HomeMy WebLinkAbout2008_03_12 Planning Board Minutes 3-12-08 minutes pagel
04 4 Town of Mamaroneck
Planning Board
94
Town of Mamaroneck Planning Board Minutes
March 12, 2008
Present: Marc Rosenbaum, Chair
C. Alan Mason,
John A. Ortiz
Ellen Dunkin
Virginia Picciotto
George Roniger
Edmund Papazian
Absent: Nancy Seligson, Liason
Elizabeth Paul, Environmental coordinator
Also Present: Ron Carpaneto, Director of Building
Kevin G. Ryan, Counsel
Anthony Oliveri, P.E
Wanda Spevadula, Public Stenographer
Carbone&Associates, LTD.
111 N. Central Park Avenue
Hartsdale, New York 10530
Francine Brill, Recording Secretary
1. Minutes
On motion of Dr. Mason, seconded John Ortiz the minutes of February 13, 2008 were
corrected and approved unanimously.
2. Application of Steven Emanuel, 2 Rocky Hollow Drive, for Fresh Water
Wetlands and Water Courses Permit
PUBLIC HEARING
Continuation of Public Hearing.
Leonard Brandes applicant's architect and Steven Emanuel the applicant appeared and
addressed the Board. Mr. Brandes stated that he is requesting permission to complete
the pool and patio project and put up the state required pool fencing.
The Board discussed the plans identified as "SY-001," dated 4/07, and amended 1/15/08.
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The Board stated that it was just brought to its attention that the fence depicted on the
plans would be placed in a conservation easement area that does not allow structures.
Mr. Emanuel stated that he was aware that the state required a fence around a pool from
the beginning of the project, but that it does not specify the distance or placement of the
fence. Mr. Emanuel stated that he did not want the fence close to the pool as he felt it
would bisect the property destroying the visual flow of the property. He added that he
purchased the property in part because of the extensive rear yard extending to the
wetlands area.
Mr. Ryan stated that because the Town of Mamaroneck is the grantee of the conservation
easement it is up to the Town Board to decide whether the proposed fence can be placed
within the easement area. In other words, it is a jurisdictional issue whether the Planning
Board even has the authority to approve the plans showing the placement of the fence in
the conservation easement area.
The Board felt that they should hear from the environmental coordinator, Elizabeth Paul,
with regard to the fence in the easement area. Ms. Paul was not present.
The Board reviewed a letter concerning the application, dated March 11, 2008 from Mr.
Oliveri of Dolph Rotfeld Associates, the Consulting Engineer to the Planning Board. The
Board discussed whether a permit could be issued under the circumstance and given the
evidence that was presented.
In view of the partial work already completed at the project site and the mitigation
measures implemented by the applicant, the Chair called upon the members to adopt a
nun pro tunc (i.e., retroactive) wetlands permit, subject to certain conditions set forth
below.
On Motion duly moved and seconded, the Board voted to close the Public Hearing.
The Chair asked for a motion.
On motion of Mr. Ortiz, seconded by Ms. Picciotto the following resolution was
proposed and ADOPTED 6-1 Dr. Mason voted no with explanation.
CERTIFICATION
As Chairman of the Planning Board of the Town of Mamaroneck,
I hereby certify that the following is the Resolution adopted by the
Planning Board at the meeting held on March 12, 2008
WETLANDS AND WATERCOURSES STEVEN EMANUEL
WHEREAS, Steven Emanuel ("Applicant") has applied for a Wetlands and
Watercourses Permit pursuant to the Wetlands and Watercourses Protection Law of the
Town of Mamaroneck (Local Law 6-2003) Town of Mamaroneck Code, Chapter 114 (the
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"Wetlands Law") for the premises located at 2 Rocky Hollow Drive and known on the Tax
Assessment Map of the Town of Mamaroneck as Block 310, Lot 2; and
WHEREAS, this Planning Board (the "Board) has previously determined that the proposed
action is a Type II action under SEQRA and, accordingly, no further review is required
under SEQRA; and
WHEREAS, the Planning Board conducted a Public Hearing pursuant to Wetlands Law
§114-7(C) on February 13, 2008 and March 12, 2008;
WHEREAS, in accordance with Wetlands Law §114-7(D), and as set forth in the report
by the Town's Consulting Engineer(s) and/or other agent(s), which is attached hereto and
made a part hereof, the Board has considered:
1. any reports from other commissions,including the Coastal
Zone Management Commission, and Town, County, State
and/or Federal agencies;
2. all relevant facts and circumstances,including but not limited
to:
a. the environmental impact of the proposed
action;
b. the alternatives to the proposed action; and
c. the impact of the proposed activity on
wetland functions and the benefits as set forth
in Wetlands Law §114-1;
3. the availability of preferable alternative locations on the
subject parcel;
4. the availability of further technical improvements or safeguards that
could feasibly be added to the proposal;
5. the possibility of further avoiding reduction of the wetland's or
watercourse's natural capacity to support desirable biological life,
prevent flooding, control sedimentation and/or prevent erosion,
facilitate drainage, and provide recreation and open space; and
6. the extent to which the public or private benefit derived from such
use may or may not outweigh or justify the possible degradation of
the wetland or watercourse, the interference with the exercise of
other property rights, and the impairment or endangerment of public
health, safety, or welfare;
NOW THEREFORE, BE IT RESOLVED THAT the Planning Board finds,
pursuant to Wetlands Law §114-7(E),based on the record before it, that the Applicant's
proposed regulated activity is consistent with the purposes of the Wetlands Law, as set forth
in §114-1(A):
1. to preserve, protect and conserve the Town's tidal and
freshwater wetlands and watercourses; to prevent
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despoliation and destruction; to regulate their use and
development; and to secure the natural benefits of wetlands
and watercourses that is consistent with the general welfare
and beneficial economic and social development of the town;
and
2. to ensure maximum protection for wetlands and watercourses by
discouraging degradation within them and within their buffers that
may adversely affect these natural resources; and to encourage
restoration of already degraded or destroyed wetlands,watercourse
and buffers, and to ensure "no net loss" of wetlands and watercourse
areas.
BE IT FURTHER RESOLVED, that the application of Applicant for a Wetlands
and Watercourses Permit is hereby GRANTED subject to the following terms and
conditions:
1. This permit authorizes the work shown on the drawing
identified as "SY-001" submitted by the Applicant to the
Planning Board,last revised January 15, 2008, and no other,
except that the black vinyl coated chain link fence shown on
such plans to be located in the conservation easement area as
shown on such plan shall not be constructed as shown on
such drawing without the prior agreement and approval, of
the Town Board on behalf of the Town of Mamaroneck as
grantee of the conservation easement. In the event the Town
Board disapproves construction of the fence as aforesaid, the
applicant shall submit a new application under the Wetlands
Law prior to placement of the fence within any regulated
area.
2. Prior to the commencement of work pursuant to this permit,
the Applicant shall post a bond in the amount of$1,500.00
to ensure the satisfactory completion of the project in
accordance with the conditions and limitations set forth
herein and the rehabilitation of the affected or disturbed area.
3. At least five days prior to the commencement of the work
authorized hereby, the permit holder shall notify the Building
Department of the date on which the work is to begin.
4. Work conducted pursuant to this approval shall be open to
inspection at any time,including weekends and holidays by
the planning Board or its designated representatives.
5. Work pursuant to this permit shall take place from Monday
through Friday between the hours of 8:00 a.m. and 6:00 p.m.
6. Within 30 days after completion of all work authorized
hereby, the Applicant shall notify the Director of Building of
such completion. Upon such notification, the Building
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Department shall follow the procedures set forth in Town
Code § 114-9.
7. This permit shall be prominently displayed at the project site during
the undertaking of the activities authorized hereby
8. Final Restoration of the Wetlands must be reviewed, approved and
inspected by the Town Environmental Coordinator.
9. All wetland plantings must be installed by hand.
10. This permit shall expire one year from the date of its issuance.
3 PROPOSED LOCAL LAW
PUBLIC HEARING
The Planning Board held a discussion with regard to a proposed amendment of
the Town Code, which would add new Section 240-72 to Chapter 240 of the
Town Code, i.e., the Zoning Code. New Section 240-72 would make the defense
of a prior legal nonconforming use an affirmative defense in prosecutions for
violation of use restrictions under the Zoning Code.
In accordance with Town Code Section 240-92B regarding proposed amendments
to Chapter 240 of the Town Code the Town Board must refer such proposed
amendment to the Planning Board for its report and recommendation.
William Maker Jr. Town Counsel appeared and addressed the Board.
Mr. Maker stated that the purpose of the amendment is to shift the burden of proof
from the Town of Mamaroneck to the individual. Mr. Maker opined, that the
amendment no longer involved the New York Penal Code, although there is still a
possibility of incarceration up to 6 months. Instead, the current version of the
proposed amendment is based on authority under Section 268 of the New York
Town Law.
According to Mr. Maker, the law is not designed to make currently legal prior
nonconforming uses illegal. Instead, the purpose is to ease the Town's burden of
proof in disproving the defense of a prior legal nonconforming use in prosecutions
of use violations under the Zoning Code.
According to Mr. Maker, the concept behind the proposed shift of the burden of
proof from the Town to the land owner is that, as the law currently stands, if the
Town brings an enforcement action alleging a violation of use restrictions under
the Zoning Ordinance, and if the defendant asserts that the use in question is a
prior legal nonconforming use, the Town must disprove this defense beyond a
reasonable doubt. Because the Town may have limited records concerning the
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use at a particular location, this could amount to the impossible task of proving a
negative. On the other hand, according to Mr. Maker, the property owner may
possess tax records, for example, indicating the prior use thus enabling the
property owner/defendant to prove the defense by a preponderance of the
evidence.
Members of the Planning Board responded that, to the contrary, the Town may
possess more records relating to the use of the premises, particularly if the alleged
prior use goes back many years. Also, Board members noted that the Town has
more staff resources than the average property owner to do the research
concerning prior uses of the premises.
The Board noted as well that, although Mr. Maker claims that the current version
of the proposed Zoning Code amendment is not based on authority under the
Penal Law, it would still provide up to six months of incarceration. In the view of
several Board members, where such an amount of jail time is involved, it should
remain with the prosecutor to prove the elements of the violation or to disprove
any defense beyond a reasonable doubt.
Further, Board members expressed concern that a new buyer of a property at
which a use is ongoing could be unaware of the illegality of such use. Mr. Maker
responded that, in most cases where the purchase of property is financed through
a bank, a title report is prepared. Title insurers typically flag uses not in
conformity with zoning or for which there is no certificate of occupancy of
record. This would put the buyer on inquiry notice, in which case the buyer
should not be able to assert innocent belief in the legality of a use.
Both Mr. Maker and Mr. Ryan agreed that there is ambiguity in the wording of
Town Law Section 268, the suggested authority for the current proposed
amendment, with regard to the treatment of violations thereunder as
misdemeanors. This section of the Town Law states, "for purposes of conferring
jurisdiction upon courts and judicial officers generally, violations of this article or
of such local law, ordinance or regulation shall be deemed misdemeanors and for
such purposes only, all provisions of law relating to misdemeanors shall apply to
such violations." Although Mr. Maker believes this language is merely intended
to provide the Town Justice Court with jurisdiction to hear enforcement actions
under this section, Mr. Ryan suggested that there is authority for the view that this
language means that such cases must be prosecuted as misdemeanors, including
the usual allocation of proof burdens between the prosecution and the defense.
Mr. Ryan added that full criminal due process, including the "beyond a reasonable
doubt" standard for the prosecution might be waivable if the maximum
incarceration period were reduced to less than 15 days or incarceration were
eliminated as a penalty altogether.
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Mr. Rosenbaum summarized the Planning Board's objections to the proposed
Zoning Code amendment to shift the burden of proof to the defendant with regard
to the defense of a prior legal nonconforming use:
• The penalty of a possible incarceration for up to six (6) months is
too draconian for a zoning violation when coupled with shifting the burden of
proof onto the defendant (albeit with the lesser standard of proof of a
preponderance of the evidence);
• Further, the Planning Board members believe that the Town is in
as good a position, if not a better position, to gain access to relevant evidence in
situations where relatively new owners are concerned; and
• The Town is not currently facing a serious problem of non-
conforming use violations so as to require a change in the law at this time.
On motion, seconded and unanimously adopted, the Planning Board closed the
public hearing concerning the proposed amendment to add new section 240-72 to
the Zoning Code.
Based on all of the above, the Planning Board unanimously voted to report and
recommend to the Town Board that the proposed amendment not be adopted as
set forth below.
RESOLUTION
WHEREAS, on January 2, 2008, the Town Board of the Town of Mamaroneck
resolved to refer a proposed law (annexed hereto) to the Planning Board for a
report as required by section 240-92 B of the Mamaroneck Town Code (the
"Town Code");
WHEREAS, on January 4, 2008 the Town Attorney, William Maker, Jr.,
forwarded to the Chairman and Members of the Planning Board of the Town of
Mamaroneck a memorandum making such referral and explaining the purpose of
the proposed amendment;
WHEREAS, the proposed amendment would add a new section 240-72 to
Chapter 240 of the Town Code concerning Zoning (the "Zoning Code");
WHEREAS, the substantive provisions of proposed new section 240-72 read as
follows:
§240-72. Nonconformity as an affirmative defense.
In any prosecution of a violation of this chapter, the defense that either the use of
land or the use of a building was a lawfully permitted use at the time that this
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chapter was adopted or amended shall be an "affirmative defense" which the
defendant in such prosecution shall be obliged to prove by a preponderance of the
evidence;
WHEREAS, the purpose of the proposed new section 240-72 is explained as
follows:
Under the current Mamaroneck Code, if the Town prosecutes a violation of the
zoning ordinance and the landowner professes innocence on the ground that the
property is a nonconforming use or building, the Town is required to prove
beyond a reasonable doubt that the nonconformity did not exist before the
enactment of the zoning ordinance. It is nearly impossible for the Town to sustain
such a burden of proof in most cases. This local law shifts the burden of proof to
where it belongs - to the landowner—who would have to prove the existence of
the nonconformity by a preponderance of the evidence;
WHEREAS, a memorandum, dated December 21, 2007, by Town Attorney
explains that "the Town Board derives its power to provide a mechanism to
enforce its zoning laws from both section 10(4)(b) of the Municipal Home Rule
Law and section 268 of the Town Law;"
WHEREAS, both the Town Attorney and Planning Board counsel agree that
section 268 of the Town Law is ambiguous with regard to the procedures which
must be followed by the court in prosecutions under that section, including
specifically the required burdens of proof of the prosecution and the defense;
WHEREAS, the Planning Board believes that, in the case of a recent purchaser
of property, the Town would have an equal or superior capacity to develop
evidence concerning the use of a piece of land or a building;
WHEREAS, the proposed amendment would not reduce the possible maximum
penalty of incarceration for six-months upon conviction for a violation of the
Zoning Code;
WHEREAS, it is the Planning Board's belief that six months in jail is a serious
criminal penalty, whether or not a zoning violation is formally classified as a
misdemeanor or is merely to be treated as such for purposes of Justice Court
jurisdiction under New York Town Law section 268;
WHEREAS, in view of the seriousness of this available penalty for a violation of
the Zoning Code, the Planning Board believes that a defendant accused of such a
violation should be afforded all the procedural protections normally afforded in
the case of a prosecution for a misdemeanor; and
WHEREAS, the Planning Board is not aware of any ongoing problem in the
Town of accused zoning violators gaining acquittal by asserting a prior legal
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nonconforming use defense which the Town has been unable to disprove beyond
a reasonable doubt;
NOW, THEREFORE, BE IT RESOLVED that the Planning Board
hereby reports to the Mamaroneck Town Board that, for the reasons outlined
above, the Planning Board believes that the proposed amendment to the Town
Code which would add new section 240-72 designating the defense of a prior
legal nonconforming use as an affirmative defense in prosecutions under Chapter
240 would not further the purposes set forth in section 240-2 of such chapter.
BE IT FURTHER RESOLVED that the Planning Board therefore
recommends to the Mamaroneck Town Board that it not adopt the proposed
amendment to the Mamaroneck Town Code which would add new section 240-72
designating the defense of a prior legal nonconforming use as an affirmative
defense in prosecutions under Chapter 240.
ADJOURNMENT
The meeting was adjourned at 10:00 PM.
If anyone wishes to review the audio tape of the meeting of March 12, 2008, it will
be available at the Building department, after the certification is signed by the
chairman and filed with the Town Clerk.
Francine M. Brill, Planning Board Secretary