Memo. To: John Callahan From: Michael D. Zarin, Esq. Meredith Black, Esq. Client: FASNY Re: Miscellaneous Zoning Issues Date: December 6, 2012

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1 Memo To: John Callahan From: Michael D. Zarin, Esq. Meredith Black, Esq. Client: FASNY Re: Miscellaneous Zoning Issues Date: December 6, 2012 This Memorandum addresses several zoning issues raised by various City Departments, which need to be clarified so that FASNY can begin to prepare and submit the FEIS to the City in a timely manner. 1. Zoning A. Development Site DISCUSSION Questions have been raised regarding the applicability of Development Site regulations to the FASNY Application. More precisely, should the FASNY site be considered as one development parcel for zoning purposes as we were previously advised, or as four (4) separate zoning parcels as has now been newly posited by some. Initially, as mentioned previously, this issue was discussed at length, and supposedly resolved at a meeting with the relevant City Staff held on May 8, At that meeting it was determined specifically that the City would consider FASNY s property a Development Site, and as such certain of the dimensional (coverage, FAR, Accessory Structures) and use regulations would by applied across the entire property, as opposed to each lot individually. This made eminent sense to all at the meeting. Certain other provisions regarding yards/setbacks were also discussed at that meeting as they relate to a Development Site. We have the notes from those meetings. The DEIS was prepared based upon these agreements and assumptions. The White Plains Zoning Code ( Code ) defines a Development Site as [t]he entire site designated by the site plan or special permit approving agency as the area to which the dimensional and use regulations of this Ordinance shall apply; notwithstanding the subdivision or divided ownership of such site. (emphasis added) 1

2 Code, Section 2.4. This language provides specifically that the approving agency [i.e. City Council in this case] has the authority to make the determination of whether dimensional and use regulations apply to a site regardless of subdivision or divided ownership. Id. In her Memorandum, Advisor Habel suggests that unless a Development Site is specifically provided for in Section 5.3 of the Code, it is not permitted. First, this is contrary to the position she originally took, including as presented at the May 8 th Meeting. She references the description of the RM-2 zone in the Schedule of Dimensional Uses that includes a footnote indicating that Dimensional requirements apply to the entire area classified an Urban Renewal site, and are not applied to any individual areas, notwithstanding the subdivision or divided ownership of such site. Moreover, Advisor Habel s new position conflicts with several basic axioms of statutory construction. In the first instance, since zoning regulations are in derogation of common law, they must be strictly construed against the municipality... [and] in favor of the property owner. See Allen v. Adami, 39 N.Y.2d 275, 277 (1976); Bonded Concrete Inc. v. Zoning Bd. of Appeals of Town of Saugerties, 268 A.D.2d 771 (3d Dep t. 2000) (holding that courts must strictly construe a zoning code against the municipality, particularly where a contrary interpretation would subject the landowner s property to a lengthy and involved process not contemplated by site plan approval). Further, [a] statute of legislative act is to be construed as a whole, and all parts of an act are to be read and construed together to determine the legislative intent. N.Y. Statutes 97; see also U.S. v. Robinson, F.3d, 2012 WL (2d Cir. Nov. 30, 2012) ( [T]he words of a statute are not to be read in isolation; statutory interpretation is a holistic endeavor. (citation omitted, emphasis in the original); Albany Law School v. N.Y.S. Off. of Mental Retardation & Dev. Disabilities, 19 N.Y.3d 106, 945 N.Y.S.2d 613, 620 (2012) ( [I]t is well settled that a statute must be construed as a whole and that its various sections must be considered with reference to one another. ); Onondaga County Sav. Bank v. Love, 166 Misc. 697, 3 N.Y.S.2d 428, 434 (Sup. Ct. 1938) ( Language, however strong, must yield to what appears to be the intention, and that is to be found, not in the words of the particular section alone, but by comparing it with other parts or provisions of the general scheme of which it is a part. (citation omitted)); N.Y. Statutes 98(a) ( All parts of a statute must be harmonized with each other as well as with the general intent of the whole statute, and effect and meaning must, if possible, be given to the entire statute and every part and word thereof. ). While admittedly the only section in the Zoning Code that expressly refers to a Development Site is Section , concerning the Transfer of Excess Gross Floor Area, a holistic review of the Zoning Code shows that this term is meant to apply throughout. There are numerous provisions in the Code where dimensional requirements are applied to the entire site, and the site is treated as one development site where there is a common use and ownership of the related parcels. See Section 5.3 of the Code. In a Planned Senior Residential Development District, for example, [a]ll dimensional requirements shall apply to the entire District and are not applied to any individual areas 2

3 notwithstanding subdivision or divided ownership of areas within the District. Code, Section Similarly, in a conservation district, which is permitted on properties located in the R1-30, R1-20, R1-12.5, R , and R1-5, the average coverage of the land with building over the entire property shall not exceed the amount permitted in the zoning district in which it is located. Code, Section Neither of these districts includes a reference to the development site footnote listed in Section 5.3. The text of the Code clearly intends for all properties in common ownership with one intended use to be treated logically as one development site. Indeed, the plain language of Section shows that it is up to the approving agency to designate the Development Site for zoning purposes. The Code indicates that excess gross floor area on a lot or designated development site may be transferred to a non-contiguous designated development site. Code, emphasis added). The clear language of Section 2.4 supports this result. Ultimately, and perhaps most fundamentally, in statutory construction, again, as you are surely aware, the Code s plain language must govern the application of dimensional and use regulations. See, e.g., N.Y. Statutes 76; Ellington Const. Corp. v. Zoning Bd. Of Appeals of Inc. Vill. Of New Hempstead, 77 N.Y.2d 114, 121 (1990) [I]f the statute is unambiguous and its meaning evident from the language... we need look no further ). Section 2.4 of the Code explicitly states that a Development Site can encompass various tax lots regardless of subdivision or divided ownership. This also makes sense from a practical zoning perspective. There is no rational reason for the City Council to treat the FASNY property as different parcels for zoning purposes. Such a position would cause an unreasonable, absurd, and discriminatory result in contravention of multiple axioms of statutory construction. As you know, statutes are to be given a reasonable construction, it being presumed that a reasonable result was intended by the Legislature. N.Y. Statutes 143; see also N.Y. Statutes 145 ( A construction which would make a statute absurd will be rejected. ); N.Y. Statutes 146 ( A statute should be construed in a manner which will not work hardship or injustice. ); N.Y. Statutes 147 ( The court should adopt a statutory construction which will produce equal results and avoid unjust discrimination. ); N.Y. Statutes 148 ( In accordance with a presumption of the legislative intention, the courts will construe a statute in order to avoid mischievous or disastrous consequences. ). Respectfully, it would be unduly restrictive and unfair to treat any property with one intended use as multiple development sites. The primary reason it appears this issue is even being raised here is because the FASNY Property is divided by roads. Otherwise, the Property could be merged. In reality there are many Development Sites that have roads or driveways running through them. 3

4 Accordingly, the use of Development Site should be permitted in the R1-30 zone with respect to FASNY s Property so long as it is affirmed by the Common Council. B. Use Regulations Lots without a Principal Use In her Memorandum, Advisor Habel also raises questions regarding the accessory use of lots without a principal use since by definition an accessory use may not be located on a lot without the principal use to which it is accessory, and that it cannot be accessory to another accessory use. Assuming the FASNY Property is treated as one Development Site, which it should, this issue become irrelevant. In viewing the FASNY site as one development site, as it should, uses are applied to the entire site, such that accessory uses on Parcels B and C may be accessory to the principal uses located on Parcels A and D. The Conservancy as a Use Assuming that the FASNY Site is viewed as separate parcels for development purposes, Advisor Habel posits that the designation of the Conservancy, as a specific and separate use, would not be a permitted use in a residential zone. First, assuming this is a rationale interpretation, which it is not, the Conservancy could be re-labeled as open space on FASNY s Application. This redesignation would remove the question of whether the use is permitted as a principal, or accessory use in the R1-30 Zone. It would essentially operate as the functional equivalent of a residential back yard (which does not require a specific use designation). Unfortunately this alternative would result in the loss of public access to this open space since such use would not be permitted as none of the special permit approvals of existing private schools include provision for shared use or lease of athletic facilities by other private schools or private individuals, groups, or organizations. Nor would FASNY be permitted to provide parking for the open space. As a second option, the Conservancy could be designed as a Use of the City of White Plains, which is a Permitted Principal use in the R1-30 Zoning District. Code Section 5.1. FASNY s Application proposes the Conservancy as a privately held, public amenity. FASNY has offered to fund, secure, and maintain the Conservancy, while making it available to the general public 365 days a year from dawn to dusk. In the DEIS, FASNY made it clear that the Conservancy is a public amenity that it is willing to develop with the City, and its residents, and formalize with a Conservation Easement or other appropriate legal documentation. Designating the Conservancy as a City Use would also obviate the issue that none of the special permit approvals of existing private schools include provision for shared use or lease of athletic facilities by other private schools or private individuals, groups, or organizations. We therefore submit as an 4

5 alternative position (albeit unnecessary in our opinion) that the Conservancy portion of FASNY s Application could be considered a Use of the City of White Plains, and a permitted principal use under the Code. We would prefer that the Conservancy be considered part-and-parcel of the FASNY Application, and that a separate and distinct use not be assigned to this open space. We know of no precedent where a community applies a specific use designation to open space proffered as part of a larger land development application. Such a regulation would have the unintended consequence of stifling the provision of open space and public access to such open space. We submit that this is contrary to the City s Comprehensive Plan. Accessory Uses Require Separate Special Permits Advisor Habel further opined for the first time in her Memorandum that swimming pools, tennis courts, basketball courts, and other similar facilities are structures that each require their own special permit since they possess characteristics of such unique and special form that each specific use must be considered as an individual case. Respectfully, this is a matter of semantics, and displays an overly onerous and irrational approach to Zoning. To the extent regulations control the development of swimming pools, tennis courts, and other similar court facilities, the Applicant understands that those regulations require compliance. The Applicant also acknowledges that to the extent specific special permit criteria exist for said uses, they must be addressed. We respectfully submit, however, that separate applications for each of these specific uses are not required, but rather fall within the purview of the overall Special Permit and Site Plan Application for the school. We know of no other communities that regulate separate Special Uses on the same property. C. Dimensional Regulations Yards Many questions have been raised by City Staff as to how lots are defined and interpreted under the Code as applied to FASNY s property. The Applicant and City staff have defined Parcels A and D differently based on their respective interpretations of the Code. An analysis and effect of these interpretations are provided below. The Applicant defined Parcels A and D solely as Corner Lots. Under the Code [a] lot located at the junction of two or more intersecting streets where the interior angle formed by the intersection of the streets is 135 degrees or less is considered a Corner Lot. Code Section 2.4. Based on this information, the property owner may elect the front yard and designate the other yards accordingly. As shown on FASNY s plans and noted in the DEIS, for Parcel A the Applicant designated Ridgeway as its front yard (requiring a 75 ft. setback), Gedney Esplanade as its rear yard (requiring a 15 ft. setback), and the other yards as side yards (requiring a 25 ft. setback for each). 5

6 With respect to Parcel D, the Applicant designated Bryant Avenue as its front yard (requiring a 75 ft. setback), Ridgeay as its rear yard (requiring a 15 yard setback), and the other yards as side yards (requiring a 25 ft. setback for each). Certain City Staff have indicated that Parcel A should be considered a Corner Lot and a Through Lot. First, there is no specific definition for Through Lots in the Code. The general, undefined term through lot is discussed as part of the "Front Lot Line" definition. The Front Lot Line definition notes that [i]n addition, in the case of a through lot having lot frontage on two streets, the front yard setback and all other requirements of this Ordinance applicable to front yards shall apply for both streets. This definition conflicts, however, with Section of the Code, which provides that [t]he owner of a corner lot in a residence district may elect either yard fronting on a street as the front yard, with any other yard fronting on a street then becoming a side yard. (emphasis added). We believe that Parcels A and D are clearly Corner Lot[s], and that FASNY s proposed yard designations are ones that meet the intent of the Zoning Regulations and allow for a rational layout of project elements that protect adjoining residential properties. Setbacks Another issue with respect to the designation of Parcels A and D as Corner Lots, and the defining of the appropriate yard setbacks, is relevant to agreeing on the setbacks for off-street parking from Hathaway. The Applicant submits that since Parcels A and D abut other Corner Lots, 1 the setbacks are defined by Section of the Code. Section of the Code states, that in the case of corner lots, off- street parking spaces shall be set back from the side street line a distance equal to the front yard requirements on such side street, unless corner lots are back to back, in which case such off- street parking spaces shall be set back at least 10 feet. As such, the Applicant need only provide a 10 foot setback from Hathaway for off-street parking. In contrast, some have suggested that under Section of the Code, the Applicant must apply for a waiver of the average setback of existing buildings from Hathaway because off-street parking needs to be at least 40 feet from Hathaway. The Applicant respectfully disagrees with this interpretation. The applicable part of Section of the Code states that if on the street chosen for the side yard, the approving agency... finds that there is an average setback of existing buildings, from which no building departs too greatly, the agency [i.e. the Common Council]... may require the side yard on such corner lot to be equal in depth to such average setback. The Code does not require that the Applicant seek a waiver of Section Instead, it places an affirmative duty on the Common Council to impose any more 1 Parcel A abuts the Corner Lot located at the intersection of Ridgeway and Murchinson. Parcel D abuts the Corner Lot located at the intersection of Northdale Road and Southdale Road. 6

7 restrictive setbacks. Unless and until such time as the Common Council indicates that it would require increased side yard setback for off-street parking a waiver from the Applicant is not required. As a practical matter, application of this increased side yard setback would require an entire redesign of the lower school parking lots since those lots, with the exception of the pre-existing non-conforming parking lot, generally have a 25 foot setback from Hathaway. 7

TOWN OF NAPLES NAPLES MINIMUM LOT SIZE ORDINANCE. Naples Lot Size Ordinance for the Town of Naples, Maine Attested by Town Clerk

Adopted March, 1975 Revised November 29, 1988 Revised March 10, 1990 Revised June 27, 1998 at Town Meeting Revised November 2, 1999 Revised June 8, 2001 Revised June 11, 2002 TOWN OF NAPLES NAPLES MINIMUM