TOWN OF SANTA CLARA BOARD MEETINGS
Minutes of a Public Hearing and Regular Monthly Meeting of the Santa Clara Town Board held on Monday, December 28, 2020, Via Zoom Meetings at 6:00 P.M.
Roll as follows for the Regular Monthly Meeting:
- Andrew McGill - Supervisor
- Richard Lyon - Councilman
- David Perry - Councilman
- Marcel "Mickey" Webb - Councilman
- John Murray - Councilman
- Scott LaMay - Superintendent of Highways
- Laurie McGill - Town Clerk
Pledge of Allegiance to the flag of the United States of America
Called to order by Supervisor McGill at 6:00 P.M for the purpose of considering proposed Local Law No. 01 of 2020. Local Law No. 01 would impose a moratorium until June 30, 2021, on commercial development within the R-C 1.3 and R-C 3.2 zoning districts in the Town of Santa Clara for the purpose of allowing time for the Santa Clara Town Board to develop and enact new regulations governing commercial development in those zoning districts.
Two letters of opposition were received. One from Norfolk Law PLLC on behalf of USL Marina LLC and the other from Saranac Inn Golf & Country Club Inc.
I, on behalf of the Saranac Inn Golf and Country Club, Inc, object to the passing of the moratorium proposed, including the proposed Local Law No. 01 of 2020, A Local Law Establishing A Moratorium On Commercial Development In The R-C-1.3 And R-C-3.2 Zoning Districts Of The Town Of Santa Clara. I request that the proposed moratorium law be rejected by the Town Board and not adopted.
I am making this request based on the irreparable harm it would cause in the operation of the Saranac Inn Golf and Country Club. A moratorium would prevent me from operating as usual, meaning how the golf course has operated for the last 125 years. Saranac Inn Golf and Country Club has never given the citizens of the Town of Santa Clara a legitimate concern with the improvement of property during the normal course of business. Preventing the golf course the ability to upgrade facilities for safety, insurance or mandate purposes is excessive and unnecessary. Requiring a variance with a public hearing for each operational necessitated upgrade is unreasonable. As the proposal stands, anyone could make up a reason for not allowing an upgrade, such as replacing shingles on a roof, upgrading windows, changing doors, building stairs, replacing railings, etc. Not only have we never given the board or anyone else a reason to doubt our commitment to the community, when asked to upgrade a building, by neighbors, for aesthetic reasons, we did so. Under your proposal, we could not. We could not even fix a deck or build a railing. In contrast, the town has approved a lot of building around our property that have drastically changed the wild and beautiful nature of the area since the creation of the golf course.
I feel a select few businesses are being targeted. The Town of Santa Clara has had the opportunity to request a review of the town rules and regulations concerning R-C-1.3 and R-C-3.2 zoning districts to the Planning Board. To date, that request has not been made. If this had been done properly, the moratorium would be unnecessary, making it your mistake, not ours. We, as businesses in Santa Clara, should not be penalized for a board oversight.
As for specifics in the state in Local Law No. 01 of2020
(1) The proposed law is open-ended on several accounts: a. no date certain for termination of moratorium b. no reasonable time set for duration c. the definition of "Development" is non-definitive
(2) The moratorium was in reaction to a non-submitted plan (and possibly non-existent) for changes at a marina that recently sold, when all the new owners have to do is apply for a variance and work with your existing board to come-up with a plan that is acceptable to all involved. Instead, a moratorium is being proposed to put into law that will hurt all the other businesses in Santa Clara. Specifically, the proposed law adversely affects the Saranac Inn Golf and Country Club to operate safely and efficiently.
(3) I have no plans for any major construction or development, but, due to my age, the property is listed for sale as a golf course, and a moratorium will have a chilling effect on our ability to sell the property to a new owner.
(4) This moratorium affects the Saranac Inn Golf and Country Club's ability to use the recreational zoned district of the Saranac Inn Golf and Country Club, which means you are restricting recreational zoning, also.
(5) The moratorium does not affect anyone else but the four businesses in Santa Clara, which appears to be an anti-business stance for businesses that have historically done absolutely nothing to adversely impact the character of the area.
(6) As mentioned, the town board failed to refer a moratorium proposal to the Planning Board, thus creating this untenable situation.
(7) Unless you are proposing not allowing any property owner to do any "man-made" improvement or adjustments on their property in Santa Clara is unreasonable to mandate that only Saranac Inn Golf and Country Club, on this end of the lake, be prohibited from making repairs and maintaining our property.
James R. Connors
Dear Honorable Members of the Santa Clara Town Board:
As you may know, I am the attorney for USL Marina, LLC (hereinafter referred to "USL Marina"). I am writing you on its behalf to express its opposition to proposed Local Law No. 01 of 2020, A Local Law Establishing A Moratorium On Commercial Development In The R-C~1.3 And R-C-3.-2 Zoning Districts Of The Town Of Santa Clara. As its title reflects, this proposed law would place a moratorium on development in zoning district R-C-3.2 and also in zoning district R-C-1.3, of which approximately half of this district is comprised of land owned by USL Marina. As you know, USL Marina's property was once known as Hickok's Marina, located in the Fish Creek Pond area. It bears Tax Map Parcel numbers 453.3-1-1.100, 453.3-1-1.200, 453.3-1-1.300, and 453.3-1-7. The proposed moratorium will have a severe impact on USL Marina's ability to use its land, operate a safe and functional marina, which is currently in poor condition, and to make improvements which, in large part, involves lengthening existing boat docks.
Moratoria are designed to allow local legislative bodies to take reasonable measures to halt for a reasonable time construction or development activities in areas for zoning or rezoning. See Lake Illyria Corp. v. Gardiner, 43 A.D.2d 386, 387 (3d Dep't 1974). While the courts consider it to be a proper exercise of power for a town to put in place such measures when the town is actively engaged in the enactment of a zoning amendment, where there is no meaningful progress towards preparation of the zoning amendment, the courts have viewed such moratoria as an abuse of power. Id.
In a Court of Appeals case, Charles v. Diamond, 41 N.Y.2d 319 (1977), New York's highest court held that to justify interference with the use of property the municipality must establish that (1) it was enacted in response to dire necessity, (2) its actions were reasonably calculated to alleviate or prevent a crisis condition, and (3) it is presently taking steps to rectify the problem. See also Hennessy, James J., Legal Memorandum, Moratoria (N.Y.S. Department of State, Division of Legal Services).
Adhering to the Charles holding, the New York cases to follow have identified five key elements that are requisite for a legally defensible moratorium. The land use moratorium should: (1) have a reasonable time frame as measured by the action to be accomplished during the term; (2) have a valid public purpose justifying the moratorium or other interim enactment; (3) address a situation where the burden imposed by a moratorium is being shared substantially by the public at large; (4) strictly adhere to the procedure for adoption laid down by the enabling acts; and (5) have a time certain when the moratorium will expire. See N.Y.S. Department of State, Division of Local Services, Land Use Moratoria (Reprinted 2013).
Here, there is no dire necessity to enact a moratorium nor do so to prevent a crisis condition. USL Marina's preliminary plans, which were shared with Town leaders, establish this. Moreover, there is no public purpose justifying the moratorium. Hickok's Marina has long existed on Upper Saranac Lake. USL Marina seeks only to repair and improve the marina so that it is a modem, safe and environmentally friendly facility. As indicated above, what has been contemplated is namely an extension of the existing docks to provide more slips to accommodate modem boats and the Town residents and visitors who want to enjoy boating on the lake.
Additionally, the moratorium proposed targets the only two commercial districts in the Town (i.e., R-C-1.3 and R-C-3.2). USL Marina owns more than 20 of the land in these two districts. The three other properties in these commercial districts are the Trading Post, Saranac Inn Golf Club and The Point. It is unknown whether these businesses have plans to improve their properties with further expansion, construction or development. However, it is well known that USL Marina is currently planning to extend the length of its existing docks. Zoning amendments that single out a certain property for different, less favorable treatment than other properties may constitute unconstitutional reverse spot zoning. See Peck Slip Assoc. LLC v. City Council of City ofN. Y, 26 A.D.3d 209 (Ist Dep't 2006); see also Nicholson v. Incorporate Village of Garden City, 112 AD.3d 893 (2d Dep't 2013). While USL Marina's property has not been explicitly singled out by the proposed moratorium, the administration of this moratorium would be, in effect, discriminatory. See e.g. FGL&L Property Corp. v. Rye, 66 N.Y.2d 111 (1985); see also Suffolk Housing Services v. Brookhaven, 70 N.Y.2d 122 (1987). Indeed, the burden imposed by the moratorium is not being shared substantially by the public at large.
Furthermore, the proposed local law contains no termination date. Rather, it says that the moratorium may be terminated before June 31, 2020 and that the Town Board may extend the moratorium as it sees fit. In other words, the moratorium will last as long as the Town Board desires. A moratorium that will continue with extensions at the whim of the Town Board will have a devastating effect on USL Marina's ability to use its property and to operate a sustainable marina. Such adverse impacts are why the New York courts mandate a date certain time for termination of moratoria
Turning to the procedural validity of the proposed moratorium, since moratoria are regarded as zoning measures, proper procedure within the zoning context must be followed. See Temkin v. Karagheuzoff, 34 N.Y.2d 324 (1974). Moratoria put in place without following proper procedure are annulled and vacated. See, e.g., B&L Dev. Corp. v. Town of Greenfield, 146 Misc.2d 638 (Sup. Ct., Saratoga Co. 1990). This procedure, as set out in §12.l0 of the Town of Santa Clara's Land Use Code, requires that the proposed moratorium "be referred to the Planning Board for report thereon before a public hearing." (Emphasis added.) After a thorough review of the minutes of both Town Board and Planning Board meetings available on the Town's website, we were not able to determine whether the proposed moratorium was referred to the Planning Board, and whether a report was prepared by the Planning Board on the matter. We did find, however, that during a meeting held by the Planning Board on September 15,2020, after the Town Board had already passed a resolution scheduling a public hearing on the moratorium, members of the Planning Board expressed disappointment that they were not notified of this action. See Town of Santa Clara Planning Board Meeting Minutes, September 15,2020. The meeting minutes from the Planning Board meeting to follow, held on October 27,2020, do not provide any additional information as to whether the proposed moratorium was referred to the Planning Board for a report. See Town of Santa Clara Planning Board Meeting Minutes, October 27, 2020. The November 24, 2020, meeting minutes indicate that the Planning Board is still waiting to receive word from the Town Board. See Town of Santa Clara Planning Board Meeting Minutes, November 24, 2020.
In addition to questioning whether the proposed moratorium was referred to the Planning Board for a report, USL Marina would also like to express its concern that bias against USL Marina may exist amongst the Planning Board members. As discussed herein below, without any formal proceedings, Planning Board Chairwoman Scottie Adams appears to have come to the conclusion that USL Marina and its proposed plans are not beneficial to the Town of Santa Clara. Furthermore Pursuant to §12.10(5) of the Town of Santa Clara's Land Use Code, if there is a protest to a proposed zoning change signed by the owners of 20 or more of the area of land included in the proposed changes, the amendment will not be effective except "by the favorable vote of a majority of all members of the Town Board." (Emphasis added.) New York State Town Law §265(1) (a) further specifies that necessary vote, upon receiving such written protest, is at least three-fourths of all the members of the Town Board - not a quorum. As mentioned above, USL
Marina owns 20 (or more) of the land that would be impacted by the moratorium. Kindly accept this letter as USL Marina's written protest to the proposed moratorium.
There also has been absolutely no progress or action taken to rectify the Town Board's concerns with the zoning rules and regulations governing zoning districts R-C-1.3 and R-C-3.2. As stated above, to lawfully pass a moratorium, a municipality must have made meaningful progress in resolving any zoning problem it has identified. Charles, supra; Lake Illyria Corp. supra. The November 12, 2020 resolution passed by the Town Board to seek bids from consultants for some future anticipated preparation of a possible comprehensive plan does not constitute meaningful progress. Bids from consultants were just collected on December 7. 2020. At this rate, the proposed moratorium will last for a year or more while the Town contemplates, drafts and executes a plan. This scenario is exactly what the courts want to avoid. At the beginning of the moratorium the municipality must be well on its way to the make the zoning change it intends to implement to keep the moratorium duration at a minimum.
Notwithstanding the foregoing, the Town recently created precedent in changing zoning rules and regulations for commercial zones without engaging in the arduous process of overhauling its entire building and zoning code by developing a new comprehensive land use plan. In April of 2019, shortly before USL Marina entered into a contract to purchase Hickok's Marina, the Town Board held a public hearing on a proposed local law. The objective was to change one of the Hickok's Marina parcels, Tax Map Parcel-number 453.3-1-1.300, from being in the R-I.3 zoning district to being in the R-C-l.3 zoning district Per the Town Board this change was done "to allow the continued operation of a valuable service to the community and to be compatible with the surrounding properties." See Town of Santa Clara Planning Board Meeting Minutes, April 3, 2019. This amendment was in harmony with the current land use code's plan which states, in pertinent part:
It is the further purpose and objective of this local law to ensure optimum overall conservation, protection, development and use of the unique scenic, aesthetic, wildlife, recreational, open space, historic, ecological and natural resources of the Adirondack Park.
With the present situation, the Town Board's 2019 approach should be employed here. Zoning rules and regulations certainly may be amended or adopted without being a part of the drawn-out development of a comprehensive plan. The Town's past acts are evidence of this. Nonetheless, as written now, the proposed moratorium law will prohibit USL Marina from continuing or, at the very least, safely continuing to operate the marina to provide, which the Town Board believes is "a valuable service to the community" now "compatible with the surrounding properties." The proposed moratorium law defines the term "development" to mean "any man- made change to improved or unimproved real property including, but not limited to, buildings or other structures, mining, dredging, filling, paving, grading, excavation, extensive clearing of vegetation, drilling operations or storage of equipment or materials." Given the broad definition of "development," it will be unlawful for USL Marina to perform repairs or maintenance of its marina facility and lands. For example, a leaky roof cannot be repaired. As another example, a loose or broken board on the existing dock may not be replaced. Literally, no man-made changes in the form of repairs, maintenance or upkeep will be permitted with the proposed new law. Additionally, no boats, boat trailers or marina equipment may be stored on the marina property.
It is evident that stopping USL Marina's plans to improve and develop the marina was the Town Board's only goal when it proposed a moratorium. The decision to pursue a moratorium was founded upon misplaced fear of what USL Marina planned for the outdated and run-down marina. We have several reasons for asserting this. Two of these reasons are discussed below.
Enclosed is a copy of an email chain initiated on August 18, 2020, by someone using the email address of Mr. William Curran and Mrs. Patricia Curran, Lower Saranac Lake residents (hereinafter referred to as the "Curran email"). The Curran email opposed LS Marina, LLC's Lower Saranac Lake marina project and warned that "the same developer" is coming to Upper Saranac Lake with the purchase of Hickok's Marina (It is true that Mr. Michael Damp is a member of LS Marina, LLC and USL Marina.) The Curran email suggests that a "mega-marina" is planned for Upper Saranac Lake. The Curran email was sent to Mrs. Lynne Perry, a member of the Town of Santa Clara Board of Assessment Review and the Upper Saranac Lake Association. Additionally, Mr. Tom Phillips, upon information and belief, a member of the Upper Saranac Lake Association or Upper Saranac Lake Foundation or both, also emailed Mrs. Perry about my client and Hickok's Marina by forwarding the Curran email. Included as recipients of this email to Mrs. Perry were Upper Saranac Lake Foundation and Upper Saranac Lake Association members Messrs. Gregory Bebernitz and Stephen Maikowski. As the email chain demonstrates, the Curran email states that USL Marina was intending to change Hickok's Marina to model the larger marina that was proposed on Lower Saranac Lake by LS Marina, LLC. This representation is false. Nonetheless, it had a rippling effect, instilling fear in Town officials and some Town residents that a big bad developer was coming to town to create a behemoth marina that would adversely impact Upper Saranac Lake and the Town of Santa Clara
In addition, Ms. Scottie Adams, chairwoman of the Town Planning Board was quoted in a September 10, 2020 article in the Adirondack Explorer expressing her concern of USL Marina's purchase of Hickok's Marina and its plans with the marina. The Adirondack Explorer stated:
Scottie Adams, Chairman of the Santa Clara Town Planning Board, wrote in a warning. 'I would ask that you please keep in mind the precedent that will be set by the APA decision on this matter. The same developer has purchased Hickok's Marina in the Fish Creek Area, located in the Town of Santa Clara. The marina is located in a high traffic area, between Fish Creek campsites and Upper Saranac Lake. I would imagine similar issues concerning this newly purchased marina will be brought before the AP A in the future,' Adams wrote.
Not a coincidence, on September 10,2020, the first scheduled Town Board following the Curran email and Ms. Adam's comment warning of USL Marina plans, the Town Board passed a resolution scheduling a public hearing on the moratorium proposing to stop all development in R- C-1.3, USL Marina's zoning district. Based upon the foregoing, it is evident the proposed moratorium is intended to strip away the property rights of USL Marina and stop it from improving the marina. It was concocted out of fear created by rumors and the spread of misinformation.
USL Marina strongly opposes the proposed moratorium law. It should not be adopted. The creation of rules and regulations of commercial marinas in the Town can be accomplished without a moratorium and without same being tied to the development of a comprehensive plan. Accordingly, on behalf of USL Marina, I request that the proposed moratorium law be rejected by the Town Board and not adopted. Please be advised that nothing in this letter is intended to waive any rights, legal arguments, claims, or defenses of USL Marina, and it hereby reserves same.
Sincerely, Norfolk Law PLLC
I; Michael Damp. an authorized member of USL Marina, LLC, hereby adopt the foregoing statements and points on behalf of USL Marina, LLC. In addition, on behalf of USL Marina, LLC, I hereby oppose the proposed moratorium. including the proposed Local Law No. 01 of 2020, A Local Law Establishing A Moratorium On Commercial Development In The R-C-l.3 And R-C-J.2 Zoning Districts Of The Town Of Santa Clara. On behalf of USL Marina, I request that the proposed moratorium law be rejected by the Town Board and not adopted.
December 28. 2020
USL Marina, LLC
---------- Forwarded message ---------
From: Tom Phillips
Date: Wed, Aug 19,2020,8:34 AM
Subject: Fwd: Proposed Marina Expansion
To: Lynne Perry, Stephen D Majkowski ,
I think this is of major interest for everyone on the upper lake. It is time sensitive. Tom
---------- Forwarded message ---------
Sent From ,\OJ 'vlohi!..: i\'lail
(jet lite: n~\\ . \ 0 L 1I1'P: mail.mobiIe.aol.com
On Tuesday, August 18,2020, Penny Curran wrote:
Sent from my iPhone
Begin forwarded message:
From: Penny Curran
Date: August 18, 2020 at 10:50:43 PM EDT
Subject: Proposed Marina expansion
Date: August 18, 2020 at 10:50:43 PM EDT
Subject: Proposed Marina expansion