Last week the Town of Lloyd Zoning Board of Appeals approved a resolution regarding the zoning for the Falcon Ridge residential subdivision. Lloyd’s Land use attorney Paul Van Cott wrote in the Resolution that a Determination by Building Director Dave Barton was correct in stating that no road access could be granted through a Light Industrial zone to a Residential zone and that the developer’s appeal of that decision was denied. However, a modified resolution approved by the ZBA just minutes later did exactly the opposite, even though it violates the town code.
The Falcon Ridge subdivision was granted road access to develop the property and are on the agenda for this week’s Planning Board meeting. Developer Dan Gueron is seeking to build 166 single family homes as a conservation subdivision on his 520 acre parcel.
Gueron’s attorney Andrew Gilchrist responded to Barton’s Determination on July 20, 2021, stating that his client’s only access to the larger residential portion of the property is through the LI zone that lies along Upper North Road. He said this ‘split zoning’ of the two parcels was done by the town and actually land-locks his client’s property.
Gilchrist characterized the Determination as,“erroneous, contrary to law and is hereby appealed.” He has stated at ZBA meetings that if access is denied it would amount to an unconstitutional taking of his client’s land.
Even though the LI and R-1 acre zoning was in place at the time Gueron purchased the property in 2006, his lawyer contends that this situation is not one that is self-created by his client who should be able to, “rely on governing law that allows access to Upper North Road.”
On October 11, 2021 Attorney Van Cott, submitted a Memo to the ZBA saying that Barton’s Determination should be upheld because, “both uses of LI lands and the project site are part and parcel of the proposed residential development on the project site for single family residences and, as such, are accessory uses to the proposed principal residential use that are not permitted in the LI Zoning District.” Van Cott further noted that Gueron’s appeal, “does not support reversal or modification of the Determination.”
Van Cott wrote that the applicant’s argument that his project is landlocked and prohibiting access would destroy the economic value of his property should instead be made in support for a Use Variance and is not applicable for a reversal or modification of the Determination. In the end, however, the Use Variance was not required.
On December 8, 2021 attorney Gilchrist wrote that the current zoning limits the use of his client’s property to a conservation area, a wildlife area, a park, playground or other public recreational facility, “with no private development opportunity.”
Gilchrist submitted financial documents to the ZBA, noting that his client’s investment in the land, including the purchase price, taxes, carrying costs and project development fees amounted to $5,606,262 or $10,781 per acre. A review of the figures on the Ulster County Parcel Viewer indicates that the actual purchase price for the 520 acre property in 2006 was $3,869,549 or $7,441 per acre. Gilchrist did not present a deeper breakdown of the additional costs he cited that increased the per acre cost by $3,340 for a total of $1.7 million.
On January 13, 2022 Van Cott wrote the Resolution that denied the developer’s appeal and upheld Barton’s Determination but added that the Determination is modified to allow access roads to the proposed residential properties, the very action the developer was looking to achieve. Van Cotts’ resolution runs counter to his previous October 11, 2021 memorandum to the ZBA when he recommended affirming and not reversing or modifying Barton’s Determination.
Van Cott stated several reasons for the modification: the site was split into two zones; access to the residential portion was only achievable through the LI zone and would not have any impact upon or change the character of this zone and no other site in the town has this set of circumstances. He went on to state that modifying the Determination to allow the road access, “is justified under these unique circumstances in order to avoid unnecessary hardship or practical difficulties arising from a literal application of the Determination in this specific case.”
The ZBA vote was unanimous with Chairman J. O. Litts, William Brown, Russel Gilmore, Shawn Zerafa and Jessica VanHouten voting in favor of the resolution.
Lloyd Councilman Lenny Auchmoody, who attended last week’s ZBA meeting, said he thought the LI zone would have to be changed to Residential but that is not in the resolution.
“Then I guess I misunderstood, that’s all I can say. I thought ingress and egress was going to have to be changed from LI to do whatever he needs to do,” Auchmoody said. “If they can just use it, no I’m not comfortable with it.”
Councilman Mike Guerriero is the Town Board’s liaison to the ZBA.
“What I don’t understand is that Dave Barton’s Determination was upheld and then the attorney said that it wouldn’t be a problem to go through an LI property to get to a residential...and here it wouldn’t do any harm,” Guerriero said.
Supervisor Dave Plavchak said he understood the ZBA thought Barton’s Determination was correct, “however they felt this was a unique situation and they were going to allow the two roads to access the properties so it wouldn’t create a hardship. They felt it was unique enough that they would not have to ever run across this again. That’s the way I read it.” He pointed out that if the LI section were rezoned residential the town would run the risk of being challenged for spot zoning. He also worried that if this was not approved by the ZBA the town and the developer would end up in a legal struggle, “where the town was preventing this person from using their land.”
Councilman Joe Mazzetti said this decision is troubling on a number of fronts, saying he does not see what was denied, the developer was granted access over the LI zone.
“The reality is it’s a play on words and is a total manipulation where he [Van Cott] is saying it’s denied but they can cross over, so basically Barton’s Determination wasn’t upheld. If we’re going to have laws and we’re not going to uphold them, then why have the laws at all. Then we should just scrap it from the books.”
Mazzetti said this is a self created problem by the developer because he knew what the zoning was when he bought the property and should have known what he could and couldn’t do at that time.
Mazzetti characterized the resolution as a, “classic case of Paul Van Cott’s double talk. In one breath he says you can’t and in a second breath he says we’re going to uphold what the Building Director says and in a whole different breath he contradicts everything he said previously of what he just said and he goes totally against the opinion and then says he’s upholding it. This is why this attorney firm needs to be replaced.”
Councilman John Fraino did not respond in time to meet deadline.