department of Environmental Protection said:

“Since this district could be applied to other properties in other parts of New Castle, establishment of such a floating district could have many significant impacts on the character, facilities, and environmental resources of the Town, depending on parameters set forth for the district. The Town of New Castle is working toward updating the Town Development Plan and may wish to consider evaluating impacts of a floating district as part of that process or as the subject of a separate generic environmental impact statement rather than in a DEIS associated with a specific development proposal. In this way, impacts that might be associated with the entire Town or other parts of the Town by a floating district might be more objectively analyzed and appropriate thresholds and parameters established.”

Source:  http://www.mynewcastle.org/images/SiteImages/LAtest_News_PDFs/the_Spa/2013-CNC-0432-SQ.1-RSL-01.15.14.pdf

Robert Kirkwood, Chairman of the Town Planning Board, stated at a meeting on February 18, 2014, that commercial development at 773 Armonk Road:

“…should not be carved out [of the Master Plan], and a special floating zone should not be established before it’s studied with the master plan. I would say that we would be getting the cart in front of the horse by looking at this. It is zoned for 2-acre residential… that’s what it is zoned for. This proposal is for a very significant change in that zoning inconsistent with our master plan, inconsistent with our zoning. You are doing an end-run around that statement and policy that’s been around for a long time. By looking at the application you are starting to move in an area that is inconsistent with a plan that exists. We start to get into problems and difficulties when we start doing this kind of pocket approach.”

Mr. Kirkwood went on further to say “It’s not unusual for a town to call a time out, a moratorium and take care of these of global planning issues.”

Source: Planning Board Meeting 2/18/14 http://new.livestream.com/nccmc/planningboard (timecodes: 14:33 and 20:00)

Additionally, the Town of New Castle Planning Board issued an official memo to the Town Board on this topic on February 21, 2014 stating:

“In general, the Planning Board observes that neither a project of this nature, scope and magnitude nor the adoption of a “floating zone” were ever anticipated in an R-2A zone in the Town of New Castle Town Development Plan. The Town Board should consider whether adoption of “floating zones” may have unintended ramifications in other parts of town. At a minimum, comprehensive amendments to the Town Development Plan would need to be considered by the Town Board for this project to address the desirability of zoning changes and the creation of “floating zones” for this project as well as for other similarly large parcels in town, especially where commercial development is proposed to be introduced into residential areas. The Town Board should determine whether review of the amendments to the Town Development Plan is more appropriately conducted before moving forward with this project, or as a component of this project in which case the Scoping Outline should address such amendments.”

Source: http://www.mynewcastle.org/images/SiteImages/LAtest_News_PDFs/the_Spa/https—-nccmc.zendesk.com-attachments-token-vntzy4crozjhx08-name2.21.14FINALPBmemotoTBreTheSpaScope.pdf

But our Town Board, who is Lead Agency for this process, has decided to move this application forward anyway while simultaneously updating the Master Plan. This is despite a clear conflict of interest, disagreement by our own Town Planning Board, strong cautions from the NYC DEP and the fact that the proposed project is inconsistent with core pillars of our town’s Master Plan. They just “shrink wrapped” all of these individually complex considerations and distinct processes together and have decided to run the cart alongside the horse by consolidating its environmental (SEQR) review of 1) Soder Real Estate Equities, LLC’s proposed new 250,000 square foot commercial district on 96 acres of residential property in a 2-acre residential district, and 2) the developer’s proposed rezoning amendments that would make it possible, and 3) updating of the Master Plan. They just “shrink wrapped” all of these individually complex considerations and distinct processes together.

This is especially troubling given that Team New Castle “ticket” ran a long, outspoken campaign which, in part, called just one year ago for a moratorium on new zoning ordinances until the Master Plan is updated. This was with respect to Chappaqua Crossing while campaigning for the Town Board positions which they have since won and now hold. Here is a letter written by Robert Greenstein from the Team New Castle Campaign website on 2/1/2013 requesting a moratorium for the exact same reasons, making the exact same points and using the exact same arguments made in this letter you are reading now (the similarities are striking!): http://www.teamnewcastle2013.org/issue-a-moratorium-on-new-zoning-ordinances/#more-21

How and why do we find ourselves in this spot?

• Should the Town of New Castle even be considering rezoning Residential areas for the purpose of carving out new Commercial Districts in our town?

• How can we know if the residential-to-commercial rezoning at 773 Armonk Road for the purpose of building a hotel/retail/condo/restaurant/bar/offices complex will accomplish a legitimate public objective if those objectives are not clearly identified before the zoning change is considered? 

• How can we know whether adoption of “floating zones” may have unintended ramifications in other parts of town?

• Why would the Town spend valuable and limited resources reviewing an application for a project that that might turn out to be totally inconsistent with the updated Master Plan?

• Why is the town undertaking the review and updating of its Master Plan if they’re not going to use the one they already have as they consider a project of this magnitude that so clearly violates everything the Master Plan says and represents?

• Why is Town Board ignoring their own Planning Board, the NYC DEP and resident’s thoughtful, well-informed points on this issue?

• Now that Pace Land Use Law Center is stepping as consultant on this process – why are they not recommending a moratorium? Do they realize we have controversial applications right now? Have they reviewed the opinions or the Planning Board, NYC DEP, residents and the Master Plan?

• Why have Robert Greenstein and Team New Castle’s position on this issue so dramatically and suddenly changed, just a mere few months into the job?

• Why has Soder Real Estate Equities, LLC already started clearing a substantial portion of this 96 acre property of trees that they do not even yet own, including the removal of much of the buffer between the property and adjacent residential homes?

There are too many unanswered questions. Rather than permitting the developer to influence Master Plan updates from rushed negotiations behind closed doors, the Town Board owes it to our community, and to developers, to issue a moratorium on new zoning ordinances until the Master Plan is updated. 

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