See also Staples for site plan issues relating to a self storage facility
Convalescent home/ 482 Underhill Ave. Town Board, 6-5-2018 Town Attorney Richard Abbate explained that he was recommending that the board vote to settle the lawsuit filed by the new owners of the sober home after the previous Town Board revoked the facility’s 2015 special permit. Under the terms of the settlement, the new owners agreed to drop a federal lawsuit charging the town with violating the Fair Housing Act and the Americans With Disabilities Act and asking for what could potentially result in hundreds of thousands of dollars in monetary and punitive damages. The settlement also covers the second lawsuit involving the revocation of the special permit. Under the terms of the settlement, the facility will be allowed to operate as a family without any restrictions or conditions, other than those that already apply to single family residences. During the Courtesy of the Floor portion of the meeting, and before Mr. Abbate’s comments, Susan Siegel, the person writing this summary, urged the board to be proactive and revise the Zoning Code to add a new definition of the word “family” and add a new special permit section that would cover sober homes. She gave the board copies of a NYS Department of State legal memorandum that offered suggestions for redefining the term “family.” During the second Courtesy, after Ms. Siegel raised the issue of a new definition of family again, some board members acknowledged that what constituted a family today has changed over time but they thought it would be difficult to arrive at a satisfactory definition. Supervisor Gilbert added that the board supported future state legislation that would regulate sober homes. During Courtesy of the Floor, Geri Schwalb asked about the status of the sober house and what the town was doing based on a recent article in the newspaper indicating that the facility was operating. In response, Supervisor Gilbert said that the building inspector has not been allowed entry into the facility and that he and the new town attorney were gathering more information about the issue. Councilwoman Roker said the town was reviewing some legal issues, but did not specify what they were. (Note: during a discussion on the drug crisis, it was noted that the NYS Senate will be holding a public meeting on the possible need for legislation regulating sober houses on Thursday, Feb 15 at Pace Unviersity in Pleasantville.) Town Attorney McDermott explained that the issue that was the subject of the public hearing was whether the owners had met the condition in the 2015 permit that said that the town had to be notified when there was a change in ownership and that the new owner had to apply for a new permit within 30 days. Noting that the property changed ownership in May, 2017 and that the condition had not been met, he said that there were grounds to revoke the permit. The attorney for the sober house argued that since the original owners, Mr. McCrossan and Mr. McGoldrick, were going to be operators of the facility and that the new owners were experienced operators of similar facilities, the condition had been met. He argued that the board was proposing to revoke the permit because of neighborhood opposition in an election year, adding that revoking the permit would violate the Fair Housing Law an the American With Disabilities Act. While Supervisor Grace commented on the differences between operating the facility as a family and the apparent shift to a commercial operation and called the issue a “land use issue,” the town attorney brought the issue back to whether the condition of the permit had been followed. The attorney added that adding the names of the original owners to the deed would not correct the situation. A resident who is also a lawyer and who had been involved in the drafting and review of the original conditions supported the legal basis for the town’s actions. The parents of the young man who resided at the facility and died from a drug overdose spoke about the problems associated with sober houses that did not have to comply with any standards or regulations. The hearing was closed and there was a unanimous vote to revoke the permit. The board set a July 18 hearing to revoke the special permit for the sober house.
Town Board, 2-6-2018
Town Board, 7-18-2017
Town Board, 6-13-2017
Town Board, 7-19-2016
Convalescent home/ 482 Underhill Ave.
Town Board, 6-5-2018
Town Attorney Richard Abbate explained that he was recommending that the board vote to settle the lawsuit filed by the new owners of the sober home after the previous Town Board revoked the facility’s 2015 special permit. Under the terms of the settlement, the new owners agreed to drop a federal lawsuit charging the town with violating the Fair Housing Act and the Americans With Disabilities Act and asking for what could potentially result in hundreds of thousands of dollars in monetary and punitive damages. The settlement also covers the second lawsuit involving the revocation of the special permit. Under the terms of the settlement, the facility will be allowed to operate as a family without any restrictions or conditions, other than those that already apply to single family residences.
During the Courtesy of the Floor portion of the meeting, and before Mr. Abbate’s comments, Susan Siegel, the person writing this summary, urged the board to be proactive and revise the Zoning Code to add a new definition of the word “family” and add a new special permit section that would cover sober homes. She gave the board copies of a NYS Department of State legal memorandum that offered suggestions for redefining the term “family.”
During the second Courtesy, after Ms. Siegel raised the issue of a new definition of family again, some board members acknowledged that what constituted a family today has changed over time but they thought it would be difficult to arrive at a satisfactory definition. Supervisor Gilbert added that the board supported future state legislation that would regulate sober homes.
During Courtesy of the Floor, Geri Schwalb asked about the status of the sober house and what the town was doing based on a recent article in the newspaper indicating that the facility was operating. In response, Supervisor Gilbert said that the building inspector has not been allowed entry into the facility and that he and the new town attorney were gathering more information about the issue. Councilwoman Roker said the town was reviewing some legal issues, but did not specify what they were. (Note: during a discussion on the drug crisis, it was noted that the NYS Senate will be holding a public meeting on the possible need for legislation regulating sober houses on Thursday, Feb 15 at Pace Unviersity in Pleasantville.)
Town Attorney McDermott explained that the issue that was the subject of the public hearing was whether the owners had met the condition in the 2015 permit that said that the town had to be notified when there was a change in ownership and that the new owner had to apply for a new permit within 30 days. Noting that the property changed ownership in May, 2017 and that the condition had not been met, he said that there were grounds to revoke the permit.
The attorney for the sober house argued that since the original owners, Mr. McCrossan and Mr. McGoldrick, were going to be operators of the facility and that the new owners were experienced operators of similar facilities, the condition had been met. He argued that the board was proposing to revoke the permit because of neighborhood opposition in an election year, adding that revoking the permit would violate the Fair Housing Law an the American With Disabilities Act.
While Supervisor Grace commented on the differences between operating the facility as a family and the apparent shift to a commercial operation and called the issue a “land use issue,” the town attorney brought the issue back to whether the condition of the permit had been followed. The attorney added that adding the names of the original owners to the deed would not correct the situation.
A resident who is also a lawyer and who had been involved in the drafting and review of the original conditions supported the legal basis for the town’s actions. The parents of the young man who resided at the facility and died from a drug overdose spoke about the problems associated with sober houses that did not have to comply with any standards or regulations.
The hearing was closed and there was a unanimous vote to revoke the permit.
The board set a July 18 hearing to revoke the special permit for the sober house.
Nick Toumanios reminded the board that he had spoken about a month ago about the long overdue meeting between residents and operator of Constellations Recovery that was a requirement in the facility’s special permit. He also inquired about changes that appeared to be going on at the facility. And Al French wanted to know why he hadn’t gotten a response to an earlier email to the board requesting an emergency meeting regarding the changes which looked like the facility may have been abandoned. He added that based on a brief conversation he had with the supervisor about a week ago who said he had had a conversation with the owner, he thought that the owner may be seeking state certification from the Office of Alcoholism and Substance Abuse Services (OASAS) as a “residential design conversion.” He said he had checked with OASAS but to date no application has been filed, but if one was, then the agency would want input from the town and residents.
Mr. French said that residents are still waiting to learn the status of the investigation into the death last year at the facility.
Town Board, 6-7-2016
Referring to the meeting residents had with the Town Board last December after the death of a resident at Compass Westchester, Nick Toumanios reminded the board that at the meeting, the board agreed to meet with residents to review whether the facility was complying with the conditions of its special permit. To date, he said, no meeting has taken place.
In a related issue, Susan Siegel (the person writing this summary) urged the board to take action to support pending legislation in Albany that would establish standards for the operation of sober homes which are currently unregulated. She reminded the board that last year the board passed a resolution urging Senator Murphy and Assemblyman Katz to support the legislation and she asked them to adopt a second resolution this year while the legislature was still in session
In an item not on the public meeting agenda, the board met with Tom McCrossan for an update on the facility. (According to the resolution granting the special permit, there was supposed to be a review of whether the applicant had complied with all the conditions of the resolution, as well as a general six month review.) Although the discussion took place as part of the board’s closed executive session, Supervisor Grace said that the meeting was “open” to the public, to which I replied: how open is open when the public is not told that the discussion will be taking place.
In a memo to the board, the building inspector reported that the facility has complied with all the conditions of the permit. Mr. McCrossan said there have been between 5-7 people at the facility and that after the recent incident involving a female resident, the decision was made not to have female residents. Two residents are/have received scholarships to offset the cost of their stay at the facility. One resident has been at the facility for six months. Some have jobs and one is attending school.
On the agenda for discussion was a revised draft of the zoning amendment I had put together incorporating comments from several advisory boards. The discussion on the substance of the text never really took place as from the onset Supervisor Grace and Town Attorney Koster repeated their opposition to any new text that dealt with sober living residences. Calling the draft “garbage,” the supervisor said that the current zoning code that allowed sober living residences as convalescent homes was “perfect” and Ms. Koster said she had problems with almost every sentence and that the law would not stand up to judicial scrutiny. When I suggested that the draft be formatted into a local law and advertised for a public hearing so that the public could comment on it, Ms. Koster said she could not do it because the draft was so wrong. She also cautioned that comments about “those people” that might be made at a public hearing would hurt the town if the law was ever challenged. When she said she would consider sending the town’s insurance company a copy of the draft law, I asked why since there was no pending lawsuit challenging the law that was still in draft form.
After I said I would do the formatting, I made a motion to proceed with the local law but the motion was defeated 2-3 with only Councilman Patel and myself voting for it. Supervisor Grace said the only reason I was pursuing the amendment was because I had made a campaign promise to do so.
In a 4-1 vote, with Supervisor Grace voting no, the board referred out for comment draft language for a proposed new special permit for a broadly defined “community care facility” that would provide temporary transitional housing for people recovering from an illness but which would not provide any on site medical services. The definition would cover any future sober living home.
I explained that after the board receives comments on the draft, it will work on a revised draft that will be the basis for a proposed local law that will be subject to a public hearing. Residents wishing to comment on this early draft are encouraged to submit their comments to the town clerk. Copies of the draft are available from the clerk’s office or by emailing me directly at email@example.com.
In response to the supervisor’s earlier comments about not limiting the special permit to “sober living residences,” I presented the board with a revised definition for a “community care facility” that included any illness, infirmity or sickness but left in that the facility was for temporary housing, didn’t provide any on-site medical services and was not licensed. The supervisor took exception to the new definition, however, and repeated his position that the current code is adequate and that he saw no need for any new permit section, no matter what it was called. He felt that even with a broader definition, the permit was aimed at sober living residences which he did not appear to want to regulate beyond what is already in the code.
Although I tried to proceed to review specific provisions of the draft dealing with parking, site plans, buffering and other land use issues, the supervisor kept coming back to his basic belief that the current code adequately addressed these issues. The result was that there was no substantive discussion about the other provisions in the draft code.
I explained to the board that my ultimate goal was to draft a local law that would be referred out to the town’s advisory boards and then be subject to a public hearing. But that if the board never got to the point of agreement on what the law should say, we could never get to a public hearing and get input from the community. I finally said that rather than waste the board’s time on additional fruitless meetings, I would proceed only if I determined that at least three board members were ready to proceed to a local law stage.
Councilman Bernard and I shared a revised draft of language that would establish a new special permit for sober living residences (SLRs). The draft was prepared in consultation with the building inspector. Tuesday afternoon, Town Attorney Koster shared a marked up copy of the text with board members.
Supervisor Grace started the discussion by saying that he agreed with all of Ms. Koster’s comments and was prepared to walk out of the meeting; he changed his mind, however, and stayed and participated in the discussion.
Both Ms. Koster and Supervisor Grace contended that it would be illegal to have a special use permit specifically for a SLR because it would be singling out a specific group. They argued that the term “convalescent home” was adequate and again that a new special permit was not needed because the board could impose whatever conditions it wanted to a permit for a convalescent home. The supervisor again said that an SLR could not open as a family.
Councilman Bernard made a point of saying that he was not against the concept of a sober house but that the use needed to be regulated; a SLR use is different from a family use, he said. I repeated my position that the term “convalescent home” was outdated and inadequate and also that additional guidelines for reviewing applications were needed.
The discussion, which became contentious at times with Supervisor Grace telling me “that you don’t listen,” ended without any review of the individual provisions in the draft text.
In a continuation of an earlier discussion (see Town Board, April 14, 2015), Supervisor Grace repeated his position that the current code is adequate, no changes are needed, a sober living home could not open as a family and that the term convalescent home is still a valid term. He said that if an applicant wanted to make exterior changes to the property, the board could regulate the changes. Councilman Bernard said that while he wasn’t ready to consider any changes in the definition of the term “family” he favored a new special permit section for a sober living home in order to preserve the character of a residential neighborhood. He noted that unlike a family, a SLR would have deliveries and staff coming and going. Councilman Diana did not appear interested in moving forward on the special permit legislation. Councilman Patel and I support the need for the amendments.
Town attorney Koster advised the board that before it made a decision whether or not to proceed, she had some legal advice to give the board but she would only do so in a closed session. Because Councilman Bernard wanted to hear her advice, the discussion was tabled so that Ms. Koster could give her advice in closed session after the conclusion of the closed session negotiations with Spectra (see below). After Ms. Koster gave her advice, the board then went back into open session and Councilman Bernard said he was ready to proceed with the special permit amendment.
It was agreed that Councilman Bernard and I would meet with the building inspector to go over my draft amendments. After that review, we would return to the board for a follow up discussion and if there was a majority on the board to move forward, the new draft would be referred out to various boards and agencies for comment.
At Courtesy of the floor, Jay Kopstein asked about the status of changes to the zoning code relating to the definition of family and convalescent home. In response, I said that the board had an inconclusive discussion on possible amendments at its April 14th meeting and that more information on the issue would be available on my personal web site, www.yorktownbettergovenrment.org.
I presented a slightly modified draft of suggested changes to the zoning code, including a new definition of the word “family” and text for a new special permit that would encompass, but not be limited to, sober living residences.
Supervisor Grace repeated his position that there’s nothing wrong with the existing code requirements for a convalescent home and that an SLR would not be allowed to open as a family but would have to apply for a special permit as a convalescent home. I disagreed with both points, pointing out that under the existing definition of family I could open an SLR in my house and by not calling it a convalescent home, not be required to get a special permit.
Both Supervisor Grace and Town Attorney Koster said that the draft new definition of family I was suggesting that required unrelated individuals living as a single housekeeping unit to qualify as the “functional equivalent of a family” was unconstitutional. Ms. Koster also said the definition was geared to living arrangements such as fraternity houses (which Councilman Diana, in his only comment during the discussion, referred to an “animal houses,” ) and wasn’t relevant for Yorktown. I cited a legal memorandum from the NYS Department of State on the definition of family that was the basis for my draft definition but Ms. Koster dismissed the memorandum as “only advisory.”
In response to Councilman Bernard’s concerns about the ability to issue special permits with conditions, Ms. Koster advised that any special permit requirements had to be based on land use issues such as parking requirements and setbacks, a point I did not dispute because those were the type of provisions I included in my draft.
Councilman Bernard also raised the issue of whether SLRs should be allowed in residential zones that typically are on small lots. When he suggested that future SLR applicants follow the group home procedure that provides for a town committee to suggest alternate locations, Supervisor Grace indicated his disapproval of the bill currently in the state legislature that would set up a task force to study the need for possible legislation regulating SLRs. He warned that any such legislation was likely to be modeled after the Padavan law that regulated group homes and which would leave the town with no option but to accept more SLRs.
At my suggestion, Ms. Koster will prepare a legal memo outlining why she believes my proposed amendments are either unconstitutional or not necessary. While Supervisor Grace said the memo was not needed, Councilman Bernard said he wanted one. Ms. Koster said the memo could take at least a month to prepare.
In a 3-2 vote, with Councilmen Bernard and Patel voting no, the board approved a resolution granting a special permit for a convalescent home to Compass Westchester, paving the way for the company to open a sober living residence at 482 Underhill Ave.
The resolution is the exact same resolution that failed to get three votes when it was voted on at the January 20, 2015 meeting. The vote took place at about 11:30pm (and after two closed executive session discussions) and there was no indication on the agenda that there would be a vote on the Compass Westchester application.
Neither Councilmen Bernard or Diana explained why they voted as they did.
Prior to voting, I explained why I was voting in favor of the resolution:
Given the options before the board, I voted for what I believed would put the strongest possible conditions on the SLR. Given the constraints of the law on what types of conditions the town can put on special permits, these conditions do the best possible job of protecting the neighbors and the town. The resolution and the conditions are not perfect. But, as I explained before, the town has no legal basis for denying the permit. And, the strongest possible conditions are in the January 20th resolution. Other options could have resulted in either no conditions or fewer and weaker conditions –- and protracted and costly litigation that I did not believe the town could win.
It also needs to be remembered that without the convalescent home special permit, Compass Westchester could have opened its SLR as a “family” without any conditions. In fact, the company has been working for weeks to ready the facility for such a spring opening.
In two related matters:
1. I plan to ask Supervisor Grace to put the proposed SLR related amendments to the zoning code on the agenda for the first work session in April. It’s my hope that the reconstituted board will be open to discussing the amendments.
2. The board unanimously passed a resolution supporting the passage of Senate Bill # S-03989 that would create a task force to study the need for possible state regulation of SLRs.
As I see it, there are two interrelated parts; changing the definition of family and creating a new special use permit that would cover sober living residents and possibly other congregate living arrangements that aren’t “families.” Alternately, the town could continue to use the term “convalescent home” but if it chose to do that, then my position is that a new definition of the term is needed.
Supervisor Grace continues to believe that no changes need to the made to the existing code because he doesn’t see a problem, including the definition of “family” which was the focus of most of his comments. He repeated concerns he raised last week that my suggested definition was far too intrusive into the lives of town residents. He also made a strong plea for allowing future sober homes, leaving the inference (at least to me) that he saw my proposed zoning amendments as a way to bar future SLRs, something I strongly refuted.
I offered again to work with the supervisor on a completely new draft of the amendments but he was not interested.
I also offered to drop any changes in the definition of family and focus only on the special use permit. He was not interested.
In a related matter, during Courtesy of the Floor, John Nowak advised the board that Compass Westchester was in the process of getting 482 Underhill Avenue ready to open as a “family” and he asked that the building inspector look into whether the company had gotten the proper pool permit, legalized some existing bathrooms and an illegal second bedroom and upgraded its septic tank. Commenting on the definition of family, he said that to his way of thinking, 12-14 persons living in a residence on a temporary basis did not constitute a family.
As a follow up to comments I had made during the Compass Westchester hearings about the need to update the zoning code, I presented the board with a draft of suggested amendments to some of the code’s definitions, inicluding the definition of family, as well as a new special permit for a use that I tentatively called a “community residential facility.”
Supervisor Grace rejected the entire document on the grounds that no changes in the zoning ordinance were needed , that many of my proposed amendments were unconstitutional and that in general hey just didn’t make any sense. He said my proposed amendments would require the building department to intrude into the private lives of residents and likened the requirements to having people in “brown shirts” keeping tabs on people. In response to his question why the amendments were even needed, I gave a simple answer: to protect the residential character of our neighborhoods. I also said the changes were needed to avoid a repetition of the year long controversy we had over Compass Westchester and the possibility that future sober living homes could open up in single family homes under the guise of being families without any town regulation or control.
Rather than rebut the supervisor’s comments point by point, I posed a simple choice: One option was to do nothing and leave the current code intact. The second option was to work together to redraft my document in an effort to arrive at a compromise set of amendments. The supervisor’s choice was clearly to do nothing and wait until there was a five member board before possibly taking up the issue again.
In a separate action relating only to Compass Westchester, Supervisor Grace made a motion on a resolution that would deny the special permit. There were no seconds to the motion. I explained that the minutes of the January 20, 2015 meeting indicated that the board had voted on the application, that based on a 2-1 vote, the motion was not approved and therefore it was denied, and that I did not think a second vote was necessary.
Supervisor Grace and Town Attorney Koster explained that according to current law, the 2-1 vote on January 20 could be viewed as the board not taking any action as opposed to it being a denial, a position that was supported by the Compass Westchester attorney, but challenged by Al French and a letter from the attorney representing the homeowners who have challenged the application. Ms.Koster did acknowledge, however, that the case law is “messy” as some of it relates to Zoning Board decisions and others to Planning Board decisions. None related to Town Board decisions. Both she and the supervisor said there should be a second vote on the application.
I stated my position that I believed the 2-1 vote was a valid board action and that a second vote was not needed.
When the supervisor told Councilman Patel that he needed to state his reasons for voting against granting the permit, the councilman replied that he had no comment.
I advised the board that based on earliler comments I had made, I have been working on revisions to the zoning code as they relate to the definition of family and also the need for a new special permit for community residential facilities. I asked that a discussion of the proposed revisions be put on the a genda for the February 10 work session.
On a motion made by Supervisor Grace and seconded by me, the motion to approve the permit failed in a 2-1 vote with Councilman Patel voting against it. Initially, Councilman Patel said he was not prepared to vote during the meeting and said he wanted more time, but after a short break, he changed his mind and voted.
At the beginning of the discussion, Supervisor Grace read the revised version of the 6-page approval resolution that had been discussed at last week’s work session. The only additional changes that were made at the meeting dealt with clarifying the architectural drawings that showed the current number of bedrooms and not the proposed number that the applicants could make subject to getting a building permit.
I read a statement explaining why I voted to approve the permit after initially drafting a resolution to deny it.
After the vote, there was no public comment from representatives of Compass Westchester .
I presented the board with a completely new resolution to approve the Compass Westchester special permit application. I explained that while my initial thinking was to deny the application, my position changed once I contacted the Department of Health and it became clear that the department stood by its earlier decision to approve the septic system for a convalescent home. Once the septic issue was settled, I concluded there were no defensible grounds for denying the application. I then proceeded to draft a completely new approval resolution, with conditions, as I was not satisfied with the supervisor’s draft.
At the meeting, the board reviewed my draft and made some minor changes to some of the conditions. A revised draft will be voted on at the January 20 meeting.
As a separate but related discussion, I suggested that the board consider a six month moratorium while it amended the zoning code to address the problems in the code that came to light as a result of the Compass Westchester application. The supervisor appeared not to be interested in a moratorium but did say he would consider changes to the zoning ordinance that would change the definition of a family and also add a new special permit section to the zoning code with standards and requirements. He remained skeptical, though, that this could be done given the protected class status of recovering addicts.
Supervisor Grace read out loud an 11 page draft approval resolution. Councilman Patel and I both stated that because we had received electronic copies of the resolution late in the afternoon and hadn’t had time to read and review it, we weren’t prepared to discuss the resolution that evening but would be by next week, leaving the town one additional week before needing to vote on the resolution. (By state law, the board is obligated to render a decision within 62 days of the close of the public hearing.)
While not prepared to discuss the specifics of the resolution, I did note that the conditions that were part of the resolution appeared to be similar to the conditions originally proposed by Compass Westchester and did not contain any of the suggested changes residents had made in October.
I also informed the board that based on a phone conversation I had had with the Department of Health, there was an outstanding issue of the indoor pool and whether the applicants would have to seek a public use pool permit as opposed to the type of permit required for single family homes. The department is still waiting for additional information from the applicants.
I also advised the board of my phone conversation with the DOH seeking clarification on several issues residents had raised during the public hearing about the adequacy of the applicants’ septic plans.
Despite the late hour (around 1am), the board went into work session mode and discussed the draft denial application that I had prepared. The denial was based on the applicant’s failure to meet certain standards in the Zoning Ordinance and other deficiencies in the application.
Supervisor Grace and Town Attorney Koster took turns rejecting the provisions in the draft saying that they were either not applicable or not legal. Calling attention to the fact that the town’s insurance broker was in the room and listening to the discussion, they cautioned me (and by inference Councilman Patel) that a denial would likely result in a federal lawsuit which the insurance company might not cover. The supervisor added that if that happened, he would not vote to indemnify either of us, meaning that the town would not cover our legal costs in the event of a lawsuit He urged us to be careful in our decision.
On the related issue of making changes to the Zoning Ordinance that would change the definition of a convalescent home and add a new special permit with standards, both Supervisor Grace and Ms. Koster said there was no way that could be done; Ms. Koster said that many such attempts had all been struck down by the courts.
Bringing the discussion to a close, I said I would take the comments and cautions under advisement. I also asked to see the draft of a “grant” resolution that the supervisor said he was going to prepare.
According to the town attorney, the board has until January 20 to make a decision.
First a clarification. The meeting agenda should have listed the item as “for discussion,” not “decision” as no draft resolution had been prepared and was ready for a vote.
During the discussion, I went through an outline of my reasons for denial. Specifically, I cited issues where I believed the current application did not meet some of the general standards for granting a special permit; most of the issues had been discussed at the November 25 meeting. In response, Supervisor Grace said that my concerns either had no merit or could be corrected by making the corrections a condition of granting a permit. My position, however, was that, based on the town code, the special permit standards had to be met prior to granting a permit and that any conditions attached to the permit were meant to assure continued compliance with the standards. Town Attorney Koster also said that some of my concerns were not valid.
The discussion ended with Supervisor Grace saying that he would work with the town attorney to prepare a “grant” resolution with conditions and the attorney would also draft a “denial” resolution based on my outline. Asked if she could do both, the attorney said yes, Drafts of both resolutions will be reviewed by the board at a subsequent meeting.
Councilman Murphy, who appears to hold the deciding vote on a potential denial resolution, did not indicate whether he was for or against granting the permit. He did indicate, however, that he was concerned that the current code left the door open to more sober living residences anywhere in town. This led to a discussion of whether the town should amend the zoning code in two phases to first eliminate the term “convalescent home” which has proven to be outdated and ambiguous and then, to add a new special permit for sober homes based on additional research as to what would be appropriate standards that would not violate the Fair Housing and Americans with Disabilities laws.. When Supervisor Grace felt that such a permit would be discriminatory and unconstitutional, my response was that additional research was needed on possibly creating a broader category for this type of transitional temporary housing.
Supervisor Murphy asked the board members what their positions were regarding the special permit request. As he had done before, he outlined three options: granting the permit, granting the permit with conditions, and denying the permit. He repeated that there had to be a legal basis for denying the permit.
Councilwoman-elect Siegel said she was prepared to deny the permit on the legal ground that the Zoning Ordinance did not legally designate the Town Board as the approving authority for special permits for convalescent homes. In response, Supervisor Grace said that when the Zoning Ordinance was silent on the issue of which board was the approving authority, by default, it automatically went to the Town Board. Ms. Siegel said she wanted additional legal advice on this issue.
Ms. Siegel also outlined a series of unresolved issues that related to whether the current application met the standards for granting a special permit. Specifically she referred to alleged current violations on the property, the unresolved septic issue and the need to clarify what standards, single family residence or multiple dwelling, applied to a convalescent home in a single family residence. She said she wanted clarification on these issues from the DEC and the building inspector before proceeding. Supervisor Grace dismissed these issues for a variety of reasons.
When the supervisor said he could begin drafting an approving resolution, Ms. Siegel suggested that given two opposing views on the board, he not proceed with such a resolution. Councilman Murphy indicated that he had some unanswered questions but did not indicate which way he was leaning on the issue.
Citing a series of unresolved issues and incomplete information, several residents asked the board to deny the special permit. Issues cited included:
· Missing map of the existing septic fields and adequacy of the existing system
· Whether a DEC SPDES permit was required
· Fire code issues
· Site plan issues concerning landscaping, parking and bedroom counts
· The legal status of Compass Westchester
After listing all the problem areas and missing or incomplete information, John Nowack stated the delays in moving the application forward were caused by Compass Westchester and not the town. Citing a recent house sale at 512 Underhill Avenue that sold for $40,673 less than the amount of a pending sale, Al French disputed the applicant’s claim that the sober house would not affect neighboring property values.
Considerable time was spent on the septic issue with Supervisor Grace explaining that the approval of the current system was entirely up to the county Department of Health and that the town had no control or enforcement power over the issue. When Nick Toumanious stated that the Department of Health had made an honest mistake in approving the plan and took issue with a written comment from Mr. Capellini that the time to challenge an alleged mistake had passed, the town attorney, speaking in general terms, advised him that there are time limits for challenging certain government actions. Supervisor Grace did say, however, that he would send a letter to the DEC to find out if Compass Westchester would need a SPDES permit.
Mr. Capellini said the applicant had no further information to submit and stood by its record. He reminded the board that if it granted the special permit, its actions did not legitimatize the actions of other potentially involved agencies. He repeated that the Department of Health had approved the applicant’s septic system.
After the board voted to close the hearing, Supervisor Grace said the board was bound to accept the ZBA’s determination that the sober house was a convalescent home (the papers on the appeal of the ZBA decision will be fully submitted by Monday) and that if the board wanted to deny the permit it had to articulate legitimate reasons for a denial. He said the board will begin to review the documents that have been submitted at the November 23rd work session to “get a feel” for where members stood on the issue but that the plan could change depending on when Susan Siegel was sworn in as a new board member. He outlined the board’s options as approve, deny, or approve with conditions.
During courtesy of the floor, George Brink asked if the board would consider adopting a moratorium on new sober house permit applications until a new section governing sober houses was added to the zoning code and to prevent a potential flood of new applications based on the existing ordinance. In response, Supervisor Grace said he was loathe to adopt a moratorium because they suspend property owner’s rights and are very easy to attack. Councilman Murphy thought Mr. Brink’s comments about taking a proactive approach made a great point.
The board reviewed the Planning Board’s comments on changes to the parking and landscaping plans and appeared in general agreement with all the recommendations except the exit to French Hill Road.
One issue left unresolved was identifying, on the site plan, the actual location of the septic fields so that any planned conservation spaces did not encroach on the fields. Whenever the septic system came up, the applicant reminded the board that Compass Westchester has already received county Department of Health okay for the septic system. Nick Toumanios, a professional engineer, said that he had been unable to obtain copies of the septic field maps from the Department of Health and that the department’s approval was based on old regulations. Supervisor Grace said the town had no say in the septic issue.
The applicant will submit a revised site plan showing the desired changes. Over the objections of Mr. Nowak, Supervisor Grace said there was no need to refer the revised plan back to the Planning Board.
The applicant stated that the disputed stockade fence was on his property and that except for a portion that had been repaired by the abutting property owner, the property’s prior owner had installed the fence. He said the privet hedge was also on his property.
Mr. Nowak asked if, based on his comments at a prior hearing, the Fire Advisory Board or fire inspector had checked into the possible need for sprinklers in the buildings. Supervisor Grace said they had not looked into the issue but that he would take care of this. He didn’t think sprinklers were needed.
Pia Riverso went through the list of 19 conditions Compass Westchester said it was willing to agree to, as well as the proposed House Rules and suggested where residents wanted changes. Among those concerns were:
· how the town would enforce the conditions
· how many times a resident could violate the house rules before being removed
· the need for the residents to be covered by some type of liability insurance coverage
· the installation of video surveillance cameras to protect both the sober house and neighbors.
Supervisor Grace appeared to have no issue with some of the suggestions but also appeared to dismiss others as not feasible. Ms. Riverso offered to sit down with the applicant and a representative of the town to work out conditions acceptable to all parties. The applicant will provide written responses to Ms. Riverso’s document.
Supervisor Grace said he understood the concerns the residents had and was committed to holding the applicant’s feet to the fire regarding enforcement and that the facility had to be operated properly. He made a strong appeal for the need for a sober house.
In response to a comment from Ms. Riverso regarding how the property would be assessed once it was used for a profit making business, Supervisor Grace explained that after a special permit is issued the assessor’s office typically reassesses the property based on the new use.
Dr. Washton, the applicant’s addiction consultant, made a statement about the value of sober living residences and acknowledged that while some operators have very positive records, there have been problems with others.
In response to Ed Ciffone’s question whether granting the permit would set a precedent for future applications, Councilman Murphy said that each application would be considered on an individual basis. And, in response to a question from another resident regarding amending the zoning code to add a special permit specifically for sober houses, Supervisor Grace that doing so would run into legal problems.
Al French presented the board with a list of seven reasons, mostly citing provisions of the zoning code and the Comprehensive Plan, as to why the board could and should deny the permit.
Acknowledging the concerns of residents, Supervisor Grace said that all future board deliberations on the application would be done in public. When he made a motion to close the hearing, Councilman Murphy objected saying that he wanted it kept open so that he could get more input on some unresolved issues, such as the septic fields. When Mr. McCrossan, the applicant objected and reminded Mr. Murphy that all the information he needed about the septic issue was in the file and that other issues raised by the residents were not relevant, Mr. Murphy disagreed, saying that the issues were not irrelevant.
In a compromise gesture, the board voted to close the public hearing for public comment but adjourned the hearing. (NOTE: In a conversation with Town Clerk Alice Roker on Thursday, October 23rd, Ms. Roker said that a public hearing could not be closed for some and left open for others. She said the official minutes will state that the hearing was adjourned.)
Mr. Fon explained that the item was on the board’s agenda as a referral from the Town Board to look at only parking and landscaping issues and nothing else.
The applicant, Mr. McCrossan, explained that there would be 3-5 cars on site at most and he didn’t see parking as an issue . Two or three cars would be for staff, plus 2 vans (SUVs with no markings) to transport residents. The board, however, wanted to see more parking in the event visitors came to pick up and drop off residents. After considerable back and forth, the board said it would recommend to the Town Board that the five spaces shown on the site plan be increased to six active spaces and that the plan include an additional six conservation spaces (spaces marked on the plan but not actually constructed until they are needed.). Possible locations for the conservation spaces were at the top of the grass area abutting the “U” driveway and along one side of the property. It was pointed out that the property’s septic system is under the grass area and the exact location of fields was not known. The board also indicated that staff parking should be to the side/rear of the main house.
The board will also recommend that the chain link fence at the rear of the property be replaced with a more attractive fence. There also appeared to be some confusion as to whether Compass Westchester or the abutting property owner to the east owned a stockade fence and privet hedge along the property line and which property owner was responsible for maintaining the fence and shrubs..
The board reiterated its position from last December that for safety reasons they would like to see an exit to French Hill Road, even though they acknowledged that area residents would lilkely be opposed to the idea.
Also discussed was the applicant’s consent to a condition in the special permit that would state that the permit goes with the owner of the property and not with the land.
A good part of the hearing was devoted to the legal arguments surrounding the Town Board’s role in approving the permit and the legal constraints under which the board could, or had to act.
Supervisor Grace explained that the board had to abide by the ZBA’s determination that the sober house was a convalescent home. As such, he said the applicant was entitled to a special permit if he met the requirements of the code regulating special permits. The board, he said, has little discretion when it comes to approving or denying special permits; if the application meets the requirements, we can’t deny it. He added that there were no requirements in the code that said the applicant must have certain experience, or what types of residents could be in the house. He also pointed out that the sober house could qualify as a “family” and as a “family”, it would not need a special permit and that the town could not place conditions on an “as of right” use. Going the special permit route, he said, was actually better for concerned residents because it allowed the town to put conditions on the permit. A family, he said, could be any collection of people and the town can’t prevent them from living together, except to the extent that they aren’t breaking any other law, such as using heroin.
The supervisor urged concerned residents to review the 19 conditions the applicant has said it will abide by. Residents, however, asked who and how those conditions would be enforced.
Mr. Nowack (sp?) raised the legal issue concerning the accessory buildings on the property that were built before the zoning code was adopted in 1932 and not do meet current zoning setback or parking requirements but which are considered “pre-existing non conforming uses.” It was his contention that if the use of the property changed, and he believed that the sober house use was a change of use from a single family residence, the board did not have to make the non conforming uses legal. Supervisor Grace, however, did not see the residential use as changing.
After Mr. Nowack pointed out that the Planning Board had never reviewed the modified site plan, the board agreed to refer the new plans to the Planning Board – which meant that the public hearing had to be adjourned and could not be closed.
Robert Davis, one of the two lawyers representing the applicant, went through the four standards for approving special permits in Section 300-36 of the zoning code. The standards basically address the issue of whether the proposed use would be in harmony with the existing district and not cause any adverse impacts. Going through each standard one by one, he explained that the sober house met each standard.
George Brink spoke about an article 78 lawsuit that has been filed by some town residents challenging the ZBA decision. He said that a part of the lawsuit involved a lack of transparency on the part of a town employee. Initially, the Town Board didn’t want to let him continue his comments, but decided he could continue as long as he did not mention the name or job title of the employee.
Robert Gironda asked the board to reach a decision on the special permit application sooner than later so that in the event it was granted, the homeowners who filed the article 78 against the ZBA could combine a challenge to the Town Board’s actions in one lawsuit.
In conclusion, Supervisor Grace said he was leaning more towards approval than denial.
The board voted to advertise the reconvening of the public hearing for October 7.
The board ruled, 3-1, that the Compass Westchester application met the definition of “convalescent home” as defined in the Zoning Ordinance (see below) and therefore was entitled to request a special permit from the Town Board to operate a sober home in a residential district.
Technically, the vote was a denial of an appeal by two homeowners of the building department’s December, 2013 ruling that the sober home qualified as a convalescent home.
The board rejected the arguments of the homeowners that it should look beyond the words of the zoning code and do a “smell” test that would have differentiated between the traditional use of the term “convalescent care” and what was being proposed.
Click here for a copy of the ZBA’s 12 page determination.
After more than an hour of discussion between the five board members, the board voted to have the attorney draw up a resolution for consideration and a vote at its next meeting that was consistent with its deliberations.
Because the law states that if the zoning board does not render a decision by 62 days from the close of the public hearing, the application is considered denied, and the board’s next meeting, scheduled for July 24, will be 63 days, the board advised Compass Westchester to sumbit a letter requesting an extension of time.
At the heart of the discussion was whether the proposed sober house met any of the three criteria in the zoning ordinance that defined either a convalescent home or nursing home:
1. serves three or more persons
2. provides shelter
3. serves persons afflicted with, suffering from, or convalescing from a disease, infirmity or ailment
Citing the phrase “once an alcoholic, always an alcoholic” and testimony at the public hearing that addiction was a brain disorder and therefore a chronic disease that always left the person vulnerable to relapse, at least three board members appeared to agree that the third criteria applied to the sober house. There was no dispute that the proposed use met the first two criteria.
Although there was additional discussion about the second section of the zoning code that included a different, more stringent definition of a nursing home, once three members appeared to agree that the sober house met the 3-criteria definition, the second nursing home definition became moot. Most board members disagreed with the single member who suggested that the code’s two definitions of nursing home left the door open to two types of nursing homes, one that was licensed by the state and met stringent standards and one that simply met the 3-criteria definition.
All agreed that assuming the sober house met the definition threshold, it qualified for the special permit, and that it would be up to the Town Board, which is the approval authority for the special permit, to apply the general provisions regarding special permits to the application. It was also pointed out that if the sober house was not considered a convalescent home, and therefore was not eligible for a special permit, the proposal could be considered a “family” and could operate in a single family house “as of right” without any regulation.
In general, the consensus of the board was that the zoning provisions were ambiguous but that it was the board’s task to interpret what was written and not rewrite the code which was a legislative function of the Town Board. The board’s attorney also stated that based on case law, where there is ambiguity in the code, the board has to side with the applicant, in this case, the sober home.
Dr. Arnold Washton made a presentation describing the therapeutic value of the sober house concept and how this fit the definition of a convalescent home. In questions from the board, the attorneys for both sides stated that recovering from addiction is an ongoing process and both sides referred to the video of the 1997 zoning change to reinforce their positions.
Mr. Gregory stated that he had no involvement in writing the building inspector’s March memo.
The board closed the hearing but reserved decision.
In a 3-1 vote, the board adjourned the public hearing to a future date to be determined. In voting no, Supervisor Grace said he thought the hearing could have been reconvened that evening.
During Courtesy of the Floor a resident called attention to what he said were deficiencies in the site plan as well as code enforcement issues, but he was advised that his comments should be made when the public hearing reconvenes. Supervisor Grace said he would look into the issue.
In the reconvened hearing, lawyers for both sides of the issue made the following points:
Relevance of 1997 zoning code change
Both lawyers had viewed the DVD of the meeting that added section 300-42 to the code and both had prepared transcripts which were provided to the board.
Based on the transcript, Mr. Sirignano argued that the discussion indicated the board considered that convalescent homes and nursing homes were not two separate uses and that the term convalescent home was outdated. However, the term convalescent was left in the code, and also that that the term convalescent home was included in the signage provisions in 300-42. He argued that the legislative intent in 1997 should be taken into consideration.
On behalf of Compass Westchester, Mr. Capellini argued that convalescent homes were left out of section 300-42 because they were not regulated by the state and Mr. Davis added that when the meeting DVD is viewed, it shows Supervisor Copper striking out the words “convalescent home”; it was his contention that the printer had inadvertently left the words in the text when the code was printed. He also pointed out that the exchange between Ms.Cooper and then town attorney Michael Grace about the differences between convalescent homes and nursing homes was inconclusive.
Town Attorney Jeannette Koster advised the board that the transcript provided by Mr. Sirignano, while part of the ZBA record, was not an “official” transcript and that the town, on its own, had prepared a transcript of the DVD and would be submitting it to the ZBA.
Building Inspector’s March, 2014 memo
In response to questions raised at the March ZBA meeting about who wrote the lengthy March memo, Mr. Sirignano advised the board that he had an affidavit from a resident, George Brink, stating he had heard ZBA member Bill Gregory say to Mr. Winter that he had helped him with the memo. Given the affidavit, Mr. Sirignano raised the issue of Mr. Gregory’s impartiality. (Mr. Gregory was not at the meeting.)
However, later in the hearing, Town Attorney Jeannette Koster advised the board that she had assisted Mr. Winter with the memo.
How to interpret the Zoning Code
Both sides agreed that the law should be followed, but they differed on how to interpret the law.
Mr. Sirignano believed that the code, particularly the 300-3 definition section, should be interpreted with some common sense and with what he called the “smell test”: because there was no medical component to the sober house, it was not a convalescent home.
Both Mr. Capellini and Mr. Davis said that sober house meets the 300-3 definition and, more particularly, that the group living arrangement was part of the therapy, i.e., providing a medical component. They also challenged Mr. Sirignano’s contention that the code considers convalescent homes and nursing homes as being synonymous.
How to handle ambiguities in the code
Mr. Davis argued that when there are ambiguities in the code, the law is clear that the ZBA must apply the code as written and that ambiguities must be interpreted in favor the sober house.
After hearing both sides, ZBA member Anthony Tripodi said he had to go along with what the law said, even if it was different from current practice. Common sense, he said, was variable, and the board’s interpretation of the code should not be based on his opinion. He also felt that the 1997 legislative intent was not relevant to the issue currently before the ZBA.
Although Mr. Davis asked that the hearing be closed, Acting Chairman Greg Bucci moved to adjourn the hearing to May in order to give Mr. Gregory a chance to response to Mr. Brink’s affidavit about the Winter memo and also to allow the town time to submit an official transcript of the 1997 DVD.
Additional arguments were heard for and against the proposed special permit. At approximately 11pm, having given all persons who had signed up at the previous meeting an opportunity to speak, the hearing was adjourned to May 6 at which time the clerk will read a 10 page letter from someone who said they wanted the letter read into the record and to give the applicant an opportunity to speak. (Earlier in the evening, the applicant had asked, as a point of order, for an opportunity to speak, but the clerk continued to call on people who had signed up to speak.)
Some of the issues raised included:
Not allowing a commercial operation in a residential zone. Several speakers addressed this issue. John Flynn, a Planning Board member and resident in the neighborhood of the proposed home, noted that the zoning ordinance, while separating residential and commercial uses, was flexible and allowed some commercial uses in residential zones, such as churches, day care facilities and doctor offices. He said possible uses for the house , which he called a “white elephant,” included converting it into a hotel, restaurant, daycare facility or permitting multi family housing, adding that each of these possible uses would have its own set of impacts on the neighborhood.
Residents opposed to the permit stated that it was one thing for a person to buy a home knowing that there was a pre-existing non-residential use in the neighborhood, e.g., Four Winds in Lewisboro and the Bedford Hills prison, but different for those who bought homes in residential areas and then a commercial use was proposed after they had moved in.
Need for a sober living home. Both speakers in support of the application, including Lisa Mackay and Tricy Cusher, as well as those who spoke against it, agreed on the extent of the drug/addiction problem and that something had to be done about it and all supported the concept of a sober living residence. Where they differed, however, was Yorktown’s responsibility to address the problem which, it was said, would not necessarily serve Yorktown residents. At issue was Yorktown's role as a caring community in dealing with the crisis. Ms. Cusher asked residents not to be afraid of change.
Legal issues. Michael Sirignano, the attorney for the homeowners opposed to the permit, repeated the major point he had made at the ZBA hearing that under the existing code, a convalescent home was synonymous with a nursing home and that the sober living residence did not meet the code’s requirements for a nursing home. He advised the board members to arrive at their own determination about the meaning of the code independent of the ZBA determination. However, Mr. Capellini advised the board that it was bound by the ZBA’s decision. Mr. Sirignano said he had reviewed the video of the 1997 Town Board meeting (see ZBA meeting below) and noted that the amendments to the zoning code had been drafted by Supervisor Grace acting as town attorney at the time and that at the meeting, Mr. Grace had said that a convalescent home and a nursing home were one and the same. Supervisor Grace said that whether there was a difference between the two types of facilities was still an open issue.
In response to the applicant’s contention that he could open a sober living residence “as of right” as a “family,” Mr. Sirignano said he welcomed the applicant’s dropping the special permit request and trying to come in as a family but that a sober living residence did not meet the code’s definition of “family.” He said that if the Town Board saw the need for a sober living residence, it should add that type of facility to the zoning code as a permitted use by special permit.
In response to comments that referenced group homes, Supervisor Grace explained that the sober living residence was not a group home and that procedures that applied to group homes were not applicable to the current application.
Process. Several residents questioned the process, particularly the changed dates on a Building Department memo, and Robert Gironda questioned the credibility of the applicant and what he called inconsistencies in the applicant’s statements. Mr. Gironda also questioned the 19 conditions the applicant said he was willing to put on the permit, adding that he thought it was the town’s prerogative to put conditions on a permit.
Grace recusal. Several residents asked Supervisor Grace to recuse himself based on past comments he had made about his personal family experience with addiction. In response, the supervisor made a full disclosure about his personal involvement in the issue which, he said, gave him more understanding about the issue, adding that he felt his eventual decision on the issue would not be tainted by this experience and he saw no need to recuse himself. Later in the evening, he apologized to his family member for having singled him out publically for having an addiction problem.
Alternate use for the site. John Clark suggested that the town purchase the historic house and under the aegis of a not-for-profit entity and operate it as a community facility.
Mr. Capellini said that the applicant has submitted additional documents in support of the application and Mr. Sirignano’s 18 page memo to the ZBA was entered into the Town Board record.
The hearing before the ZBA was an appeal by the homeowners of the building inspector’s January, 2014 finding that the application for a special permit for a convalescent home met the requirements of the zoning code. In an updated memo, possibly dated March 27, the building inspector elaborated on the reasoning behind his decision earlier decision that the application conformed to section 300-3 of the zoning code but not 300-42. (see below for an explanation of the two sections.) The new memo also included copies of the minutes of the 1997 Town Board minutes that resulted in the addition of section 300-42 to the code.
The homeowners were seeking an interpretation that determines
1. the sober living home is not a convalescent home, and
2. because a convalescent home and nursing home are synonymous, the same conditions that apply to the nursing home apply to a convalescent home
At the hearing, Michael Sirignano, the lawyer representing homeowners, and Bob Davis, one of two lawyers representing the applicant, presented two very different interpretations of two sections of the zoning code which led ZBA member Gregg Bucci to comment, “that’s what we’re up against.”
While both attorneys agreed that the language in the code was sloppy in parts, both agreed that it was unambiguous in supporting their interpretation. At issue was the question of what was the Town Board’s intent in 1997 when it added the nursing home section. In an effort to answer this question, a transcript will be made of the video recording of the 1997 discussions.
One section, 300-3, general definitions, dates back to 1958 and was unchanged through two subsequent changes in the code, in 1969 and 1997. The section defines a convalescent home and nursing home as being synonymous and uses very general language about a facility where people recovering from an illness or affliction reside. Mr. Sirignano pointed out that this language was similar to language used in other Westchester zoning codes.
The second section, 300-42, added to the code in 1997, entitled “Nursing Homes,” has very specific requirements for a nursing home, including that the proposed facility be licenses by NY State. A second condition dealing with signage was the only reference in this section of the code that specifically included the words “convalescent home.”
It was Mr. Sirignano's position that because the first section considered the two facilities to be synonymous, a convalescent home also had to meet the requirements of the second section – which it didn’t because it was not licensed by the state. His position was that the definition in 300-42 was in addition to the definition in 300-3 and not a substitute definition as Mr. Davis contended. Mr. Davis also contended that 300-42 applied only to nursing homes and not convalescent homes, adding that similar to other sections of the code dealing with other special permits, there were no specific conditions covering convalescent homes, only general conditions that applied to all types of special permits, e.g., houses of worship. In response, board member Robert Fahey asked is anyone could hang out a shingle calling their house a convalescent home meeting only the code’s general requirements. Mr. Davis responded, yes.
Citing the sober house rules that are part of the applicant’s submission, such as prohibiting guests from being on the premises, permitting searches and drug tests, and requiring the residents to have outside jobs, Mr. Sirignano challenged the contention that the sober living residence was even a convalescent home and suggested that if the town wanted to allow sober living residences which were not contemplated when section 300-3 was drafted, the Town Board should adopt an amendment to the zoning ordinance adding sober living residences as a new permitted use. If the use isn’t specified in the code, he said, then it is prohibited, adding that both by both common sense and the smell test, in no way shape or form was the proposed sober living residence a convalescent home.
Mr. Bucci and other members of the board noted, however, that the sober living residence did meet the general definition of a convalescent home in section 300-3: it houses three or more people who had an affliction and the residents boarded at the facility.
While both attorneys stated that the code was unambiguous, they differed on how the ZBA should deal with inconsistencies within the code: Mr. Davis held that where there were inconsistencies, they should be construed in favor of the property owner. Mr. Sirignano disputed that and said that the facts of the current situation had to be factored into the board’s determination in addition to the language of the code.
If the ZBA ruled in favor of the homeowners, Mr. Sirignano said the applicant would have two avenues of relief:
1. Apply to the ZBA for a use variance, or
2. Have the Town Board adopt a new section in the zoning code permitted sober living residents by special permit and with conditions.
The hearing was adjourned to allow time for the 1997video to be transcribed and to give both sides time to respond to each other’s points.
At 11pm, after a 3-hour hearing that included a presentation by the applicant, followed by about 18 speakers, mostly against, but some for granting the special permit, the board adjourned the hearing to April 1. The people who had signed up on a first come, first serve basis to speak, will be the first people given an opportunity to address the board when the hearing is reconvened.
(Note: The Zoning Board will hold a public hearing on March 27 to address questions relating to the interpretation of sections of the Zoning Code dealing with convalescent homes and nursing homes.)
While those in support of the sober home cited the need for such a facility, those opposed said they understood the need for sober homes but questioned whether the proposed facility met the requirements of the Zoning Code and whether the Underhill Avenue house was the proper location for such a facility.
At the conclusion of the meeting, Supervisor Grace said that a “middle ground” could be issuing the special permit with conditions.
(A video of the meeting is available on the town’s web site, yorktownny.org.
Supervisor Grace announced that the packet of supporting documents provided by the applicant, as well as all correspondence the town has received on the issue, will be scanned and made available on the town web site.
Ms. Roker said that the February 24 meeting would not be televised as historically these types of meetings had never been televised.
Supervisor Grace added that the Town Board would not be participating in the meeting and that the purpose of the meeting was to let both sides of the issue became familiar with each other.
Citing what she said were inconsistent sections of the zoning code regarding nursing homes and convalescent homes, Linda Gironda asked the Board to request an interpretation from the Zoning Board as to what constituted a convalescent home, specifically whether a convalescent home was independent of a nursing home. She said that the building inspector has stated that a convalescent home is separate from a nursing home. She asked that the interpretation be made before the March 4 public hearing. She also referred to an email that had been sent to Board members asking for clarification about the agenda and format for the February 24 informational meeting and the concern of homeowners that the informational meeting might be duplicative of the public hearing. She said the homeowners did not want the informational meeting to be moderated by the Town Board, but rather by a separate moderator and that the homeowners did not want to argue the benefits of a halfway house but rather issues revolving around the special permit. In response to Ms. Gironda’s question whether any of the other agencies the application had been referred to had an obligation to submit comments, Deputy Town Clerk Quast said the agencies were under no obligation to comment on the application but that she would check back with them.
What started as a comment during Courtesy of the Floor turned into a lengthy – and often contentious -- comment period about the proposed convalescent home for recovering addicts. About 20+ residents who appeared opposed to the facility were at the meeting.
Supervisor Grace, acknowledging that the public had many questions and concerns about the application, and stating that there was misinformation about the proposed facility, suggested that an information meeting be held prior to the scheduled March 4 public hearing. After considerable back and forth, February 24 was tentatively set for the meeting.
Residents raised questions about what types of addictions the proposed residents would be recovering from (drugs, alcohol, sex, gambling, etc.) and the lack of definition as to what a convalescent home was and the lack of regulations governing its operation. They felt that calling the transitional facility a convalescent home was a deception. They acknowledged the need for this type of facility – in the right place – and that it needed to be regulated. They also expressed concern over security issues for their children and neighborhoods.
When one resident asked if the full application was on file and could be viewed by the public, Supervisor Grace explained that the application requirements in the town code were minimal and had been met.
Supervisor Grace explained that as an elected official he was obligated to give the applicant a chance to be heard. And he took umbrage at the suggestion of one resident that he had already made up his mind to support the application and should recuse himself from the public hearing. He said he hadn’t prejudged the issue, although he spoke of the community’s drug problem and the need for this type of transitional facility and the concerted effort the town was making to deal with both the supply and demand side of the drug problem.
The full discussion can be viewed on the town’s web site. http://www.yorktownny.org/generalpage/town-board-meeting-videos or on rebroadcasts of the meeting on Channel 20 (cablevision) or Chanel 33 (FIOS). For a schedule of the broadcasts, check http://www.yorktownny.org/generalpage/yorktown-government-television-program-guide
On a referral from the Town Board, the Planning Board reviewed the plans to convert the house built in the 1880s. The house has been on the market for three years and is currently subject to a 90 day sale contract with the applicants.
As explained by the applicant, the facility would have a single supervisory staff person 24/7 on a shift basis. The residents would not have cars and the facility would transport the residents when necessary in one or two vans. The residents would be encouraged to have outside jobs and/or continue with private therapy and not remain on the site during the daytime. There may be weekend family visits. Additionally, the applicants plan to do some unspecified related outreach into the community.
In response to questions from the Board, which was supportive of the concept, the applicants had the following responses:
Business plan. Although this would be the first such venture on the part of the applicants, they will be following the AA 12-step model and the work of an addiction specialist Arnold Washton. The son of one of the applicant’s currently manages a similar facility. The Board asked to see a list of the facility’s board members. The Board was concerned that despite the applicant’s positive intentions, based on past experience, it also needed to consider the overall viability of the project. It was noted that while similar facilities exist in Texas California and Florida, there are none in this area.
Traffic. The site currently has a long horseshoe driveway with two curb cuts onto Underhill Avenue. Mr. Flynn, citing traffic conditions on the road, suggested that that an exit onto French Hill Road would be safer. Although initially reluctant to make site plan changes, the applicants said they would consider such a change. Parking on the site was considered adequate and was not an issue.
Septic fields. The applicant said the fields have been previously approved for 10 bedrooms and that they have been advised that the fields are adequate. This would be an issue for the county health department.
Residential character. There was some concern that the “overimprovement” of the house might impact the overall residential character of the area and also the need for screening, particularly in the rear of the building. In offering some advice to the applicants, the Board suggested that many of the issues being raised by the Board were likely to be raised at the public hearing and that the applicant should be prepared to answer the comments.
SEQRA: The Town Board will be lead agency and an EAF will be required. Although Mr. Capellini said it would be a "short form: EAF, Mr. Tegeder implied that something more would be required.
Zoning code issues. Also discussed were the limited and inconsistent provisions of two sections of the zoning code governing nursing homes and convalescent homes. As pointed out by the Board’s attorney, the two terms are used interchangeably in the section dealing with the need for a special permit, but the second section that contains specific site plan requirements only mentions nursing homes, in effect, leaving no separate guidelines or standards for evaluating a convalescent home which may be different from a nursing home. Initially, chairman Fon suggested that the Board not issue a recommendation to the Town Board until the building inspector commented on the two sections, but Al Capellini, the applicant’s attorney, advised the Board that in discussions with the building inspector, Mr. Winter had agreed that a convalescent home was different from a nursing home which made the nursing home requirements not applicable and that the conditions of the special permit use for a nursing/convalescent home had been met. In response, Mr. Fon said that if the opinion was not in writing, it did not exist.
Mr. Capellini advised the Board that given the 90 day contract to purchase the site, with the clock starting on November 13, the Town Board would be holding a public hearing on the application in January and he urged the Board to finalize its recommendation at the meeting and not postpone the issue until January.
After some discussion, the Board agreed to issue a recommendation supporting the concept but asking the Town Board to take into consideration the possible need for screening in the rear of the property, lighting, traffic, especially the exit to French Hill Road, and the opinion of the building inspector regarding the requirements for a convalescent home.
The prospective buyers of 482 Underhill Avenue (at French Hill Road) discussed plans to convert the existing 8,500 SF house into a facility where 12-14 people coming out of drug and alcohol in-house rehab programs would be able to stay for a 30-60 days transition before they’re ready to return to their family setting. The operation would be voluntary and 100% private, with no government or insurance funding and the potential residents were described as “high functioning.” There will be no medical services provided on the premises, and the residents, who are there voluntarily, would be free to come and go but there would be certain rules.
Because the use does not meet the definition of a “family” in the town’s code, a special permit will be required. The Board referred out the request to various town boards.
Mr. Capellini noted that in the 1960s the house was used as a school for disabled people.
Shell Gas Station (Kear Street) Canopy Town Board, 2-25-2014 The board approved the special permit for the canopy. Representatives of the applicant advised the Board that the applicant had revised his plans to incorporate all but one of the requirements and suggestions of the building inspector and Planning Board including, showing all signs on the plan, removing clothing bins and old spill remediation equipment no longer needed, removing two off site lights and preparing lighting and landscape plans. The one Planning Board recommendation the applicant objected to was closing off one of the two access points to Commerce Street. The Board saw no problem with keeping the two access points. There were no public comments. The Board closed the hearing. A resolution approving the permit will be drafted and voted on at a future meeting.
Town Board, 1-28-2014
Planning Board, 1-13-2014
Shell Gas Station (Kear Street) Canopy
Town Board, 2-25-2014
The board approved the special permit for the canopy.
Representatives of the applicant advised the Board that the applicant had revised his plans to incorporate all but one of the requirements and suggestions of the building inspector and Planning Board including, showing all signs on the plan, removing clothing bins and old spill remediation equipment no longer needed, removing two off site lights and preparing lighting and landscape plans.
The one Planning Board recommendation the applicant objected to was closing off one of the two access points to Commerce Street. The Board saw no problem with keeping the two access points. There were no public comments. The Board closed the hearing. A resolution approving the permit will be drafted and voted on at a future meeting.
The applicant advised the Board that she had met with Building Inspector John Winter at the site and that all outstanding issues have been addressed. The clothing bins have been removed and some monitoring equipment from an earlier oil spill that has been resolved will also be removed.
Mr. Fon noted that when an existing development came before the Board for site plan modifications, the Board saw an opportunity to make both safety and visual improvements to the site.
The Board again expressed a desire to see the curb cut closest to Kear Street closed off in order to improve safety conditions at the intersection. The applicant, however, felt that doing this would hurt the flow of traffic on the site. No decision was made on the issue.
The applicant explained that the canopy over the pumps closest to the street could not be reduced in size and still serve the purpose of protecting the public during inclement weather.
Mr. Tegeder asked the applicant to provide a lighting chart that measured the light emanating from the site and also suggested that two lights currently located on the sidewalk be relocated onto the site if they are still needed.
The Planning Department will draft a memo to the Town Board expressing its concerns.
Although the applicant was not present, the Board briefly discussed the site plan, noting that some of the conditions of a 2004 site plan approval had still not been addressed. The Board also expressed concern about the aesthetics of having one of the two canopies very close to the road and across the street from the Railroad Park in an area the town hopes to enhance. While the Board was supportive of the need for a canopy, the thinking was that possibly one canopy might be sufficient.
Because of continued concerns about other areas of the site, Board members will do individual site visits.
Although the applicant was before the board for a special permit to erect two canopies, the discussion centered around which board had the authority to issue the special permit: the town board or the zoning board. Supervisor Grace and Building Inspector Winter agreed that the zoning code was ambiguous on the issue and Supervisor Grace said that the law should be fixed. He said that in the past, there were issues about the desirability of canopies.
The board agreed to refer out the application, together with a request for opinions on which board should be the approving authority and to set a public hearing on the application for January 21.
Planning Board, 4-8-2013
The request was for a renewal of the special use permit for outdoor sales. The existing permit expired in September, 2012. When Mr. Flynn noted that the Yorktown Heights A&P had the same outdoor sales display (plants), he asked if they also had a special permit. Assistant Planner Steinberg responded that both locations had received letters about their expired permits but that she had not heard back from the Yorktown location. Also, the building inspector reported that there is litter at the Shrub Oak location that needs to be cleaned up. The Board tabled any action until it heard from both locations and could deal with them together. The Board’s attorney added that more information was needed as to exactly what was going to be sold at the outdoor location.
Planning Board, 10-16-2017
As there have been no issues with the use, the board reapproved the special permit use originally granted in 2012.
As there have been no issues with the use, the board reapproved the special permit use originally granted in 2012.
Planning Board, 10-15-2012
After opening and closing a public hearing, the Board approved a five year special permit. A condition of the permit is that the plan will have to show the location of eight conservation parking spaces in order to compensate for the plan’s elimination of eight parking spaces.
In a narrative document, the applicant documented that while the proposed new warehouse use would eliminate eight existing parking spaces from the original approved site plan, the reduction would not create a parking problem. Planning Director Tegeder noted that the original plan includes a provision for about 100 “conservation spaces,” i.e., an area set aside on the site plan for future parking spaces that could be created if and when there was a need for additional spaces. He noted that the site does not appear to have a shortage of parking spaces.
Citing the requirements of the special permit language in the Zoning Ordinance, Planning Board attorney Karen Wagner asked the applicant to submit additional information that would establish a “finding” for the record that the proposed use would not interfere with the operations of the existing tenants in the shopping center.
If the required information is submitted on time, the Board will hold a public hearing on the application on October 15.
The Board reviewed the site plan for a special permit to permit a warehouse use of a 6,000 SF portion of the lower level of the Staples Center building.Entrance to the business will be from the rear of the building. The business is currently located on Front Street but wants more space. Although the business sells auto parts to garages and repair facilities within a 10-15 mile radius and is not a typical “retail” business, it will fill orders from area hobbyists who stop in. Because the plan includes the elimination of about eight parking spaces, Planning Director John Tegeder asked to see the original approved site plan for the shopping center to make sure that the reduced number of parking spaces wasn’t contrary to the approved plan.The Board also wanted to make sure that the warehouse plan did not preclude any future warehouse use for the remaining vacant space on the lower level.A public hearing on the special permit request was scheduled for October 16.
Town Board, 5/15/2012
Public hearing: Special Use Permit for Mid Valley Oil Co (BP Station on Commerce St.)
The applicant explained that the company wants to replace three outdated single walled tanks with new double walled tanks and add a fire suppression system as a safety feature. Howard Frank raised several issues, including whether a piece of the property was actually on town land (an urban renewal parcel), why the applicant doesn’t install an emergency generator and bring gas service to the site (which would replace an existing fuel tank) and what could be done to improve the appearance of the building. Supervisor Grace explained that ABACA, the Planning Board and the Building inspector had no problem with the application, although theTown is looking into the question of the town owned land. The applicant said that his engineer had modified the plan to eliminate any encroachment on town land.Supervisor Grace said that as the application is only to replace the existing tanks, the board could not require the applicant to make changes to the building.
Howard Orneck asked the board to look into the size of the tanks and an old ZBA permit. In response, Supervisor Grace said that approval authority for gas station tanks had been transferred from the ZBA to the Town Board several years ago.
The Board approved the special use permit.
Planning Board, 4/23/2012
The Planning Board saw no planning issues it needed to review.
Special Permit for Outdoor Dining
Location: 20-38 Saw Mill River Road
Contact: Eric N. Singer Architects, P.C.
Description: Proposed patio and exterior staircase.
Planning Board, 4/23/2012
The Board discussed a proposal to build a patio with benches (but not tables) at the south end of the
Planning Board, 4/9/2012
The applicant, a new tenant in the Roma Building, is seeking a special permit to permit an outdoor seating area, approximately 24’ x 18’, on the side of the building along Route 202. The plan calls for benches only, plus a new exterior staircase that would link the two levels of the building. Because of the grade, a retaining wall will need to be constructed.
The board was supportive of the concept but was concerned about several design elements and asked the applicant to work with the Planning Department to work out some of the key issues that included the location of the staircase, the height of the retaining wall, and the existing curb in the lower parking lot.While the applicant is anxious to begin construction as soon as possible, Planning Director Tegeder explained that if the proposed retaining wall exceeds 4.5’ (the current plan calls for an 8’ wall), the Zoning Code could consider it to be a structure which would then trigger other requirements which would require a variance and site plan approval. One way to avoid the height issue, he suggested, was to use bollards to set off the dining area, but the applicant expressed some concern whether the bollards would provide sufficient safety for those sitting on the benches.
The applicant advised the board that the building’s new landlord had indicated that he was planning to redo the façade of the building but that he had no idea what the landlord’s timetable was. The landlord has indicated that he will contribute toward the construction of the new staircase. Once constructed, the seating area will be available for use by anyone and will not be restricted to patrons of the yogurt shop.
The applicant is expected to return to the board in two weeks with possible revisions to the original plan.
Location: 2441 Saw Mill River Road
Contact: Debra Drake
Description: Proposed expansion of existing control house by an additional 12 feet.
Planning Board, 3/26/2012
On a special permit referral from the ZBA, the board reviewed plans to add12’ on to an existing 15’ x 30’ substation buildingon Saw Mill River Road. The building is set back from the road and the bike path andany neighboring houses. The expansion will house some new capacitor banks that are needed to improve service during peak summer times. The project is being funded by a Department of Energy stimulus grant that addresses problems the electric grid experienced years back. There will be no work done outside the existing fence which will not be altered.NYSEG’s environmental consultant has indicated that there are no wetlands or other environmental issues that need to be addressed. Planning Director John Tegeder advised NYSEG to communicate with the Town Engineer regarding the possible need for an erosion and excavation permit.
NYSEG is working with the Building Department to clear up unfinishedpaperwork associated with the 1978 special permit obtained when the structure was built. A new special permit cannot be issued before the1978 permit issue is resolved.
The board will send a memo to the ZBA indicating that there are no planning issues involved.The ZBA has also referred the application to ABACA and the applicant has submitted information to that advisory board.
Acting on a referral from the ZBA, the board reviewed the parking plan for a special permit for the Yorktown Jewish Center to permit a day care center on the site to be run by the Jewish Community Center which currently operates a similar facility at Parkside Corner on Route 202. The day care center will utilize four existing classrooms that have been used in the past for school use, and will have a maximum enrollment of 36 children and 5-7 staff people. The applicant had submitted a traffic study showing no impact from the proposed new modest use.
The proposed plan utilizes the existing traffic pattern into the site from which is from Loretta and James Street. Parents are expected to park and walk their children to and from the ramp into the building. At the board’s request, the center’s staff will be directed to park in a certain location.
An approving resolution will likely be voted at the January 23rd meeting so that the applicant can return to the ZBA on January 26th for final approval and a desired February start at the new location.
Northern Westcheste Restorative Care/Treetop Rehabilitation Center Town Board, 6/19/2012 . The public hearing on a request for an amended permit was opened and closed without any comment. The Board approved the permit Town Board, 5/29/2012
Northern Westcheste Restorative Care/Treetop Rehabilitation Center
Town Board, 6/19/2012
. The public hearing on a request for an amended permit was opened and closed without any comment. The Board approved the permit
Town Board, 5/29/2012
Based on information supplied by the applicant at the end of the meeting, the brief discussion focused on the applicant’s request that the board advertise a public hearing on its application for a special use permit to add approximately 2,900 square feet of additional space to its existing building. The ZBA has issued the needed variance.
In response to the confusion and uncertainty as to why this item was on the board’s agenda and what needed to be done, Building Inspector John Winter explained that the rehab facility had submitted an application for a slight addition to its existing facility and that because the Town Board was the approval authority for the Center’s special permit, the application had come to the Town Board, which, following procedures, the Town Board had referred to the Planning Board for review.
During the Planning Board review, it was determined that a variance was needed so the application was referred to the ZBA. And, as part of its procedures, the ZBA was now asking the Town Board if it wanted to comment on the variance application.
Planning Board, 2/13/2012
The application is for a massage therapy business in the existing finished basement of a single family residence.This type of use requires four parking spaces for the business and one for the residence, which the site already has.The two car garage provides parking for the residence, and there is already enough pavement to accommodate four more cars.There will be no employees, and the applicant says she expect never more than two clients at any one time.The Planning Board was assured there would be no change to the character of the neighborhood.The Planning Board approved the parking plan and has no objection to the special use permit.
Planning Board, 1/9/2012
The applicant did not appear at the meeting and no documentation regarding parking was provided. The request is to legalize a use that already exists. The Planning Department will send a letter to the applicant requesting the necessary documentation.