Assisted Living Facility clears another hurdle

By Mark Reynolds
Posted 11/2/21

As the Lloyd Planning Board was about to approve the site plan for the Villages Assisted Living Facility [ALF], board member Sal Cuciti pointed out that the project layout showed about 25 parking …

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Assisted Living Facility clears another hurdle

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As the Lloyd Planning Board was about to approve the site plan for the Villages Assisted Living Facility [ALF], board member Sal Cuciti pointed out that the project layout showed about 25 parking spaces were in the front yard setback, which is not allowed in the town code.

Section 100-29(D)(4) states that, “In any residential district, no off-street parking facility shall be developed within any required front yard setback, or required side yard setback adjacent to a street line, or within any other side or rear yard within five feet of the lot line.”

On October 13, 2021 Building Department Director Dave Barton issued a determination on this issue in a letter to Planning Board Chairman Scott McCarthy. Contrary to 100-29(D)(4), Barton’s letter stated that front yard parking was in fact actually allowed.

Barton wrote that, “As designed, a limited number of the Project’s parking spaces in the front yard are located within the 30 foot yard setback specified in the Zoning Code’s Dimensional Table for the R-1/2 zoning district. However, a note in the Zoning Code’s Dimensional table provides [that] front yard setbacks may be adjusted to prevailing setbacks in the immediate neighborhood.”

At this key point, Barton left off the second half of this sentence. In the Dimensional Table that he cites, a semicolon follows the word ‘neighborhood’ and further states - “a maximum setback or ‘build-to line’ may be established to maintain the ‘street wall’ in the R-1/2 and R-1/4 Districts.” This missing second half means that a setback may be adjusted in order to line up a row of houses in a residential neighborhood and has nothing to do with parking.

Barton’s determination continues with a list of reasons why he approved the front yard parking. For example, he writes that, “the front yard abuts a heavily trafficked commercial corridor.” a comment that echoes earlier claims by the developers own lawyer, John Furst. What Barton and Furst left out, however, was any reference to or legal basis for his authority to overrule the town’s zoning requirement to locate the parking further back.

Barton noted that in the Planning Board’s Special Use Permit findings that, “the project adequately minimizes the impacts of the limited parking facilities in the front yard of the ALF building.” In addition, he points out that the parking in the front, “is adequately screened by a retaining wall and landscaping.”

Barton summed up what zoning can achieve.

“What zoning does is offer us regulations to control; actually it’s a police power of the town; what can and can’t happen. I have always advocated for flexibility in the code and some board members have disagreed with me on that, but I think flexibility is better, particularly when we look at a board like you guys, who are skilled at what you do and you have good staff (engineer Andrew Learn and land use attorney Paul Van Cott) to help you through the heavy lifting.”

Barton said he made his decision after reviewing the town code and noting the length of time the Planning Board conducted their review. He points out that the project is zoned residential, “although it acts more like it is commercial and butts up against commercial and in this area of Route 9W there is mostly front yard parking. My determination is the board has considered all the impacts – and you guys did a full environmental review on this – and found no adverse environmental impacts. The board considered all of that, and in my opinion, considered it correctly.” In the end Barton concluded that the ALF project is in conformance with the Town Code and praised the Planning Board for doing an “extraordinary job.”

Barton failed to mention that the Planning Board approved a Negative Declaration [Neg Dec] for the project by a vote of 5-2. This allowed the developer to skip a lengthy environmental review even though the Planning Board, in their run up to approving the Neg Dec, found a variety of environmental impacts that rose to a level of moderate to significant. That alone should have triggered the opposite, a Positive Declaration, from the Planning Board that would have required the developer to mitigate all of the environmental impacts that were identified.

At the October 23rd Planning Board meeting, Chairman Scott McCarthy touched upon Barton’s determination letter, claiming that the Planning Board wanted to be as transparent as possible and to set the record straight, “of him having the authority to make the determination.” McCarthy stressed that the Planning Board, “in no way pushed through this project.” He said criticism from Town Board member Joe Mazzetti on how the Planning Board conducted themselves on this project was, “extremely disheartening and not doing the public the service they need,” calling it an injustice to the Planning Board itself. Town Councilwoman Claire Winslow also stepped up to disparage her fellow board member, resulting in a significant amount of the Planning Board’s time being spent on personal and political attacks.

Winslow has repeatedly showed her lack of understanding of this project, specifically by characterizing the building as having been downsized by the developer during the planning process, when in fact it will be 340 feet long and the roof of the building will be 64 feet above Route 9W, as the first floor will be at least 12 feet over the road elevation.

Planing Board member Gerry Marion said the parking issue should have gone before the Zoning Board for clarification on the setback. He asked attorney Van Cott for the section of New York State Law that gives the authority to Barton to make the determination. Van Cott said he would give him that section of state law in an email, instead of letting him know at the meeting.

Van Cott said at first the question of conformance with the town code is made by Barton, as Building Department Director, and his determination has been filed with the town clerk. A 30 day period follows when this can be appealed, “by any aggrieved person to the Zoning Board of Appeals.” The attorney stated that Barton’s determination is the decision of the Town of Lloyd under state law and under the town’s zoning code and it would not be appropriate for the Planning Board to send it to the ZBA without having first a determination from Barton.