Section 5.19 Block 1 Lot 14

Planning Board, January 28, 2008 work session
While the discussion focused on the conservation easement for Yorktown Realty Associates (the Capelli development at Route 6 and Barger St, Shurb Oak) the discussion had broader implilcations for other properties.

Present were Yorktown Land Trust Representatives: John Schroeder, President, Aaron Bock, Barbara Wilkins, Vice President, and Westchester Land Trust Director of Conservation Outreach, Eileen Goren

These Land Trust representatives addressed the Planning Board about the delay in removing the sales building and signage from the conservation easements on the Yorktown Realty property at the corner of Route 6 and Barger St. in Shrub Oak. As stewards of the conservation areas, the Land Trust representatives asked for action in getting this area into an acceptable condition. The presence of structures in the conservation easement impedes its functioning as a natural area and use for passive recreation. The Planning Board agreed to ask Mr. Capelli, the developer, to meet with the Board in order to ask him his intentions and plans for meeting the 2/15/08 deadline for dismantling the sales building and the completion of a pathway around the pond. The Planning Board has previously granted a one year extension of the deadline for the building removal, but put off deciding on an additional extension until hearing from Mr. Capelli.

The Land Trust Representatives also informed the Planning Board that the NYSDOT had incorrectly installed a chainlink fence on the Yorktown Realty property which blocked the proposed pathway encircling the pond. The Board said that it would be up to Mr. Capelli to deal with the NYSDOT about moving the fence since the pathway was a condition of site plan approval and therefore his responsibility.

The Board asked the Land Trust representatives to write a summary of their concerns about the conservation easements on the Yorktown Realty site.

Mr. Bock said that since Land Trusts are stake holders of conservation easements, he wanted the Yorktown Land Trust to be party to any negotiations with Mr. Capelli. The Planning Board rejected this, pointing out that the Board is the approval authority and suggested Mr. Bock research the legal position of Land Trusts in these circumstances.

Additionally, mention was made of the possibility that Yorktown Realty via Mr. Capelli might request the age requirements for homeownership in this age-oriented development be lowered. Lowering the age requirements has the potential to bring school-aged children into the Lakeland School District. However, the lack of impact on the school system was an important consideration in the original rezoning of the property for an age-oriented community. So such a request, if it is made, would not be viewed very favorably.

The Land Trust representatives pointed out some difficulties with conservation easements and the planning process, in general. Usually the Yorktown Land Trust enters into discussion about conservation easements with developers late in the planning process. This can affect the procurement of a conservation easement in the following ways:

1. If a developer donates a conservation easement on a buildable lot, he gets a tax deduction, which is an incentive to do this. However, once a conservation easement becomes a condition of approval, the area is no longer buildable, and the tax deduction goes away. The further into the planning process, the more likely it is that lots are deemed unbuildable, removing the tax deduction incentive to put them in a conservation easement. To address this, the Land Trust Representatives asked that they be consulted early in the planning process.

2. When a land trust takes stewardship of a conservation easement, it is required to show it has the means to protect and maintain the property. Indeed, this is an IRS requirement for tax deductible donations to land trusts. Toward this end, land trusts require that developers pay a stewardship fee when donating conservation easements. Often by the time the Yorktown Land Trust gets involved in the planning process, the developer has already invested a large amount of money in application fees, engineering and other studies. They tend to lump the Land Trust into the same category as the Planning Board and are very reluctant to pay yet another fee. This makes it more difficult for the Land Trust to negotiate a donation. In order prevent developers being blind-sided by yet another fee, the Planning Board instructed the Planning Department to include advance notice of a possible conservation easement stewardship fee in the fee schedule given to applicants at the beginning of the process.

Following up on the previous work session, the Yorktown Land Trust had sent the Planning Board a letter summarizing their concerns about the continued presence of the temporary sales building on this site after the February 12, 2008 deadline for its removal. The letter also listed five other site conditions that impact the site and its status as an area protected by a conservation easement. These include the chain link fence constructed by the NYSDOT that intrudes on the east side of the pond and prevents some of the required improvements, debris which is supposed to be removed, required signage and ATV and motorcycle trespass on the site. It is the owner's responsibility to make these corrections. Additionally the Yorktown and Westchester Land Trusts would like to review and comment on plans for the restoration of areas disturbed by a former owner.

Joe Apicella, representing Yorktown Realty Associates, requested that the Planning Board extend the deadline for the removal of the temporary sales building. Citing the slow real estate market, he said that the units have not sold as quickly as expected and that the sales building is a very necessary marketing tool in which he's already invested a large amount of money for decorating and furnishing. He pointed out that the Town certainly wouldn't want the development to become a “white elephant” of unsold units. Mr. Tegeder asked why one of the finished units couldn't be used as a sales model. Mr. Apicella said that the finished units would need to be furnished and decorated at additional cost and the owners of nearby units would object to sales traffic near their homes.

Mr. Apicella emphasized that the developers fully intend to comply with all requirements and said he would immediately get started with the other improvements and corrections listed in the Land Trust's letter.

The Planning Board agreed to extend the deadline for demolition of the sales building six months or until 50% of the units are sold, whichever comes first. Then at the end of six months there will be the option for another six month extension if requested by the developers. Additionally, the extension is tied to the completion of the listed improvements in an unspecified way. This resolution will be on the agenda of the next regular Planning Board meeting.

In the context of the Yorktown Realty site, there was discussion of the growing problem of ATVs and motorcycles using the Town's designated trail system, causing environmental damage and conflicting with use as hiking trails. This problem is growing as the Town's trail system is increasing more interconnected. Mr. Schroeder emphasized that the Town and its agencies and commissions need to brainstorm ways to address this issue. Mr. Apicella said he recognized his liability if these vehicles use his property and would direct his security to crack down on the trespassers. The Planning Board will refer the question to Parks and Rec for its input.

There was also discussion of the long term fate of the temporary sales structure on the Yorktown Realty site. Mr. Schroeder emphasized that it cannot remain on the site and if the Town wants to move it somewhere for use as a senior citizens' center or whatever, it needs to make that decision quickly, before the next deadline for demolition. He pointed out that the longer the building remained on the site, the more the Town and the public would become “enamored” of the idea that it should remain there. Mr. Apicella repeated his offer to donate the building and its furnishings to the Town on the condition that the Town move it. Mr. Apicella doesn't want it permanently on the site either, because of liability concerns and also because the new homeowners bought on the assumption that the building would be gone. The Land trusts absolutely require the building to be removed because it is incompatible with a conservation area. The Planning Board will notify the Town Board of the building's imminent demolition and the need for a timely decision about moving it.

The second issue is the continued presence of the purportedly temporary sales office in what is supposed to be a building-less conservation easement. The applicant maintained that it still needs the sales office since it is the best marketing tool in a poor real estate market. The last sale in the development was in March 2008. A previous resolution required the sales office to be dismantled when 50% of the project's units had been sold. This threshold has not been met. Mr. Tegeder asked at what point does it make sense to move the sales office out of the temporary building and into one of the units so that the site can be completed and the interests of the Town of Yorktown be protected. The applicant again cited the slow real estate market, the need for the temporary building as a sales tool and the large amount of money invested in its interior decoration.

The Planning Board agreed to take another look at the issue of site remediation in 6 months and the issue of the sales office removal in one year or when 50% of the units had been sold, whichever comes first. Mr. Schroeder asked the Planning Board for assurance that the sales office would not become permanent, citing conservation easement language which says no buildings will be allowed in the conservation easement. Mr. Klaus said that the Planning Board had entertained no proposal that called for making the building permanent. The applicant pointed out that the conservation could be changed only by judicial action or by mutual consent of the parties.