Commerce Bank (aka Mongero Properties, fka Webster Bank)

Section 37.14 Block 1 Lot 44 (Route 118 and Downing Dr)
Contact: Rick DeCola, Owner and Site Design Consultants

Description: A proposed 3669 square foot bank on 2.2. acres in a C-3 zone.

March 10, 2008, work session
The board reviewed a revised plan that the applicant had reviewed with the Conservation Board. The major change in the plan was the "flipping" of a pond used for storm water retention that would result in the preservation of a wooded area on the site.

The applicant's environmental consultant, Bruce Donohue, explained that the herbicide Rodeo would be used to kill the phragmites currently in the location of the future pond, although additional periodic clearing would be needed. Adjacent property owners will be notified when the spraying is to be done. The consultant also provided details of the landscaping plan. At the suggestion of the Conservation Board, instead of having a gravel parking lot, the lot will be paved in order to better control and filter runoff from the site.

There was some discussion about the applicant working with the owner of the adjoining Cablevision site to remediate an improperly functioning storm drain. While the applicant was willing to work with the adjacent owner, he said that he didn't want his plans held up because of a possible lack or cooperation with the other owner. (The owner of the Cablevision property said from the audience that the would take care of the storm drain issue.)

The new plan has to be reviewed by Bruce Barber, the town's environmental consultant. No action was taken.
March 24, 2008 work session
A public hearing for this project is scheduled for April 7, 2008.
Issues discussed included:
  • Bruce Barber's (environmental planner) request for a schedule and description of the techniques planned for phragmites (a non-native, intrusive wetland plant species) eradication on the site.
  • Lighting: Mr. Tegeder suggested light fixtures like the ones at a Jefferson Valley Bank, which are preferred because they prevent light spillage from the site .
  • The need for a variance for a canopy which will be within the rear yard set back, but the question arose as to which was the back and which the front of the building. The applicant was referred to the building inspector for a determination on this point.
    • April 7, 2008
    Public Hearing
    Most of the applicant's presentation dealt with the planned wetlands mitigation measures. A stream runs west to east through the property, entering a culvert at route 118 and resurfacing in the wetlands adjacent to the Post Office on Maple Hill St. There are also wetlands on the site, and part of the building and parking lot are in the wetland buffer. Mitigation measures include a storm water basin which will take water from the stream, polish it and return it to the stream course. The basin will also trap sediment and attenuate storm water run off. Water draining off the parking area and building will be passed through a storm water quality system. The storm water basins will be re-planted with native species chosen for their wildlife habitat value. The basins will not be visible from Route 118. The Conservation Board has already approved the wetland mitigation plan.

    The Planning Board questioned:
  • The phragmites eradication plan which was requested by Bruce Barber, the town 's environmental consultant. The herbicide Rodio will be used. According to Mr. Donahue, Rodio degrades rapidly and is approved for use in water supply systems. It needs to be applied when the phragmites are flowering, July-October.

  • Visibility from route 118 and neighboring residences. The plans include an easement to allow Cablevision trucks to park on the north side of the property. These trucks will not be any more visible than they are under present conditions.

  • Traffic improvements on route 118. There will be a new traffic signal at route 118 and Downing Dr. Southbound, there will be a new right turn lane onto the new extension of Downing Dr. which will be the bank's driveway. Northbound there will be a new left turn lane into the bank site.

  • Architecture of the bank building. Craig Tompkins, engineer, said it would be similar in style to the Lee Blvd. Commerce Bank, except that there would be no ATMs in the back. This would eliminate night time traffic and reduce the need for lighting in the back, in deference to the neighboring residents. ABACA has preliminarily approved the projects architectural design.

  • Need for a variance for the canopy of the drive through facility. The Building Inspector ruled that a variance would be necessary. The Planning Board will support the application to the Zoning Board for this variance


    • There were no comments from the public. The record will be kept open for two weeks to accept written comments.

    May 5, 2008 (work session)
    Mr. DeCola delivered copies of a letter from AT&T specifying its requirements and regulations concerning construction on and near its fiberoptic cable on this property.

    Mr. DeCola was of the opinion that his company was authorized to do this type of construction work and pressed for the Planning Board to move forward in approving the project. The Planning Board was very concerned about the Town's potential liability if the cable was damaged and thought Mr. DeCola was “reading more into the AT&T letter than it actually said” with respect to his authorization from AT&T. The Planning Board referred the matter to legal counsel Karen Wagner for an opinion about the Town's liability and responsibility with respect to construction on the fiberoptic cable and bonding requirements.

    Since the project is also awaiting comments from NYSDOT and DEP, in addition to the legal advice, the Planning Board was unwilling to consider granting even conditional site plan approval.
    June 9, 2008, work session
    Mr. DeCola gave the board a copy of an agreement between ATT&T and the town permitting him to do construction work near the fiber optic cable. The agreement still has to be signed by both parties before it is effective. (Mr. DeCola is scheduled to appear before the town board tomorrow, June 10th.

    Mr. Tegeder raised other unresolved issues including a sidewalk into the side, a guardrail along Route 118, the status of ABACCA's comments, drainage plans and changes that may have been made to the wetlands mitigation plan. Mr. DeCola alluded to changes that had been approved by Bruce Barber but nothing in writing was submitted to the board.

    In response to Mr. DeCola's question if he could ask the Building Department to start reviewing plans while the Planning Board continued its site plan review, Mr. Klaus said that this was completely up to the Building Department. Mr. Tegeder added that the Planning Board could not consider an approval resolution without a full set of plans.

    Mr. DeCola and a representative of the bank expressed concern over the time factor and noted that if the building can't be constructed this year, then the project would die. He will return to the board for the June 23rd work session with the hope that the board can approve the project at its July 14th regular meeting. Mr. DeCola is awaiting a decision from the Zoning Board. Relating to the site plan.
    June 10, 2008, Town Board work session
    Town Attorney John Buckley advised the board that the proposed agreement with ATT was totally unacceptable in that it placed unlimited liability on the town for a “laundry list” of damages. The cable runs from Boston to Miami. He said that Mr. Tegeder had explained to him that the Planning Department did not consider the proposed spur across Route 118 that would be the entrance road for the bank site to be a continuation of Downing Drive and that therefore the town was not bound by a legal settlement dating back to the late 1980s-early 1990s that made the town liable for $70,000 in the event of damages to the cable. (The cable is in the town's right of way.)

    Mr. DeCola argued that Highway Superintendent DiBartolo had already signed off on the 40 feet section where there would be a two foot deep excavation, adding that since he had agreed to excavate by hand, he didn't anticipate any possible damage to the cable or possible liability to the town.

    Councilman Martorano said that the town would be “insane” to agree to the proposed agreement.

    Mr. Buckley said he would talk to ATT and explore different language. He invited Mr. DeCola to participate in the discussions.

    In a side note, the question arose as to how and when Mr. DeCola obtained a sewer permit for the site about four years ago as it is located in the Hallocks Mill Sewer District which has been under a moratorium since the late 1980s. Town Engineer Sharon Robinson explained that “the DEP is not consistent.”

    Planning Board work session, June 23, 2008
    Rick DeCola gave the Planning Board an update on the Commerce Bank project proposed for Downing Dr. at Route 118.  He said that the project had received the required variance from the Zoning Board of Appeals and that both the DEP and DOT are currently reviewing the latest drainage and traffic plans. 

    Mr. DeCola informed the Board that in the future the property line will be shifted to cede a strip of land to the bank's neighbor Cablevision for their use as a truck parking area.  At this time, Commerce Bank is granting Cablevision an easement for this area, but will give the property outright by means of a property line shift, once the bank project has been approved.  It was deemed prudent not to further complicate the approval process for this project by changing the property lines at this time. .

    The most pressing question still remains the AT&T permit to excavate over its fiberoptic cable.  The proposed permit subjects the Town to unacceptable liability for damage to the cable. . Mr. Klaus reiterated that the project can go no further until a permit is worked out acceptable to both AT&T and the Town's attorneys.

    July 14, 2008, work session
    Mr. DeCola went through the project's approval resolution point by point with the Planning Board, correcting and clarifying the language.

    An agreement between the Town and AT&T about the Town's liability for potential damage to the AT&T fiberoptic cable is a major, outstanding issue with this project. So far no agreement is in place. The Planning Board asked that Karen Wagner, the Planning Board's attorney, be party to the negotiations. At this point, apparently AT&T will hire its own contractor to do the necessary work surrounding the cable and will be reimbursed by the applicant.

    Mr. DeCola is very anxious to move the planning process along so work on the site can start while the weather is still warm enough so the bank can open in early 2009. Getting NYSDOT approval for the new traffic light on Route 118 is another delay. To get around this, Mr. DeCola asked the Planning Board to approve the project without its actually having NYSDOT approval for the signal and then tying the site's CO to the signal approval. The Planning Board is very reluctant to do this, envisioning the building being built then standing empty without a CO because the NYSDOT did not approve the signal. Mr. Tegeder affirmed that the project is not acceptable without the light on Route 118. Mr. DeCola said that the light would surely be approved since the intersection needs a light, even without the new bank. The Planning Board did not share this confidence in NYSDOT. The Board asked Mr. DeCola to get some written reassurance from the NYSDOT that the traffic light approval would be forthcoming. After much discussion, Mr. DeCola agreed to this.

    Finally, the Planning Board agreed to consider the approval resolution at its August 11th meeting, conditional on an agreement with AT&T and providing Mr. DeCola can get a written letter of intent from NYSDOT about the Route 118 traffic light.
    October 6, 2008, work session
    The discussion centered on the issue of excavation above an AT&T fiber optic cable within a Town right of way on the site. The Town refuses to be liable for any damage to the cable and won't enter into negotiations with AT&T if Town liability is a requirement. Mr. DeCola maintains that AT&T will not move forward in any negotiations or approvals of excavation over the cable without Planning Board site plan approval. The Planning Board will not approve a site plan conditional on AT&T approval of excavation over the cable. Mr. DeCola argued that the Planning Board frequently grants conditional site plan approvals.

    The Planning Board pointed out that agencies such as NYSDOT, NYCDEP, Yorktown ZBA or ABACA rarely flat-out deny approval, but rather usually require some adjustments of the proposal to satisfy that agency's particular area of concern. This case is different in that AT&T could absolutely refuse permission to excavate over its cable, and indeed there is really no reason why it should give permission. AT&T has nothing to gain by giving permission and everything to lose if the cable is damaged. If AT&T denies excavation permission, then the Planning Board foresees the applicant pleading hardship and asking that the conditional site plan approval be made permanent. This puts the Planning Board in the position of being pressured to approve project that is defective. The Planning Board refuses to do this, and the argument goes around and around.

    Mr. Klaus offered to write a letter to AT&T summarizing the record of the planning work done on this project to show that it is a legitimate and good faith application, but will stop short of saying that the Planning Board is ready to vote on a approval resolution. Mr. DeCola said this would not be good enough for AT&T.

    Since Town Attorney Buckley's phone calls to AT&T are not returned, Attorney Karen Wagner suggested that the applicant's attorney Capellini write a letter to AT&T outlining the Town's positions and requirements on liability and conditional site plan approval. Mr. Capellini agreed to this approach, although he doubted its success.

    January 26, 2009, work session
    TD Bank is the new prospective tenant of this site.  The discussion centered on a strip of land which borders the neighboring Cablevision parcel.  Cablevision already parks its trucks there, and the plan is to change the lot line so that the area is actually ceded to Cablevision.  This was supposed to be done as part of the resolution approving the project.  Mr. DeCola asked the Planning Board to approve the transfer at this time, rather than later in the resolution.  He said TD Bank required it before it would sign a lease.  The Planning Board is reluctant to do this because work still needs to be done on that part of the property as part of the wetland mitigation plan, and the Planning Board can't require Mr. DeCola to do work on property that he will not own, should the transfer take place.  The Planning Board offered to write a letter to TD Bank verifying that the lot line change will happen in the approval resolution and explaining the difficulties in doing it separately.  This was agreeable to Mr. DeCola
     
    There was also discussion about the status of the agreement between the Town and AT&T concerning liability during excavation near their fiber optic cable.   Attorney Wagner said that she and the Town Attorney still were not satisfied with the language of the proposed agreement.  The Planning Board reiterated that it would not approve a plan that left the Town liable and would not approve the project without the AT&T agreement in place.  Mr. DeCola offered to ask the Town Board for a letter assuring the Planning Board that an agreement with AT&T would be reached eventually, so that the project could move forward.  The Planning Board was agreeable to that.

    January 27, 2009, Town Board work session
    Following up on his discussion with the planning board the previous evening, Mr. DeCola asked the town board to send the planning board a letter stating that it had no problem with the planning board granting the project approval subject to the condition that the town and AT&T reach a satisfactory agreement. He told the board that the project would result in benefits to the town, including a traffic light on Route 118. He also said that the project was “tottering” and he didn't want to see the town lose the potential benefits.

    Councilman Bianco advised the board that he had spoken to Karen Wagner and David Klaus and that based on what they said he was against issuing any such letter.

    Town Attorney John Buckley told Mr. DeCola that nothing had changed since he had appeared before the town board in June and that there was no way the town was going to be responsible for work done along the fiber cable line by a third party. He advised Mr. DeCola to have AT&T come before the board. In response, Mr. DeCola said that AT&T was not likely to approach the town board until there was a planning board resolution approving the project.

    Councilmen Campisi and Metz agreed that no letter should be issued.
    April 29, 2009, Town Board work session
    Attorney Al Capeillini, representing Al Mongero, the owner of the property, reviewed the history of the AT&T cable and the 1990s settlement agreement between the town and AT&T. He argued that because the cable was not buried deeply enough on the easement granted by the town when the initial installation was done by AT&T, the company has, in effect, assumed control of the property as the shallow installation is precluding the future use of the site for other purposes.

    Mr. Capellini wants the town to contact AT&T directly because he said the company would not deal with the property owner. He would like to have both the town and AT&T agree that AT&T would do the work to relocate the cable and that the property owner would pay the first $70,000 as stipulated in the 1990's agreement. To date, AT&T has not agreed to do the work to move the cable and the issue remains whether the town would be held liable if anything happened to the cable during any construction work on the site.

    Councilman Nick Bianco said that based on his conversations with planning board attorney Karen Wagner and town attorney John Buckley, the two attorneys had a different interpretation of the 1990's settlement. He said that Ms. Wagner reaffirmed her opposition to an earlier draft agreement but it wasn't clear whether she had reviewed the latest agreement prepared by the property owner. Mr. Capellini said that he hadn't heard back from Ms. Wagner and that he wouldn't have come to the meeting if she had called him back. He did say that he had heard from Mr. Buckley a few days ago and that it was okay with the latest draft agreement. (Note: Mr. Buckley was not at the meeting.)

    The board advised Mr. Capellini to confer with Ms. Wagner and Mr. Buckley to work out any remaining differences of interpretation over how to proceed. If the liability issue can be worked out, board members had no problem seeing the project proceed.

    Mr. Mongero noted the benefits to the town if the project went forward, including a traffic light on Route 118 and the construction of approximately 200 feet of a Downing Dr. extension. Planning Director John Tegeder said the issue should be the liability to the town and not any possible future extension of Downing Dr.
     June 22, 2009, work session
    The discussion of the relocation of the AT&T fiberoptic cable on the site continued.  Mr. Capellini reported that AT&T will move the cable itself and the applicant will pay the first $70,000 of the cost of doing this.  The Town of Yorktown will have no liability for any damage to the cable.  The resolution approving this site plan is very complicated and has a lot of conditions, so the Planning Board will take no action until all the members have the opportunity to fully review and understand the resolution.  Mr. Tegeder said the conditions pertaining to the AT&T cable agreement should be met before a building permit is issued.
     
    July 13, 2009, planning board work session
    There appeared to be general agreement that the way to proceed would be that the town enter into an agreement with AT&T, that AT&T would do the work and that Mr. Mongero would pay the first $70,000. The sticking point was whether the town board had actually directed the town attorney to proceed with drafting such an agreement and if not, then what would/could motivate them to do so and in a time frame that was acceptable to the applicant.

    Mr. Klaus said that based on conversations he had had with two town board members, it did not appear that the town board had directed the town attorney to move ahead on the issue and that an email from the attorney was inconclusive. And no one was quite sure what the town board had said or agreed to at its last meeting and it was clear that Mr. Capellini and Mr. Tegeder had come away from the last meeting with different interpretations of what had happened and been decided.

    Ms. Wagner and Mr. Tegeder noted that when the agreement with AT&T was negotiated in the 1990s the town had an interest in resolving the issue. Now, the town has no immediate interest in relocating the fiber optic cable; only the applicant has a motivation. The issue then appeared to be: what would/could motivate the board to proceed to draft the agreement.

    Mr. Capellinii explained that Mr. Mongero could not get a tenant until he had site plan approval and the planning board won't grant site plan approval until an agreement on relocating the cable is signed. The board rejected Mr. Capellini's request for site plan approval conditioned on getting a signed agreement between the town and AT&T. The board reasoned that if the agreement never materialized, Mr. Mongero would likely return to the planning board and argue a hardship and ask the board to withdraw the condition.

    The discussion ended with the next step clearly was with the town board.

    September 14, 2009, work session
    The board reviewed a draft of a multi page resolution approving the site plan with a list of conditions. At the request of the applicant, the board modified the condition relating to the applicant paying the $70,000 for the relocation of the AT&T cable so that the fee will not have to be paid until the applicant gets a building permit. Mr. Klaus added that no site work was to be done until the building permit was obtained and AT&T obtained the necessary permit to relocate the cable.

    The resolution is also subject to the town signing the agreement with AT&T – and also resolving the issue of the chargeback fees the town is requesting from the applicant to cover past legal expenses. (For a discussion of the chargeback issue see,     Legal Issues
    Mr. Capellini advised the board that the town had no authority under existing town law to charge the fee. Ms. Wagner said that the town attorney was currently reviewing the question.

    The applicant explained that having the approved resolution was needed in order for him to get a tenant for the building. The site plan approval will be null and void if the town does not sign an agreement with AT&T.

    Mr. Mongero noted that seven or eight previous proposals for the site have fallen through because of the AT&T cable issue.

    The board is expected to vote on the approval resolution at its October meeting.

    October 6, 2009
    Decision Statement
    The original plan was to vote on the approval resolution for this project, but there was a lengthy discussion about the wording of the resolution, centering around the AT&T fiberoptic cable buried underneath the Town right-of-way on the property and how that impacts the Town's plans to extend Downing Dr. to Baldwin Rd.  
     
    Planning Board Attorney Wagner had included in the resolution language stating that the Town currently had no plans to extend Downing Dr. to Baldwin Rd.  She said this was necessary to protect the Town against claims of negligence for not having acted to do so for the last 18 years.  Mr. Capellini, the applicant's attorney, argued vehemently against this.  He said that even though the Town currently does not have a formalized  Comprehensive Plan in place, it certainly is clearly the Town's intention to extend Downing Dr. in all other versions of the Plan.  He differentiated between short and long-term plans and pointed out that the Town does not actually build any roads, but plans for routes and then waits for developers to build them as needed for their projects, which is what is happening on the Mongero property.  Mr. Capellini strongly emphasized that the Town should clearly state in the resolution its intent and right to extend Downing Dr. in order to give the Town a strong position in negotiations with AT&T over the relocation of its fiberoptic cable.  AT&T could argue there was no reason for it to move the cable and/or pay to have it done if the Town had no plan to use the right-of-way for future road construction.  AT&T is so opposed to moving/paying to move the cable that it took the Town to court over the issue, so Mr. Capellini, looking out for his clients' interests, is loathed to give the company any bargaining position in upcoming negotiations over moving the cable.  He concluded that if the Town did not assert its right and intention to extend Downing Dr, it was essentially giving (rather than providing an easement) the right-of-way to AT&T.  Mr. Tegeder agreed with Mr. Capellini.  The Planning Board in general also agreed, but didn't see any problem with including some reference to the Comprehensive Plan and the Town's long term plans for Downing Dr in the resolution.  Mr. Capellini urged the Planning Board not to vote on the resolution until the language about the future of Downing Rd. was included.  Attorney Wagner agreed that reference to the Comprehensive Plan could be included without negating her original intention of protecting the Town against claims of negligence.
     
    Additionally, there was discussion of the provision for the applicant to initially pay $70,000 to move the cable and a CO would be contingent on the applicant also paying  any charges over that amount.  The applicant will also pay any of the Town's legal fees the applicant is legally required to pay.
     
    There was discussion about the Planning Board's right to approve which 3    rd party environmental inspectors are retained.  Mr. Tegeder explained that the Planning Department keeps a list of approved 3rd party environmental inspectors from which the applicant could choose, but the Planning Board decided to require that the environmental inspectors chosen be expressly approved by the Board.
     
    A vote on this resolution was put off until the November 9, 2009 public meeting, or possibly a special session will be opened at the October 26, 2009 work session.