Town Board Work Session

June 14, 2016

SPECIAL NOTE:  In a change of plans, the Town Board will hold a regular meeting June 21 and a work session June 28.

1. Affordable Housing Ordinance

The board met with two representatives of HUD and two members of the Community Housing Board to discuss the proposed repeal of the current ordinance.  The discussion, which was a follow up to a two hour meeting the representatives had with Supervisor Grace about 2-3 weeks ago in his office, lasted over an hour and touched on many different aspects of the law and affordable housing in general. By the end of the meeting, there was no agreement on anything and the HUD representatives said they would send the town a revised model ordinance that might address some of the town’s concerns.  Supervisor Grace said he would have town staff take a look at it and seek comments.

The summary below is organized by subject. (Note: The Affordable Housing Law applies only developments that are privately funded.  It does not apply to developments like the proposed Kear Street project that are financed using a combination of government housing programs.)

Yorktown’s history providing affordable housing.

Supervisor Grace said he was proud of the town’s history providing affordable housing. He referred to two 1988 initiatives that were discontinued in 1994.

Density bonus. A voluntary program enacted into law that gave developers additional units if they provided one or more affordable units. It was considered unpopular and was discontinued.

SEQRA impact fee.  As part of the Planning Board’s environmental review process, developers had an option to provide one or more affordable units or pay $3,000 per lot into an Affordable Housing Trust fund. 

When Supervisor Grace said the town hadn’t gotten any units under the Density Bonus Law, Ken Belfer, chairman of Housing Board, reminded him that the Courtyard development in Shrub Oak was built under the density bonus plan.  Then, when Supervisor Grace brought up the fact that the town had to subsidize the resale of some of the Courtyard units as an example of why the town shouldn’t get involved in resale deed restrictions (see below), Ms. Gregory, a long time member of the Housing Board reminded him that the Housing Board had recommended against the town subsidizing the resale at the time and Mr. Belfer, also a long time member, added that the resales occurred in 1992 when the condo market experienced a nose dive.

When Councilman Bernard cited the recent Lexington Avenue rezoning as another example of the current board providing affordable housing (under the existing Affordable Housing Law, one of the eight townhouse units will have to be affordable) and would rent at $1,200-$1,400 a month, Mr. Belfer noted that there were no restrictions on the rental rates as part of the rezoning; Mr. Bernard responded that the neighborhood would dictate what the rents would be.  Supervisor Grace also cited the Crompond Terraces rezoning that will generate some affordable units.

Mr. Belfer noted that while many years ago Yorktown provided affordable  “starter homes,” that was no longer happening.

The goal of affordable housing

While portions of the discussion dealt with legal issues, there was a more philosophical discussion of whether providing affordable housing, aka, a diversity of housing, should be a town goal.  Citing the American dream of homeownership, Councilman Bernard asked if it was or should be government’s role to provide a house for everyone.  Which led Supervisor Grace to ask: who should bear the burden and pay for fulfilling this goal?

The supervisor’s primary objection to the current law was that the burden of providing affordable housing was on the developer who lost value when he had to provide an affordable unit that benefited only one person. He said that if a burden had to be placed on a developer he would rather it be a burden that went towards infrastructure improvements that would benefit all residents.  When the supervisor continued to imply that an affordable unit would cost taxpayers $10,000, both the HUD representatives and members of the Housing Board responded that no taxpayer dollars were involved; the “cost” of providing the affordable unit was borne only by the developer.

While Supervisor Grace preferred to leave it up to market to provide affordable housing, possibly through rezoning, the HUD representatives, citing a U.S. Supreme Court decision, spoke in general terms about the value that affordable housing adds to a community and that a set aside law similar to Yorktown’s current law was one tool a municipality had to achieve that goal. The issue, she said, was whether Yorktown wanted to make it a priority to provide affordable housing and whether the town wanted to provide a framework for future generations.

The HUD representatives made it clear that the choice of what happens next was up to the town: it could partner with HUD to tweak the current law in order to address its concerns or it could have no affordable housing law, in which case, the issue might end up in court. Supervisor Grace disagreed with the last comment about a repeal ending up in court.

Supervisor Grace also noted that it was Yorktown taxes that contributed to making housing unaffordable.

“As of right” developments vs rezoning

Supervisor Grace appeared to have no objection to an affordable housing requirement that was tied to a rezoning because the rezoning already increased the property’s value.  His main objection was to requiring an affordable unit as part of an “as of right” development where the developer was only allowed to build the number of units based on the site’s zoning and environmental conditions. Councilman Bernard cited the proposed Orchard View subdivisionas an example of an “as of right development” that will be required to set aside one house at an affordable price. (See also Fieldstone Manor.)

Deed restrictions on resale of ownership affordable units

Supervisor Grace and Councilman Bernard repeated their objections to the restrictions in the law that limited the resale price of the units for a 50 year period.  (See Town Board, 5-3-2016.)

In support of his argument that the restrictions prevented owners from building up equity, Supervisor Grace noted a review he had done of resale prices over the past 10 years. In response, Ms. Gregory noted that renters didn’t build up any equity. And a HUD representative noted that how much equity a house generated over time was based on market conditions.  In response to Councilman Bernard’s comment that when owners remain in the unit over a long period of time, even when their incomes have increased, they are denying affordable units to others, the HUD representative noted that the other way to look at the issue was that maintaining the stability of the town’s population was also a benefit for the community.

Both the HUD representatives and Mr. Belfer agreed that there are issues involving the ownership deed restrictions and that this was one area of the current law that could be looked at for revision. Mr. Belfer suggested that one modification might be that if resale restrictions were eased, the town might get a portion of any “windfall” generated by a changing housing market over time.

Restrictions on rental rates

The HUD representatives explained that the permitted rental rates can be increased over time to make sure that the property is properly maintained.  The rates are tied to Westchester’s Average Median Income, a figure that is modified every year. There did not seem to be any concerns about this part of the existing law.

Legality of the Law

Although at the May 3, 2016 public hearing Supervisor Grace said that the current law was illegal, the discussion only briefly touched on the legality of the law.  When Supervisor Grace said that the current law was “fraught with legal problems” and called the set aside an illegal exactment, the HUD representative said it wasn’t.  She offered to write a brief that disputed his legal arguments, adding, “We agree to disagree.” (Note: on the supervisor’s Grace Notes TV program taped  June 8, 2016, Supervisor Grace states that the two HUD representatives who met with him agreed with him that the current law was illegal. After explaining to the women why a set aside law can’t work in New York, Mr. Grace says: “At the end of the day you’ll find out you can’t legally do it. They agreed. Remarkably (remarkedly ??) they actually agreed.”)

Marketing issues

Supervisor Grace raised the issue of the provision in the current law that requires the affordable units to be marketed in accordance with the county’s Fair and Affordable Housing Affirmative Marketing Plan and whether units built under the law could be limited to Yorktown residents. In response, the HUD representatives said the town didn’t have to follow the county plan. This led to a brief but contentious exchange over whether the town was engaging in social engineering and whether a broader marketing plan was needed to overcome what Ms. Gregory noted was the town’s “primarily white” population. After the HUD representative made a reference to the racial/ethnic statistics 2010 census, Supervisor Grace said the program should be color blind. (Note: While preferences for local residents or employees was permitted in earlier affordable housing programs, the courts have since ruled them discriminatory. In 2011, the town’s long established Section 8 Housing Assistance Program was sued over its local preferences. In the settlement, the town had to eliminate the local preference.)

Monitoring issues

There was a brief discussion of the mechanics of monitoring the affordable units, whether owned or rented. The HUD representatives noted that because there weren’t likely to be too many units built under the law, the Housing Board could do the job.

2.  Yorktown Stage

Saying that he “needed help,” Barry Liebman, owner of the Yorktown Stage, requested town funds to offset the $130,000 he said he had to borrow to pay to replace the theater’s sound and lighting system in April.  He also provided the board with a list of repairs and improvements he said had to be made; some that are urgent, like new seats and upgrading the bathrooms, and others with a lower priority.   

While he cited the spin off benefits of the theater to Yorktown businesses, he noted that his recent production of Gypsy had lost $20,000. He said that going forward he would focus on kids and family oriented shows.  He said he was paying a lot of rent, plus the cost of overtime for YCCC maintenance staff when the building is closed.

Supervisor Grace repeated a vision he has had for many years of having the theater used more frequently, including his suggestion for free movie nights, e.g., like a “Casablanca Night.” (Note: In the 2014 and 2015 budgets, the town included $64,700 each year for the purchase of a movie projector. The money was never spent.) When he said that an ASK forum a year or so ago had used the theater’s screen to show a movie, Mr. Liebman said the theater did have one but he would check. And Supervisor Grace said he had some people ready to donate funds for the camera.  Mr. Liebman added that the theater is “dark” about 20 weekends a year and that he had no problem with additional events as long as he didn’t have to cover the cost of overtime.  All agreed that the theater was an asset to the community but that its size limited some of the possible future events.

On the subject of doing more marketing to attract customers, Mr. Liebman said he had tried a variety of programs but they had not been successful. Councilman Lachterman offered to meet with him to offer any help he could.

Supervisor Grace advised Mr. Liebman that he has received complaints about what some perceive to be the town subsidizing the theater because its square foot rental cost is much lower than rental rates for the other regular tenants. When Mr. Liebman said that the money he earns from his summer camp program helps defray the cost of what he loses on his productions, Supervisor Grace reminded him that that argument – his making money on the camp program – can be used to hurt him.

The discussion ended with the board giving no indication that it would help Mr. Liebman pay for any portion of the $130,000 already spent or that funds might be forthcoming to pay for new seats or bathroom upgrades. Mr. Liebman indicated that as he hasn’t fought his rent increases in 20 years, he wasn’t likely to be fighting the town on this issue.Supervisor Grace suggested that more work be done on a marketing plan to attract more customers.

3. Puppy Hill Legislation

Town Attorney McDermott prepared a revised draft of a law (the original one previously discussed was based on the Village of Mamaroneck law) but indicated that there were still legal issues with the latest version. He said the town had to be careful not to take away someone’s right to earn a living and Supervisor Grace said the law had to be clear and have unambiguous standards.

Part of the problem revolved around the two types of puppy sellers and how to distinguish them: stores that sell puppies raised in puppy mills (which the law’s proponents consider to be unhealthy places) and private breeders who maintain proper standards and screen their buyers.  It was also noted that while the law’s proponents want to encourage buyers to purchase only from “rescue shops,” some rescue shops could be purchasing their puppies from puppy mills.

While the overall goal of the law’s proponents is to get a large number of municipalities to enact puppy mill bans on the theory that the mass of legislation will help eliminate puppy mills in Westchester, Mr. McDermott said that it was important to go slow, be patient and enact the best possible law adding that just because another municipality passes a flawed law doesn’t mean Yorktown has to follow. Supervisor Grace advised the proponents that he doesn’t want to pass “ribbon cutting legislation” that feels good but can’t be enforced.

All agreed that independent of any legislation, more consumer education was needed to warn buyers of the dangers of purchasing dogs from puppy mills. 

The law’s proponents will provide Mr. McDermott with copies of other laws he can review.

4. Rezoning 3561 and 3563 Ellis Street

Although Evan Bray’s name was listed on the agenda for the discussion, he was not present at the meeting. However, there was a brief discussion with Ira Hertz, the owner of one of the properties.  (Note:  The two parcels abut the recently rezoned Lexington Avenue parcel. Both homeowners were opposed to the rezoning.)

Mr. Hertz advised the board that his motivation for seeking the rezoning to multi family use was:  if you can’t beat them, join them and make money.  He said that in addition to his Ellis Street neighbor, other homeowners on Clover Road were considering joining the rezoning request.

Supervisor Grace advised Mr. Hertz that in order for the board to consider the rezoning request, he would have to provide a conceptual sketch of what his rezoning plan is. Councilman Bernard added: And it can’t be on a napkin.

5. Mohegan Avenue Retaining Wall & Old Crompond Road Bridge Culvert

Town Engineer Quinn and Highway Superintendent Paganelli gave the board a status report on the need to proceed with both infrastructure projects.

Mohegan Avenue retaining wall (located on the lake side, in the vicinity of Sagamore): About 25% of the wall is compromised. It is the opinion of both men that rather than repair the damaged portion at a cost of approximately $300,000  (the same materials are not even currently available), it made more sense to replace the entire wall at a cost of approximately $600,000 and, in the process, widen the road a few inches.  The board agreed with that approach and Councilman Bernard suggested that in the interim, a road plate be put in place that could prevent further water damage to the wall. Mr. Quinn is currently in the process of getting design quotes from several outside engineering firms and he said he hoped to bring an approving resolution to the board at its next meeting. The actual work would be done in the summer of 2017.

Old Crompond Road (behind McDonalds): (See Town Board, 2-24-2016.)  This bridge culvert needs to be replaced at a cost of approximately $500,000. Mr. Paganelli said it made sense to do the job now and now wait until it collapses and becomes an emergency situation as happened in 2015 to other bridge culverts.  He would like board authorization to hire an outside engineering firm to begin design work.

In a brief discussion of how the two projects would be financed, Mr. Paganelli said that the capital budget had set aside $100,000 for the Mohegan wall but that there was some money left over the Lexington Avenue  and Hill Boulevard  projects.  He said the Lewis Ave/Fairview project also on the town’s “to do list” could be postponed. He said he was trying to be proactive about the town’s infrastructure needs and noted that the two projects could use up much of the Spectra $1.5 million.

In a related issue, the town said it hoped to get reimbursed from the insurance company for the damage done to the recently rebuilt Croton Heights bridge. (The sum of $12,600 was mentioned but it was not clear if the repair had already done or if the Highway Department might be able to do the work.)

6. Commercial and Industrial Incentive Board

Supervisor Grace asked each board member to submit three names for potential members of the new board. Adding that “we know what kind of people we need on the board.” He added that board members probably already had specific people in mind, and that some people had already approached him. He added that it was important to get people who could work together. The actual selection will be made in a closed executive session.

7. Verizon Cell Tower

It appeared that the board voted on a resolution but there was no discussion or indication as to the content of the resolution.

8. Miscellaneous resolutions

Correction:  These resolutions will be passed at the June 21st meeting.

The board waived a $370.20 fee for the Historical Society to use the Nutrition Room for four presentations and waived a $1,123.50 fee for the Red Cross to use the YCCC for a blood drive during the October 9 street fair.