HomeMy WebLinkAboutPB Minutes 1994-08-16a
TOWN OF ITHACA PLANNING_ BOARD
AUGUST 16,'1994
FILED
TOWN OF ITHACA
D.
.,e •
The
Town of
Ithaca
Planning Board met in regular session on
Tuesday,
Ithaca,
August
New York
16, 1994,
at 7:30
in Town Hall, 126 East Seneca Street,
p.m.
PRESENT: Chairperson Robert Kenerson, Gregory Bell, Eva Hoffmann,
James Ainslie, Herbert Finch, Stephen Smith, George
Bayer, Jonathan Kanter (Town Planner), George Frantz
(Assistant Town Planner), John Barney (Town Attorney).
ALSO PRESENT: Bill & Mary Webber, Jerold Weisburd, Monty Berman,
Suzanne, Daryl, Danica & Zoe Anderson, Susan
Bissell, Pamela Carson, Nancy Brown, Susan
McGreivy, Joan Bokaer, Kate Benjamin, Sandy Wold,
Doug Shire, Jennifer & John Bokaer- Smith, Greg
Thomas, Judy Green, Steven Gaarder, Jay Jacobson,
Scott Whitham, Karen Knudson, Deena Berke, Cisela
Edstrom Wildes, Janet Hawkes, Claudia Weisburd.
Chairperson Kenerson declared the meeting duly opened at 7:30
p.m. and read the Fire Exit Regulations to those assembled, as
required by the New York State Department of State, Office of Fire
Prevention and Control.
AGENDA ITEM: PERSONS TO BE HEARD.
There were no persons present to be heard. Chairperson
Kenerson closed this segment of the meeting.
AGENDA ITEM: APPROVAL OF MINUTES - AUGUST 2, 1994.
MOTION by Herbert Finch, seconded by James Ainslie:
RESOLVED, that the Minutes of the Town of Ithaca Planning
Board Meeting of August 2, 1994, be and hereby are approved as
written.
There being no further discussion, the Chair called for a
vote.
Aye - Kenerson, Bell, Hoffmann, Ainslie, Finch, Smith, Bayer.
Nay - None.
The MOTION was declared to be carried unanimously.
AGENDA ITEM: SKETCH PLAN REVIEW: DISCUSSION OF A SKETCH PLAN FOR
PHASE I OF THE PROPOSED " ECOVILLAGE AT ITHACA COHOUSING
COOPERATIVE" PROJECT, PROPOSED TO CONSIST OF 30 DWELLING UNITS (15
DUPLEXES) AND A COMMUNITY CENTER CLUSTERED ON APPROXIMATELY THREE
ACRES OF A THIRTY ACRE PARCEL, TO BE SUBDIVIDED OFF OF THE LARGER
177.8 + /- ACRE ECOVILLAGE PARCEL, LOCATED ON THE SOUTH SIDE OF
MECKLENBURG ROAD (NYS ROUTE 79) JUST WEST OF WEST HAVEN ROAD, TOWN
ti
r
Planning Board Minutes
2
OF ITHACA TAX PARCELS NO. 28 -1 -26.2
DISTRICTS R -15 AND R -30. ECO- VILLAGE
GROUP, APPLICANT.
August 16, 1994
AND 28 -1 °26.8, RESIDENT'S
AT ITHACA, OWNER; RESIDENT'S
Chairperson Kenerson declared the discussion of the above -
noted matter duly opened at 7:35 p.m. and read aloud from the
Planning Board agenda to those assembled.
Chairperson Kenerson stated that there were legal
complications that needed to be considered by the Planning Board at
this meeting.
Joan Bokaer of the Resident's Group, addressed the Board and
stated that the Resident's Group would be the developers of this
project. Ms. Bokaer stated that they were before the Board tonight
to request approval to build 15 duplexes approximately 1 1/2 miles
from the Octopus on West Hill. The Resident's Group would be
purchasing 30 acres from the EvoVillage at Ithaca parcel and
forming Resident's Cooperative. Ms. Bokaer stated that EcoVillage
project had received national attention even though they had not
yet built anything. Ms. Bokaer stated that the Resident's Group
had started a national search for a design team for this project.
The Resident's Group was looking for a design team of people who
were very aware of environmental issues, who could work with the
residents as a group, who had a track record in multi- family
housing, and that could build housing that would be both affordable
and beautiful. Ms. Bokaer stated that they received proposals from
all over the country and discovered that the greatest talent was in
Ithaca, and with great satisfaction, the Resident's Group hired
Jerold and Claudia Weisburd of Housecraft Builders. Ms. Bokaer
stated that 20 families committed to putting up $10,000 each to pay
for the preconstruction costs. There are no investors, all of the
costs are being paid out of pocket by the Resident's Group, Ms.
Bokaer stated that the Master Plan for the neighborhood was drawn
up and drawings were done that very closely represents what the
Resident's Group wanted. Ms. Bokaer stated that for her
personally, the most satisfying and exciting part of this project
has been the people it has attracted.
Suzanne Anderson of 1303 North Cayuga Street, addressed the
Board and stated that her family of 6 had moved to Ithaca two weeks
ago to be part of the EcoVillage project. Ms. Anderson stated that
her family always had a concern for the environment but got caught
up with career issues and found themselves wondering if there was
a better way to live. The Andersons looked at cohousing options
around the United States and found that the EcoVillage project
would be the right home for them. Ms. Anderson asked that the
Planning Board help make the EcoVillage a reality.
Steven
Gaarder
of 56 Durfee Hill
Road,
addressed
the Board and
stated that
he had
lived
in Ithaca
for
20 years.
Mr. Gaarder
3
v
Planning Board Minutes
K?
August 16, 1994
stated that EcoVillage held the possibility of living a long held
dream of living in a close community.
Mary Webber of 424 East Seneca Street, addressed the Board and
stated that she and her husband had given up very gratifying
careers because the EcoVillage project is an even more gratifying
potential. Ms. Webber stated that the EcoVillage could be a model
for other communities to follow.
Bill Webber of 424 East Seneca Street, addressed the Board and
stated that he thought that the EcoVillage project was the ultimate
in preventative medicine and that he was all for it.
Doug Shire of
207 Cleveland
Avenue, addressed the
Board
and
stated that he and his wife moved from California about
two months
ago to be a part of
EcoVillage. Mr. Shire stated that
he and
his
wife felt that they
could live
in harmony with nature and with
each
other. Mr. Shire stated that
their savings were tied
up in
this
project and that he
could not
wait to see it happen.
Jay Jacobson of 1729 Slaterville Road, addressed the Board and
stated that he has lived in Ithaca for 15 years and would be
retiring in five to six years. Mr. Jacobson stated that he had to
ask himself if EcoVillage was the kind of place he would want to
live in for the rest of his life. After a year of checking into
the EcoVillage project, he determined that their interests were
sincere. Mr. Jacobson stated that he would be living on a fixed
income and is very worried about costs involved. Mr. Jacobson
stated that he hoped that the people of EcoVillage could work with
the Town of Ithaca to resolve whatever issues or problems there may
be so that the residents could develop quickly and move in quickly.
Scott Whitham of the EcoVillage Board, addressed
stated that on June 16, 1994, the Board passed a
transfer 30 acres to the First Resident's Group (FRG)
stated that FRG is acting as owner and developer of
the Board and
resolution to
. Mr. Whitham
the property.
(The resolution
1994, is hereto
of the EcoVillage Board of Directors dated June 16,
attached as Exhibit #1)
Jerold Weisburd of Housecraft Builders, addressed the Board
and that they were seeking the Planning Boards comments and
questions. Mr. Weisburd gave a presentation of the proposed
construction of the duplexes, energy towers, and the community
building.
The Board discussed with Mr. Weisburd the drawings shown
during the presentation and the connections to the public
utilities. There was some discussion regarding parking, emergency
access, car pooling, and open space on the 30 acre parcel.
n
Planning Board Minutes 4 August 16, 1994
Mr. Weisburd stated that the units would be very tightly
clustered together on a hillside surrounded by open agricultural
fields. Mr. Weisburd stated that close clustering was to keep out
the automobile, this was intended to be a totally car free
community. Mr. Weisburd stated that he believed that the proposed
neighborhood integrates the Town's Comprehensive Plan, the Town's
existing cluster regulation and the goals and aspirations of the
people of the Resident's Group. The proposed project consisted of
15 duplexes and at one end of those duplexes a common house would
be located. Mr. Weisburd stated that one of the goals of the
Comprehensive Plan was energy efficiency, and all of the houses
would be built with two walls air - tight, super insulated, and with
a huge commitment toward the sun. The south walls of the building
would be tall and most of the glass of the house would be
concentrated on those south walls. The houses would be
approximately 800 square feet up to 1400 square feet in size. Mr.
Weisburd stated that one of the ways the smaller house size is
achieved is by removing the duplicated elements and putting them
into the common house, with the laundry facilities, guest rooms,
dining facilities, and craft shops in the community building it
cuts down on the need for the additional room in each individual
living unit. The children can play safely without the worry of
cars.
Board Member Gregory Bell asked Mr. Weisburd to explain the
tower -like structures that appeared on the drawings being
discussed.
Mr. Weisburd stated that they were energy towers located among
the houses and an additional tower located at the community
building. The towers located among the houses are energy centers,
all of the utilities go to that point and from that point they go
out through the crawl spaces to the individual houses. This allows
the removal of any combustion from the airtight houses so that
there is no indoor air pollution. The towers themselves are
chimneys for the exhaust gases and the little roof over the top of
them are something that photovoltaics can be applied to in order to
help power some of the machinery in the energy center. Mr.
Weisburd stated that the houses would have two drain pipe systems,
one for black water and one for gray water which will all flow to
the energy centers. In the case of the community building there is
a small windmill envisioned to create hot water for the laundry,
the roof is steeply pitched toward the sun so that solar collectors
can be placed for hot water. Most of the roofs in the entire
project are steeply pitched into the sun to receive solar
collectors or are fairly parallel in the winter to let the sun
pass, which allows the sun to get into the street and into the
houses on the north side of the development. Mr. Weisburd stated
that some of the space at the top of the energy centers would be
considered as roosts for certain wild birds.
Planning Board Minutes 5 August 16, 1994
Continuing, Mr. Weisburd stated that he felt that EcoVillage
was trying to get energy efficiency, the clustering, the community,
the land use, and conservation to work together. Mr. Weisburd
stated that the neighborhood is a cooperative, which means that one
entity owns the land and when you join you become a shareholder,
which in turn makes you an owner of the company that owns the land.
The corporation issues proprietary leases to exclusive use of a
space, which is issued as long as you own the stock. Each unit is
a two family house, put into four groupings, each group is built
around an energy center, and from that energy center goes out the
heating pipes and electrical service and from the houses to the
energy center goes the dual pipe system. Solar machinery would be
centered in the energy enters.
Mr. Weisburd then showed an overlay which showed how the
Resident's Group planned on tieing into the Town of Ithaca's
infrastructure. Mr. Weisburd stated that there would be three
extensions of the watermain to each of the energy centers, there
would be two to three connection points to hook up everything in
the community to the gas and electric, and there would be three
sewer laterals to pick up everything for the community. Mr.
Weisburd showed proposed internal emergency access drives that
would take emergency vehicles to within 100 feet from any
individual house. The proposed stormwater system would consist of
a retention pond and that through a few main collector lines,
everything would be drained to that pond, with the idea that there
would be no net increase in stormwater runoff from the site.
Board Member James Ainslie asked if the dwellings would have
cellars.
Mr. Weisburd responded that the dwellings would have crawl
spaces.
Mr. Ainslie asked if the utilities would all be underground.
Mr. Weisburd responded, yes.
Town Planner Jonathan Kanter asked for clarification regarding
the sewer main, whether there would be an extension built by the
Resident's Group to connect to the manhole and whether the private
sewer laterals are what Mr. Weisburd was referring to as the actual
connections to the units.
Mr. Weisburd stated that
lines would be built to Town
the Town.
Mr. Weisburd stated that
Town of Ithaca for a 30 acre
and to develop 15 duplexes
it was envisioned that standard sewer
specifications and then dedicated to
the Resident's Group was asking the
subdivision from the 177 acre parcel,
under the cluster regulations. In
a
a
Planning Board Minutes 6 August 16, 1994
addition
to the requests listed above, Mr. Weisburd stated that the
Resident's
Group was
asking for some waivers to.
1)
Be able to
put the duplexes as close as
the state code
allows, and
not to have to stick to the 30 -foot separation
required in
the Town's Zoning Ordinance;
and
2)
Allow some
waiver of the 30 -foot height
limit for the
towers and
a few of the houses; and
3)
Allow this
to be reviewed under the cluster
subdivision
regulations,
which he felt were designed
for this type of
project.
Mr. Weisburd concluded by stating that there would be revised
drawings submitted for the October Planning Board Meeting and that
he was excited to be working with the Resident's Group and with the
Town of Ithaca on this project.
Board Member Stephen Smith asked how spaces would be
identified on the leases without the use of lot lines or parcel
numbers.
Claudia Weisburd addressed the
cooperative would own the land and
units with a proprietary lease which
the dwelling unit in perpetuity.
Board and responded that the
the proprietor would own the
gives them exclusive rights to
Mr. Smith stated that the entrance way and back yards were
delineated and asked how that would be identified.
Ms. Weisburd responded that the yards and entrance ways were
not described.
Chairperson Kenerson asked if each lease would pay equal taxes
and insurance.
Ms. Weisburd responded, yes.
Mr. Weisburd stated that there was a difference in taxes based
on the size of the unit.
Chairperson Kenerson asked if this project would be tax
exempt.
Ms. Weisburd responded, no.
Board Member Herbert Finch asked what the relationship was
between the Resident's Group, who would now own 30 acres of
property, and the EcoVillage at Ithaca people, who own 140+/ -
acres.
Jerold Weisburd responded that EcoVillage at Ithaca is a
different entity than the Resident's Group.
Planning Board Minutes
7
August 16, 1994
Mr. Finch asked if
an
additional
neighborhood was ready to be
organized, would they
buy
a piece of
land.
Mr. Weisburd responded that neighborhood 2 would probably join
neighborhood 1 and they would work together instead of forming many
cooperatives.
Mr. Finch asked if it were likely that there would be five
cooperatives.
Claudia Weisburd responded that the idea is to have one
cooperative that could expand should that eventuality arise.
Mr. Finch stated that the first founders would, in effect,
charter the next group.
Ms. Weisburd responded that the first residents would form a
cooperative, should a next group come along, then the cooperative
would expand.
Mr. Finch asked where EcoVillage fit into the scheme of things
should that happen. Mr. Finch stated that EcoVillage could decide
not to sell any more land.
Ms. Weisburd stated that part of the reason that the
neighborhood is designed the way it is would be so that if
EcoVillage at Ithaca says they will not sell any more property, the
first neighborhood could exist independently as they are if nothing
else happens on the land of EcoVillage at Ithaca.
Board Member Stephen Smith asked if the access currently
planned for was by easement.
Ms.
way. The
Weisburd stated that at this point, it could go either
access road would be across EcoVillage at Ithaca land and
the Resident's Group
and EcoVillage at
Ithaca are
in negotiation to
see if a
strip of land
could go along
with the
30 acre parcel so
that the
Resident's
Group would own
the road
or it would be a
permanent
easement.
However, that has
not been
worked out yet.
Mr. Smith stated that the property would be landlocked without
any direct access to a road. Mr. Smith stated the he felt that the
Board would want some frontage to the 30 acre parcel on some main
road in the event that there is no further development.
Town Attorney John Barney stated that the Resident's Group
needed to have deeded right to an existing public road.
Claudia Weisburd
stated
that one of the
conditions of the sale
of the 30 acre
parcel to
the Resident's
Group was that it be
contingent upon
the Planning
Board approval
so that if the Planning
P
Planning Board Minutes 8 August 16, 1994
Board does not approve the project in a manner that works for this
group, then that division will not take place.
Attorney Barney stated that the Resident's Group was asking
for subdivision approval of a 30 acre parcel out of the 177+/ -
acres. Attorney Barney stated that a subdivision can not occur
unless there is road frontage, which is Town law. There needs to
be some assurance that the Resident's Group has frontage and the
60 -foot strip to a public road must be deeded. Attorney Barney
stated that he was having difficulty with a subdivision without lot
lines. Attorney Barney asked if the Resident's Group was planning
to come in with a plat that shows 15 duplex units on it identified
by letter or number.
Claudia Weisburd responded, yes.
Jerold Weisburd stated that the
that the 15 duplexes be treated as
because the Town's regulations say a
space, the regulations do not say that
and the Resident's Group is saying tha
to the cluster regulations.
Resident's Group was asking
a cluster subdivision and
lot is defined as a unit of
you have to have deeded land
t, therefore, it does conform
Claudia Weisburd stated that the plat that would be filed
would indicate each dwelling unit.
Jerold Weisburd responded that could be done, although in the
past surveyor were asked to do an as -built survey plat that
superseded the initial plat so that it was very precise.
Attorney Barney asked if someone needed to leave the community
and the property needed to be sold, what exactly would be sold.
Claudia Weisburd responded that the persons shares would be
sold, which are pertinent to a proprietary lease of a unit.
Board
Attorney Barney asked from the time you
show that on a plat,
if a sale or transfer was
how
definitive are the
dimensions of those units of that point,
it
is subject to change as
construction occurs or
is it something that
will
be laid out with
a fair degree of precision
that would
say
that
two years from now,
after construction
is complete, this
is
how
the
community
will
look
from
the
top.
Jerold Weisburd responded that could be done, although in the
past surveyor were asked to do an as -built survey plat that
superseded the initial plat so that it was very precise.
Attorney Barney asked if someone needed to leave the community
and the property needed to be sold, what exactly would be sold.
Claudia Weisburd responded that the persons shares would be
sold, which are pertinent to a proprietary lease of a unit.
Board
Member Stephen
Smith asked
if a sale or transfer was
subject to
the approval of
the cooperative.
Ms. Weisburd responded that it would not be subject to
approval if sold to a spouse, however, it would be subject to
approval for a non - family member to come in.
Planning Board Minutes 9 August 16, 1994
Chairperson Kenerson asked if the bank would receive a copy of
the lease.
Ms. Weisburd responded that the bank holds the lease as a
security interest. In the event of a transfer, the unit is
transferred not the property, therefore, there is always access to
water and electric for each unit.
Attorney Barney asked if the cooperative could cut off the
electric, water and sewer supply.
Ms. Weisburd responded, no.
Attorney Barney stated that if the cooperative goes bankrupt,
the owners are not protected because of the dependency for
utilities from the cooperative.
Ms. Weisburd responded that the shareholder is the cooperative
if something happens and it needs to be disbanded and distribute
its assets.
Attorney Barney stated that the owners of the leases may at
that point ask the Town of Ithaca to take over the water, sewer,
utilities, and the roads.
Ms. Weisburd responded that they would not have good grounds
to do that since those things are not going to be built to Town
specifications. However, if they did want to do that the lease
holders would have to come to the Board for approval, and the Board
could just say no.
Board Member Gregory Bell asked if it would be a more
realistic alternative, given Attorney Barney's scenario that a
single for profit management company would buy it and rent it out
as apartments. Mr. Bell stated that seemed to be more feasible
than what Attorney Barney was asking.
Town Attorney John Barney stated that if the Resident's Group
was asking for a subdivision, then have a true subdivision or go to
a SLUD which can be tailored to the specific needs of this
Resident's Group.
Town Planner Jonathan Kanter stated that he did not have any
objections to the proposal conceptually, but that there were zoning
problems. Mr. Kanter stated that Section 68 of the Zoning
Ordinance says, "Other than in a Multiple Residence District there
shall not be more than one principal building on any lot in any
residential district." Mr. Kanter stated that there were
additional provisions in Zoning Ordinance regarding the R -30
District that says, "There shall not be more than two dwelling
Planning Board Minutes 10 August 16, 1994
units on a lot in an R -30 Zone." Mr. Kanter stated that there were
other zoning issues that needed to be addressed as well.
Claudia Weisburd suggested that the Cluster subdivision
regulations supplant /replace the zoning with respect to the points
made by Town Planner Jonathan Kanter. The zoning is applied when
the Planning Board is confronted with the number of dwelling units
can go on a parcel. The cluster is in terms of the number of
dwelling units and not conventional lots. Ms. Weisburd indicated
that in the terminology of the Cluster Subdivision Regulations it
replaces the zoning with respect to the issues being discussed.
Town Attorney John Barney stated that the Cluster Subdivision
Regulations allows one to make smaller lots. The only significance
of the dwelling units is to say that you can't have a greater
density by virtue of cluster than you could have with conventional
subdivision, which is the only purpose for discussion of dwelling
units to measure the maximum number of units you can put on the
entire clustered subdivision.
Ms.
Weisburd
asked how
the
cluster subdivision regulations
allow six
units in
a stacked
form
in a single structure.
Assistant Town Planner George Frantz responded that the
regulations allow six dwellings per structure, each dwelling being
on a separate lot.
Jerold Weisburd responded that it actually says, "In a multi-
story, multi - family unit."
Town Attorney John Barney stated that it says multi- story, but
it does not say you can stack the units up.
Mr. Weisburd responded, it certainly implies it.
Town Planner Jonathan Kanter stated that the purpose of
cluster is to allow the Planning Board discretion in waving certain
of the lot, dimensional, and some of the building configurational
aspects, but it does not give the Planning Board the authority to
change the zoning.
Ms. Weisburd stated that part of the problem was the
definitions of a "lot" and a "subdivision ". Ms. Weisburd stated
that the definitions according to the Town Zoning Ordinance and
Cluster Regulations, they state that "A Subdivision is the division
of a parcel of land into two or more lots, plots, sites, or other
divisions of land ", and a lot was defined as "A parcel of land or
volume of space". Ms. Weisburd stated that the proposal before the
Board was a division into volumes of space for use and transfer.
r_
Planning Board Minutes 11 August 16, 1994
Mr. Kanter responded that the key word was "division ". To
file a subdivision plat you need to show something that shows
division of the land or space. A possibility would be to identify
an outline around the living space or unit, identifying that as a
leasable or saleable entity, which can be shown on a plat as well
as in the cooperative description.
Ms. Weisburd asked if it would be acceptable for the units to
be surveyed and not deeded.
Mr. Kanter responded,
yes.
Mr.
Kanter stated
that they needed
to be identified by survey
or
some
other specific
description.
Town Attorney John Barney asked if there was some antipathy to
going through the process for a Special Land Use District.
Attorney Barney stated that a SLUD gives the Resident's Group a
better position than a clustered subdivision because it removes any
question of ambiguity once it is adopted.
Ms. Weisburd stated that the two reasons for the resistance of
the Special Land Use District (SLUD) were the time and finances
involved in the process of making a SLUD, and because the purpose
of making the project, this project should be a normal development,
and it should be easier to do without so many hurdles.
Attorney Barney stated that by going with a SLUD, it may be
quicker because you write the law that is tailored to the specific
needs of the group, otherwise, there are variances that need to be
obtained by appearing before the Zoning Board of Appeals in
addition to the appearances before the Planning Board.
Chairperson Kenerson stated that the Comprehensive Plan is
only a plan, it is not law, and the Planning Board is trying to fit
this project into the boundaries of the law.
Assistant Town Planner George Frantz asked. if there was a
problem from the Resident's Group standpoint of having a
cooperative that would be on 30 lots.
Mr. Weisburd responded that it does not work with the building
codes in terms of concentration, energy system, and the distances
between buildings.
Ms.
Weisburd
stated that there
was no legal entity that does
that, it
is either
a condominium or
a cooperative.
Mr. Weisburd stated that 8 months ago, the Resident's Group
came to him and asked if this project was possible, and could it be
done, and Mr. Weisburd told them, yes. Mr. Weisburd then stated
that he did not want to be wrong.
Planning Board Minutes 12 August 16, 1994
Chairperson Robert Kenerson stated that the Board Members
needed to make suggestions to the Group to make the proposal more
acceptable. Chairperson Kenerson stated that the next step would
be the subdivision of the 30 acres from the 177 + /- acres, and the
Planning Board is going to have to say yes or no. Part of the
reason for telling them no would be because the parcel would be
landlocked unless they have deeded access to a public road.
Chairperson Kenerson stated that with the length of the proposed
roadway, maybe the Board should be requesting two access ways.
Daryl Anderson addressed the Board and stated that the
Resident's Group would be the developers and the occupants, not fly
by night operators.
Board Member Eva Hoffmann stated
road was critical. Ms. Hoffmann stated
a wonderful concept and a great idea,
problems because of Town laws.
that access to the public
that she felt that this was
but that she sees legal
Assistant
Town
Planner
George Frantz asked if the Resident's
Group could go
with
a
condominium
-type project.
Jerold
Weisburd
stated that there
was a total commitment to
Ecological
essential,
Housing,
and works
not co- housing, and
much better with a
having shared systems are
cooperative.
Board Member Gregory Bell stated that there would be spacial
considerations that would not make a condominium -type project
feasible for EcoVillage.
Claudia Weisburd stated that through a lot of deliberations
and a lot of processes, they decided that they wanted to be a
cooperative. If it needs to be a Special Land Use District (SLUD)
in order to be a cooperative, what are the steps to the SLUD
process.
Town Attorney John Barney stated that the Resident's Group
would come to the Planning Board applying for a SLUD, and the
Planning Board would make a recommendation to the Town Board. The
SLUD would be written by the attorney for the Resident's Group and
himself and then the Town Board holds a public hearing and would
consider adopting the SLUD as a Local Law,
Board Member Gregory Bell stated that this is a special
project which is intended to be a model, so if using a Special Land
Use District works better, use it. Mr. Bell stated that he was
concerned with the ring road has no connection in it, although Mr.
Weisburd had discussed the view issue for having that undisturbed.
Mr. Bell then stated, for the record, that he lives in the
Commondland Crescent which was built by Mr. Weisburd. Mr. Bell
stated that he was concerned about the security with having the
i t
Planning Board Minutes 13 August 16, 1994
cars located so far away from the units, isolated parking lots are
failures.
Mr. Weisburd stated that the parking was done with definitive
intention to build around humans instead of around the cars. Mr.
Weisburd stated that some of the parking would be covered, and that
some of the parking was brought closer to the living units, which
will appear on the revised drawings to be submitted at a later
date.
Claudia Weisburd stated that covered parking was available if
the residents wanted it.
Board
Member Stephen
Smith asked if
the site plan had been
reviewed by
the Fire Chief
as far as fire
access.
Mr. Weisburd stated that there would be access ways for fire
and emergency equipment to get within 100 feet of all of the units.
Board Member Herbert Finch asked where the educational.
facilities, orchards, and gardens would be located that was
discussed in the earlier discussions regarding EcoVillage because
none of those things were showed on the plan presented to the
Planning Board tonight. The plan before the Board tonight showed
only living units.
Joan Bokaer addressed the Board and stated that agriculture
was very important to EcoVillage and the Resident's Group and that
most of the open space will be farms and organic gardens.
Ms. Weisburd stated that most of the people that are
going to be moving here are intimately connected with EcoVillage
and they will be helping EcoVillage at Ithaca do the things that
EcoVillage at Ithaca does, which includes community gardens and
educational projects. Ms. Weisburd stated that this entity (The
Resident's Group) stands separately.
Jennifer
Bokaer -Smith of 120 East
York Street,
addressed the
Board and
stated
that she and her husband
operate a
market garden
that they
are
planning on turning into
a full scale
farm, which
they will
be
leasing from EcoVillage
at Ithaca.
However, the
leasing of
the
farm will not
be part
of
the
30 acre
parcel.
Mr. Finch stated that he would have been interested in knowing
the larger project has not been abandoned, and that he had not
heard otherwise.
Susan McGrievy of 678 North Tioga Street, addressed the Board
and stated that the major issues on the common house are whether or
not the residents were going to donate a major portion of living
space in the basement to a root cellar for all of the vegetable and
Planning Board Minutes 14 August 16, 1994
roots that the residents intend to grow. In addition, how large a
freezer would be put in to handle all of the vegetables. Ms.
McGrievy stated that right now the residents need to get their
homes built.
Town Planner Jonathan Kanter stated that EcoVillage parcel is
within a County Agricultural District that was established under
the New York Agricultural Districts Law. Mr. Kanter stated that
part of the site is identified as prime agricultural soils in the
Comprehensive Plan, had the residents given any thought to that.
Ms. Bokaer -Smith responded and stated that the site was walked
with ecologists, farmers, landscape architects, and different
professionals in that field, and the Resident's Group specifically
chose the poorer agricultural soil for the housing. Ms. Bokaer-
Smith stated that a lot of the soil has a really shallow pan, and
that the good agricultural soil would be entirely preserved.
Joan Bokaer added that the massive infrastructure was located
specifically to protect the best agricultural soils.
John Bokaer -Smith
addressed the
Board
and stated that a
fundamental part of this
project is to
try to
preserve farmland.
Assistant Town Planner
George
Frantz stated that the
Resident's Group would
need to have
the
County Agricultural
Advisory Board review the plans
for this project.
Town Planner Jonathan Kanter addressed the Board and stated
that there was an Agricultural Statement that would need to be
filled out that would go to the County.
Jennifer Bokaer -Smith stated that the project being proposed
by the Resident's Group would enhance the agriculture on the parcel
in question.
Chairperson Kenerson stated that he was concerned about the
next phase because a portion of the development from the next phase
is shown on the 30 acre parcel which is before the Board tonight.
Assistant Town Planner George Frantz stated that he hac
the property and that there were a number of areas that may
as jurisdictional wetlands under federal law. Mr. Frantz
that the wetlands would need to be delineated or at least a
delineation would need to be completed to be sure that they
wetlands, per federal criteria, or, if they are wetlands
criteria, they would need to be mapped and avoided. Mr.
stated that an Environmental Assessment Form would neec
completed on the entire project of 177 + /- acres.
Iwalked
qualify
stated
federal
are not
by said
Frantz
I to be
.
Planning Board Minutes 15 August 16, 1994
Jerold Weisburd stated that he did not believe that Mr.
Frantz's statement was correct. Mr. Weisburd stated that he
thought they were entitled to buy land and have it reviewed as a
separate parcel without the land that you are buying it from come
into the review process. Mr. Weisburd stated that because it is in
the interest of the Resident's Group and the Planning Board to show
what subsequent development could look like, but it does not mean
that the people that own the other land intend to do the
development at this time. Mr. Weisburd stated that if the
statement made by Mr. Frantz were true then anyone selling any land
at anytime would have to have all of the land that remain come
under the SEQR Review when that sale went on.
Mr.
Frantz
stated
that for every subdivision review, the
entire
parcel
is
looked
at.
Claudia Weisburd stated that the entire parcel of land that is
going to be submitted for review is the 30 acres. Ms. Weisburd
stated that since it is separate ownership and EcoVillage at Ithaca
(EVI) may or may not go ahead with development, the SEQR review on
the project that is being submitted will be the 30 acres.
Mr. Frantz stated that EcoVillage at Ithaca (EVI) has gone on
record as desiring to build a 150 unit EcoVillage, of which this
happens to be the first phase.
Ms. Weisburd stated that EVI specifically has not coming in
and saying that this is the first phase of a multi -phase project of
150 houses. Ms. Weisburd stated that EVI is saying that they would
hold onto 150 acres and sell 30 acres to this resident's group, who
is going ahead and do a residential project, what EVI does with the
rest of the land remains to be seen. If EVI decides that it wants
to come in as a developer and do 150 houses, it would come before
the Planning Board with its property to do that. If EVI chooses to
sell more land to the cooperative, then the coop will come in with
a proposal. Ms. Weisburd stated that at this point, EVI is not
coming in as the developer with a proposal for 150 houses.
Town Planner Jonathan Kanter stated that SEQR does provide for
that kind of generic review in the sense of looking at the general
potential impacts of a known future development and putting a
specific development proposal in the context of that larger
development.
Mr. Frantz stated that in December 1993, EVI presented a
sketch plan to the Town of Ithaca for the proposed 150 unit
EcoVillage.
Mr. Weisburd stated that Mr. Frantz was incorrect and that EVI
did not present a proposed sketch plan and that there was not a
sketch plan review.
Planning Board Minutes
16
August 16, 1994
Mr.
Frantz
stated
that
he had an
application
the land but
signed
by Monty
Berman,
Chairman
of EVI
for
the review
of
a
proposed 150
units.
Claudia
Weisburd
stated
that was
because EVI was the
owner of
the land but
that the
proposal
was to
subdivide
off the 30
acres.
Mr. Frantz stated that EVI started that process of subdividing
off land for a potential 150 unit development.
development.
Mr. Kanter stated that he was not referring to cumulative
impacts of known development proposals in the surrounding area, he
was referring to the fact that this is now a single property where
there was discussion of development, which is what triggered the
need to look at the big picture. Mr. Kanter stated, as an example,
that if it were known that there may be a magnitude of 150 to 180
units long range, then staff would need to look at what the
potential impact of that level of traffic would be on the
surrounding road systems. Mr. Kanter stated that if it was known
that there could be 150 to 180 units, then staff would need to look
at the overall site and try to determine what the implications
would be as far as drainage for the whole property and the impacts
it could have on the surrounding properties. Mr. Kanter stated
that staff was referring to a general analysis of potential impacts
on the land and surrounding properties. Mr. Kanter stated that the
Planning Board would also need to determine if the Special Land Use
District would apply only to the 30 acres or to the entire
EcoVillage parcel.
Claudia Weisburd stated that the project can not expand any
further due to the need for the water expansion on West Hill and no
one knows how many units can be supported until the expansion
happens.
Mr. Finch stated
Ms. Weisburd responded, no, it has started the
process of
selling
land to a third party. EVI is
not developing
this site,
the
Resident's Group is developing 30 acres.
Ms. Weisburd stated
that
she understood that SEQR needed to
look at what was going on
all
around the proposed site, but it
was different
than known
development.
Ms. Weisburd stated
that there is
no known
development.
Mr. Kanter stated that he was not referring to cumulative
impacts of known development proposals in the surrounding area, he
was referring to the fact that this is now a single property where
there was discussion of development, which is what triggered the
need to look at the big picture. Mr. Kanter stated, as an example,
that if it were known that there may be a magnitude of 150 to 180
units long range, then staff would need to look at what the
potential impact of that level of traffic would be on the
surrounding road systems. Mr. Kanter stated that if it was known
that there could be 150 to 180 units, then staff would need to look
at the overall site and try to determine what the implications
would be as far as drainage for the whole property and the impacts
it could have on the surrounding properties. Mr. Kanter stated
that staff was referring to a general analysis of potential impacts
on the land and surrounding properties. Mr. Kanter stated that the
Planning Board would also need to determine if the Special Land Use
District would apply only to the 30 acres or to the entire
EcoVillage parcel.
Claudia Weisburd stated that the project can not expand any
further due to the need for the water expansion on West Hill and no
one knows how many units can be supported until the expansion
happens.
Mr. Finch stated
that the project was located to far from the
road, it doesn't have
with the proposal if
adequate access,
consideration
there is not reason
of the larger proposal is
to go
not
taken into account.
Jerold Weisburd
addressed the
Board and stated that
they
needed to decide if
they wanted a
standard subdivision on
that
parcel or an EcoVillage, and that he
felt that the EcoVillage
made
more sense.
Planning Board Minutes 17 August 16, 1994
Board Member Herbert Finch stated that the project only makes
sense if the entire EcoVillage proposal is developed, if the 30
acre parcel is all that is ever developed, then it does not make
sense because of the reasons stated earlier.
Susan Webber stated that there was an enormous cost as far as
infrastructure being incurred by the Resident's Group to build on
that site. This site was picked for housing because of the poor
land quality for farming. Ms. Webber stated that there was no way
of knowing if there will be future resident groups, and it would
not be fair to hold this resident's group accountable for all
potential future development on that hill.
Joan Bokaer added that making 30 households accountable for
150 households that may or may not be built would bankrupt the
people of the Resident's Group.
Town Attorney John Barney stated that there are requirements
that the Town must deal with. Attorney Barney stated that as
desirable as this proposal is, the Town can not bend the rules.
Rules are the same for the people involved tonight as they would be
for any other developer. Attorney Barney stated that the Board is
not making the people of the Resident's Group accountable, all the
Board is saying is that the 30 acre proposal can not be reviewed in
a vacuum. The New York State Law regulations state that among
other things, that we are to determine whether there is an
environmental significance to what you are doing. Attorney Barney
read from the law the following: "The Lead Agency," which is the
Planning Board, "must consider reasonably related long term, short
term, and cumulative effects, including other simultaneous and
subsequent actions which are.
1) Included in a long range plan of which the action under
consideration is a part,
2) Likely to be undertaken as a result thereof, or
3) Dependant thereon."
Attorney Barney stated that what he had just read was the mandate
that the Planning Board must operate under and that he did not
think the Planning Board could close their eyes to the fact that
the hope is from EcoVillage that there would be additional
villages, that does not mean that the Resident's Group is
accountable for them, all it means is that in examining the outcome
and the view here, it must be taken into account that is a very
foreseeable, if not, indeed, a likely possibility.
Town Planner Jonathan Kanter stated that according to
procedure, Part II of the Environmental Assessment Form (EAF) is
basically prepared by the Planning Department staff and the level
of detail that would need to be reviewed is the staff's best
judgement.
Planning Board Minutes 18 August 16, 1994
Jerold Weisburd stated that he would hope that as the Board
looks at the proposal, they would keep in mind that what is shown
on the plans is conceptual and is an improvement on what is
normally done. Mr. Weisburd asked that the Board look at not just
the traffic, but also at the reduced pollution and the reduced
abuse of land that the normal subdivision allows.
Scott Whitham addressed the Board and stated that the proposed
is a separate entity from EcoVillage Inc., and that EcoVillage has
no concrete plans for any of this.
Assistant
Town
Planner George
Frantz
stated that he understood
that the
plans
were
not concrete,
but it
has been proposed.
Mr. Whitham stated that it was proposed as a concept.
Mr. Frantz stated that it needed to be reviewed for long term
impacts. Mr. Frantz stated that the Board is trying to figure out
how to get good ideas from plan to reality, and that he thought
that the Town of Ithaca has done very good about that for the last
25 years. Mr. Frantz stated that there are trade offs involved.
Mr. Frantz stated that the Resident's Group wants to preserve all
of the finest agricultural land, but there is a 2600 foot long
driveway for 30 units. There will be approximately 4,000 gallons
of gasoline used per year estimating five trips per household per
day. Mr. Frantz stated that there are trade offs. Mr. Frantz
stated that he was trying to f ind a way of cutting back on the
number of environmental impacts that could be caused by this
project. Mr. Frantz stated that he has never taken a no- growth
position.
The Board discussed with the members of the Resident's Group
the possibility of alternative access to Elm Street, which would
shorten the distance of the 2600 foot driveway. There was also
discussion of the tradeoffs involved with this project.
Board Member Gregory Bell addressed the Board and stated that
there was a lot of resistance to the preparation of an EAF for the
entire project, it is not as bad as you might think. Mr. Bell
stated that the plans do show additional houses beyond the 30 acres
proposed before the Board tonight and that can not be denied.
Claudia Weisburd stated that they would be working with staff
of the SEQR Review.
Chairperson Kenerson thanked the people of the Resident's
Group for their time and patience and closed this segment of the
meeting.
Planning Board
Minutes
19
August 16, 1994
AGENDA ITEM.
NEW YORK
PLANNING FEDERATION
FALL CONFERENCE.
The Board discussed the upcoming conference with the Planning
Board Members and Board Members Eva Hoffmann and Gregory Bell
expressed an interest in going to the Conference. Town Planner
Jonathan Kanter stated that he would be attending this conference
as well.
The
Board
discussed
the
tentative agenda
items for the
Planning
Board
Meeting
scheduled
for September 6,
19940
AGENDA ITEM. DISCUSSION OF DOLAN V. CITY OF TIGARD SUPREME COURT
DECISION.
The Board discussed a handout regarding the Dolan v. City of
Tigard Supreme Court decision provided by the American Planning
Association and dated August 1994. (Above mentioned handout is
attached hereto as Exhibit #2)
OTHER BUSINESS
Town Attorney John Barney suggested that the Planning Board
re -adopt the resolution for the Frank J. Raponi Subdivision so that
the SEQR and resolution from the August 2, 1994 meeting would be in
the appropriate order for the record.
Chairperson Kenerson
asked
if anyone
were prepared to offer a
motion on the resolution
of the
Frank
J.
Raponi Subdivision.
MOTION by Stephen Smith,
10 This action is
Approval for the
Parcel No. 42 -1 -9
approximately 0.7
located at 346
Estate of Stephen
and
seconded by Herbert Finch.
Consideration of Preliminary Subdivision
proposed subdivision of Town of Ithaca Tax
.141 1.43 +/- acres in size, into 2 parcels,
0 +/- and 0.64 + /- acres in size respectively,
Coddington Road, Residence District R -15.
J Raponi, Owner; Frank J. Raponi, Applicant,
2. The Planning Board, at a Public Hearing held on August 2,
1994, has reviewed and accepted as adequate the Short
Environmental Assessment Form Part I prepared by the
applicant, a Part II prepared by the Town Planning staff, a
subdivision plat entitled "Survey Map, No. 346 Coddington
Road, Town of Ithaca, Tompkins County, New York," prepared by
T.G. Miller, P.C. Engineers and Surveyors, and dated June 2,
1994, and other application materials, and
Planning Board Minutes
W]
August 16, 1994
3. This is an Unlisted Action for which the Town of Ithaca
Planning Board, acting as lead agency in environmental review
with respect to Subdivision Approval, has, on August 2, 1994,
made a negative determination of environmental significance.
NOW, THEREFORE, BE IT RESOLVED:
1. That the Town of Ithaca Planning Board hereby waives certain
requirements for Preliminary Subdivision Approval, as shown on
the Preliminary Plat Checklist, having determined from the
materials presented that such waiver will result in neither a
significant alteration of the purpose of subdivision control
nor the policies enunciated or implied by the Town Board.
2. That Preliminary Subdivision Approval of Town of Ithaca Tax
Parcel No. 42 -1 -9.14 is granted subject to the following
conditions.
a. The easement area shown on Parcel A be redrawn as part of
the actual lot area of Parcel B to create a flag lot, so
that Parcel B has 20 feet of frontage on Coddington Road;
b. The lot lines of Parcels A and B be adjusted to even up
both parcels to avoid creating additional non,,,
conformities of either Parcel A or Parcel B;
c. A letter be provided by the applicant stating that he is
formally acting as the agent of the owner of Tax Parcel
No. 42 -1 -9.14; and
d. The applicant obtain any required variances from the
Zoning Board of Appeals with respect to the lack of
required frontage on a public road, or relating to any
other zoning non - conformities of either Parcel A or
Parcel B, prior to obtaining Final Subdivision Approval.
There being no further discussion, the Chair called for a
vote.
Aye - Kenerson, Bell, Hoffmann, Ainslie, Finch, Smith, Bayer.
Nay - None.
The MOTION was declared to be carried unanimously.
•9 P
Planning Board Minutes 21 August 16, 1994
ADJOURNMENT
Upon MOTION, Chairperson Kenerson declared the August 16, 1994
meeting of the Town of Ithaca Planning Board duly adjourned at
10:46 p.m.
8/22/94.
Respectfully
submitted,
StarrRae Hays,
Recording Secretary,
Town of Ithaca Planning Board.
l
June 16, 1994
RESOLUTION BY THE
ECOVILLAGE
Whereas, the First Residents Group of EcoVillage at Ithaca (soon to be
incorporated as the EcoVillage CoHousing Cooperative, Inc.) desires to establish a
cohousing community of 20-30 households on the EcoVillage lands; and
Whereas, establishment of such cohousing community would further the purposes,
goals, and aims of EcoVillage at Ithaca by demonstrating the viability of sustainable
approaches to socially and environmentally responsible housing development; and
Whereas, EcoVillage at Ithaca may transfer or sell a portion of its assets upon
approval by the Board of Directors, and ratified by the membership; and
Whereas, the Board of Directors has agreed to the principles of a transfer of a
portion of its property to the FRG or its successor by EcoVillage, as specified below; and
Whereas the ratification of the membership will be sought by the Board and
appended hereto when granted; and
Whereas the mortgagees of the property will remain fully protected by the proposed
improvements to the site;
Now therefore be it resolved that the Board of Directors of EcoVillage, does hereby
agree to execute a contract to transfer a portion of its lands to the FRG, under the following
terms:
1. The amount of land to be transferred will be approximately 30 acres;
2. The location of the lands to be transferred shall be in the interior of the site, without
frontage, in the general vicinity of the area marked X on the attached map;
3. The FRG or its successor organization will be granted all necessary easements, for road,
water, sewer, and utilities across lands held by EcoVillage at Ithaca;
4. The contract of sale will be contingent upon the FRG (or its successor) entering into a
contract for the construction of the infrastructure required to serve the site, and the
buildings, and will be contingent upon the ability of the FRG to obtain title insurance to the
property;
5. The FRG will pay all surveying and other costs associated with the transfer of title from
EVI to the FRG;
6. EVI will provide a full release from all underlying mortgages on the property to be
transferred, and will provide evidence of full payment of taxes, and freedom from other
liens;
7. Compensation to EVI shall be in the form of the installation of the road, sewer, and
utility service to the interi or of the site, at the expense of the FRG, and granting EVI
..
easements to such road, water, and utility services, which infrastructure and access is
:recognised as having a value equal or greater than the value of the land to be transferred;
8. EVI will grant the FRG a right of first refusal prior to selling any of its remaining lands,
whether through foreclosure proceedings or otherwise;
9. Deed restrictions for land transferred from EVI to FRG (or Cooperative Corporation):
]EVI reserves the right to negotiate deed restrictions specific to each parcel to be included in
the option contract. No portion of the lands to be transferred shall be used in ways
incompatible with the following goals:
1) Restricting housing to no more than 3.5 acres per neighborhood.
2) Fostering a sense of community, both within neighborhoods and between
neighborhoods, should more than one neighborhood be developed.
3) Encouraging pedestrian and bicycle circulation
4) Restricting motorized vehicular intrusion into the residential areas
5) Minimizing land coverage and maximizing open space
6) Energy conservation
7) Housing affordability
8) Encouraging agriculture and applying organic methods
The use of the site and the number of residences allowable shall be in compliance with the
regulations of the Town of Ithaca, and the approvals granted by the Town of Ithaca
Planning Board.
10.) EVI hereby authorizes the First Residents Group or its successor entity to act as its
agent with the Town of Ithaca for the purpose of the subdivision of the lands and the
review of the residential project.
I 1.).EVI will grant the FRG or its successor entity options to purchase additional lands in
stages, over a period of approximately 12 years. The FRG will compensate EVI for the
options by paying the annual taxes and insurance on the entire EVI parcel at Mecklenburg
and Vest Haven Roads, for each year that the options are in effect. The option agreement
will be written into the contract for the transfer of lands to the FRG, and the options will
become effective on the date that the land is transferred to the FRG. The options may be
cancelled at any time by the FRG (or its successor Cooperative Corporation.)
The Board of EVI agrees to the following general outline for, development of the
option agreement:
Option l: approximately 30 acres, 4 year term beginning from the date of the first
transfer of lands from EVI to the Cooperative, $80,000
Option 2: approximately 30 acres, 2 year term, beginning on the date of the transfer
of lands from EVI to the Cooperative for the Option 1 parcel, $120,000
Option 3: approximately 30 acres, 3 year term, beginning on the date of the transfer
of la:rids from EVI to the Cooperative for the Option 2 parcel, $190,000
Option 4: approximately 56 acres, 3 year term, beginning on the date of the transfer
Of lands from EVI to the Cooperative for the Option 3 parcel, $228,955
J
of
1
N
I0 P
--
ENVIRONNIE
° 81994 '
o os 4�4 :PwiMnroa+Ts ' • • e • • • • • s •
The Dolan Case: Grabbing
Tigard by the Tail?
BvJarnes F. Merry
On June ' +, 1994. the U.S. Supreme Court released its long -
ancicipared land -use decision in Doian v. Cry of Tigard The
case Involved a challenge by a private landowner co the city's
conditions placed on building permits. Because permit condi-
tions are a popular Firm of land -use regulation, there has been
mounting concern among municipal planners char many land -
use practices and zoning regulations might be called into ques-
cion if the landowner succeeded.
Planners tears were realized when the Court Found char the
cin•'s regulations constituted a "caking" of private properry
without compensation. Property rights advocates immediately
praised DoLrn as a clear victory (and as a defeat for environmen-
ral regulations), bur its long-term effects on municipal environ
ental regulations are nor clear.
om the Beginning
orence Dolan owns a retail plumbing and electric supply store
ocaced on 1.67 acres in the central business district of Tigard,
Oregon (a suburb of Portland). Fanno Creek, whose Hoodplain
is part of the city's greenway system, flows through the lot's
southwestern corner and along its western boundary.
Dolan and her late husband applied to the city for permits co
raze the existing score, construct a new score of 17,600 square
feet, and pave a 39 -space gravel parking loc. The city planning
commission granted the permit subject to a series of conditions
iW AMERICAN
PLANNING
ASSOCIATION
AUGUST 1994
• • • • • • e e • • ® • • • • • • • •,e,® e •
J'
imposed by the cirv's community development codt,.which is
the codincacion of the city's state - mandated comprehensive plan.
The controversv involved the conditions placed on Dolan's
permit. First, she was required co dedicate co the city, rhas por-
cion of her property within the 100 -year Hoodplain of Fanno
Creek as•part of the city's storm drairI system. The planning
commission reasoned char the addicionai'impers_ious surfaces
would. increase srormwater runotf into Fanno Creek, making
expanded Mood controls a necessicv.,Second, the_cir: required
dedication of an iddicional 15-F oor -wide strip tit land For a pub-
lic pedestrian/ bicycle pathway. The commission concluded char
the expanded retail sales building and parking loc would attract
additional customers and employees into the already cgnjgcsted
central business district and that the pathway could- alleviate
traffic congestion. The dedication amounted to nearly 7.000
square Feet 0 0 percent of the total prooertv), bur could be used
co offset the citys 15 percent open space and landscaping, re-
quirement under its zoning ordinances. ;
Dolan requested variances on the grounds that her proposed
development would not conflict wirh the policies set forth in
the city's comprehensive plan. The commission denied her re-
quest, finding char ,it was reasonable to assume that the•pedes-
crian /bicycle path would be used by empigyces:and customers,
and that the Hoodplain dedication was_ ".reasonably related" to
the proposed intensified use and increased impervious sudaees.
The commission invites applicants to propose alcernacivle mici-
gating measures to offset the impacts of development project,
bur Dolan declined to offer any alternatives or challenge._che
city's findings.
Dolan appealed the commission's denial co the Oregon Land
Use Board of ,appeals (LUBA) on the grounds char the city s
Florence Dolan and Gtr ion, Dan, president ofl4 -Boy stores, their family chain, in front of Fanno Creek, which craverres their property
E
III
E
dedicati h",eeq`uIrernenis were nor reiared to the proposed devel-
opm'eht`and therefore consurured an uncompensated caking of
her property in viol'acI n'ot flit Fifth .�ntendmcnr to the U.S.
Consri.rurion. LUBA .Found a "reasonable relationship" between
rhe.ded;icacions and both the- greenway and the pedestrian /biepde
pathway, and affirmed the city's decision. Dolan appealed to the
Oregon Court or appeals and the Oregon Supreme Court. but
bothc& rig affirt edLU-BA. The-final appeal was to the U.S. Su-
preineCourt, which aereed'to hear the case based on an alleged
conflict between the Oregon Supreme Court ruling and prior de-
cisions by the U.S. Supreme Court.
Regeal]atory'Takings
At chi h.earr,of Dolan is the Fifth 'Amendmenc, which states char
private property may nor be "taken for public use, wichouc just'
compensation." The Fifth amendment's "caking" clause is made
applicable to the stares through the Fourteenth amendment.
The Dolan decision is the latest in a growing body of federal
law devoted cc determining when land -use -restrictions or exae
rions consticuce a Fifth amendment caking. This body oflaw` is. :<
of special importance to municipal planners because zoning rc-;, ,
scricrions, permit conditions, and exactions have become chc ;
dominant mechanisms for environmental regulation by muniei-
palicies across the nation,
Unfortunately, no clear cut has emerged co- determine when
environmental regulations become so burdensome chat they ef-
fect a caking of property. The U.S. Supreme Court has an-
nounced char there is no set formula for determining how far is
coo-Far'-.4 '1"his has,produced a series o- ad hoc, Facr- sensitive dcci,,
siohs char have' created headaches for a generation of planners
andalanai -W` t attorneys,
Despite -che relanveuncertainry, the Supreme Court revealed
several' important rests codetermine' if a land- usc4eegi1-lation,was
a caking even before its decision in Dolan. However, many of
these rested on constitutional considerations ocher than the
Fifth Ariiendiiienc, such as the due process and equal protection
claus.'es'of the Fourth and Fourteenth amendments. Several deci=
slons,in'd -ic 1970s and early 1980s made is clear rhat a reaula-
cion, as'appfied cc a-particular propery; must advance a legiti-
mate scare'in'cerest (for example, flood control or relief of traffic
congestion), be reasonably necessary to effectuate a substantial
public purpose, and not deprive the owner of all economically
viable use of the land.
The rnosc prominent land -use decision of recent years was
Noncan r; r,� 5for?ua Coaxial °Commufion in' 1987. JdStice Scalia,
writing foe a =-i Supeeine Coact majority, tried to elaborate on
the standards' a' municipality must use cc determine "'what type'of
connection between die the and -che state interest satisfies
the requirement chat the former `substandally a6ancc' the la%
ter." Ae the Bari;; the question for Fifth Amendment takings rases
was whether to,apply ro -the regulation the scrictcr' "s'ubstanaally
advance `standard or the more,defercnrial "reasonably relarce
standard. he difference is important because it cells• the muniei-
pality the degree cc which'ir must tie together its land -use regula-
tions anti its, jusrincacion foe applying them. The Nollan decision
was `not 'iis'helpful as many observers had hoped. Justice Scalia-
ex-plicitly scared chic' the proper standard for takings cases is sub -
James ' Berry a profe
F„ ssor ofbiology at Elmbusst College inElmhiam
111i> o.is,'where be also maintains a private practice in environmental
and land -tue law.
2 '
A •
W
stanciallir advances,° but the decision actually applied the "rea-
sonable relatiunship" standard previously used in due process and
equal protection cases.
The second ,VoiLin inquiry was "how close a 'St' between the
condition [the regulation] and the burden [on the property
owner)' is required." The Court tailed to find a "reasonable rela-
cionship" benveen the conditions imposed (lateral access to the
beach in char case) and the regulation's purpose (visual access to
the beach by the public): The Court held char there muse be a
"nexus." or connection., between the restrictions imposed by the
regulation and the regulation's original purpose. In ocher words.
VolLtn requires a nexus between the burdens imposed on the
property owner by the regulation and the fe "icimate scare inrer-
csr that is substantially advanced'by chc regulation. Unforru-
narely, .Vot'Lrn is utren regarded as a hiahll. result - oriented deci-
sion and leaves unanswered how a municipalin mirhr
determine if it has met the ",Vollan nexus" test (short of a law-
suit before the U.S. Supreme Court). (A result - oriented deci-
sion is'one in %vhich the Court has chosen to hear a case in order
to effect a specific outcome through their opinion.)
The next U.S. Supreme Court decision to discuss these issues
was Lucas Y. South Carolina Coastal Council in 1992. There was
hope'thar Luau would settle once and for all what standards
would be applied cc municipal land -use regulations. Justice
Scalia; again writing for the majority, distinguished between two
categories or r gulations that would automatically be considered
compensable takings of property: chose char involve an actual
physical invasion of the property, and chose in which there was
a complete denial of all economically beneficial or productive
use of chc land. Under the facts in•Lacis =the South Carolina
Beachfr'onc :Nlanagemen:c act prohibited permanent, habitable
scruccures-on Lucas's beachfronc propery —There was a per se
compensable caking under the second category (see "Building
on the Beach," September 1990.
Nflosr commentators considered Lucas ,a scrongly result -ori-
enred decision chat did little to 611 in the daps left bd :VolLan.
When the Supreme Court agreed'ro7decide Dolan v. City of
Tlgdrd interested Courcrspecracors hoped once again chat guid-
ance would be forthcoming. Unfortunately, they will probably
be disappointed. Like AVollan and Lucas, Dolan is highly result.
oriented. It answers few, it any, of the questions of greatest im-
porrance cc municipal planners. In tacr, it raises new questions
and places additional burdens on municipalities in the land -use
planning process.
The Rest of the Story
Chief Juscice Rehnquist wrote the majority opinion in Dolan,
another 54 decision.'He looked for and found the "Nollan
nexus" between the legitimate scare interest and the permit con-
ditions. He held char "a nexus exists between preventing Hood -
ing along Fanno Creek and limiting development within the
creek's 100 -vear floodplain ... (and] the same may be said of
the city's attempt to reduce traffic congestion by providing for
alternative means of transportation [via the pedestrian /bicycle
pathway].'
The Court then. asked whether the degree of the exactions
demanded as a permit condition bore the required relationship
to the projected impact of the proposed project. Here, ac last,
was an opporrunicy to answer a significant question left unan-
swered by Nona - -n, and Lucas, Because the Court had noc dealt
with this specific issue in its previous cases, it turned to various
state coup decisions -for guidance. The Chief Justice considered
r
"too lax" those stare courts, such as in Nlonrana and New York,
chat accept "very generalized" statements retarding the necessary
Ionnecrion. He considered coo strict chose state coures_rhat_re-
uire a very exacting correspondence known as the "specific and
niquely attributable' rest.
The Dolan majority selected a form of the " reisonable rela-
cionship" rest favored by scares such as Wisconsin, Minnesota,
and Texas. However, the Chief Juscace created a new expression,
for the proper rest in federal Firth Amendment cases. He called _
it the "rough proportionality" rest, which he described in this
sentence: "No precise mathematical calcuiarion is required, but...
the city must make some sort of individualized determination
chat the required dedication is related both in nature and extent ..
to the impact of the proposed dcyelopment."
From the beginning, Dolan argued char the city went coo far
when is required her to dedicate her land along the creek. The dif-
ference to her is chat she would lose the aoiliR co exclude, others
from the properry once it was dedicated to the city. The,Courr
agreed with her. It is clear that the majorin• was bothered by the -
requirement chat she give up.ownershlp of the land. The Chief
Justice stated char "it is difi'iculc. to see why recreational visitors ,
trampling along petitioners (Dolan •sj Hoodplain casement arc sut-
6cienrly related to the cicy'sA.egicimace interest in reducing flood -
ing problems." The required reasonable relationship between, the ..
Hoodplain easement and,rhe,proposed new building was lacking.
•\s for the edesrrian /bit -de achwav the Court held chat
■ It must be reasonably necessary to effectuate ,.a substantial
public purpose, and there must,be•a're sonab.lc relationship urr
"essential nexus" bcnvccn the scare inc�resr and clic.ce�ulaton
■ Theft must be a rough proportional iev- ,benveen- che•requilree
dedication orrrestricrion and the'intpact of the proposed de
velopmenr, and
n There must be some sort of individualized dererminarign- chat,,
the.required dedication or restriction is_relaced.bothIin nature.
and.•exrent to the impact of the proposed developmcnc,
T'ne Supreme Court has issued vet another warning to mu-
nicipal planners in the Dolan decision...�lunicipaiiri.�musr bee �
more cautious than ever when.environmencal regulattons_.,
pinge.,on private property rights. Careless planners will, pay cbc *0 7
heavy price of takings challenges. ;
Battle Rages^Over:-�:
Santa Monica
Mountains
3v Debra A. Schwartz
.
p ,
the city had nor met its burden of demonstrating chat the addi -. Environmentalists and a landowner are fixing:bavoners in a,
clonal vehicle and bicycle trips are reasonablv.relaced co there- .,... lawsuir;avcr.who will own all chose eucalvpcus trees in.che:�
quired dedication. In its findings: the troy stated chat the path opening scene of Gone Wirh the Wind For.foury.cars: chcsmall,,
$ay "couldoffset sornepf k; tragic demand ... and lessen the well- funded Soka.Universirvand the MounrainsB.cc,�acion anf ?t:i-
crease in craflic congestion" (emphasis added).. Bur the Court . Conservation Authority (MRCA) have made..rhe,580- acrerswach ;.
and this inadequate., requiring instead char the cicv '•make of I;os ,Angeles County land across from Ma.4.u.greek;Sicace,,,r-,
me effort to quantify its findings" in order co show -chat the ;. , Park.che- subjecc.of.the most hodv contested coodemaacion suit....
pathway would decrease 'traffic. This portion of the decision is in the stare.
particularly troubling because rhe.city had made quantified End- The legal issue is:whecher MR, C-k has .jurisdiction- .co,__,_.;:; :.
ings— namely, char the proposed development would generate. conderrin properry in Los Angeles. County. The lac crj, sue is
roughly 435 additional rrips per day and char vehicle trips -could whether any -more development.should he allowed,in the hears.
be reduced by increasing pedestrian and bicycle access. It is di& of che.Santa Mon ica,Mounrains. The university; has-petiaoned
ficult to imagine what kind of "quantified findings" the Court the California Supreme Court to decide,whaher 2MRC-A.has
would deem sufllcient. authority outside Ventura County. The coup was sc4rduled to o�
Perhaps the most troubling aspect of the Dolan decision is accept at- reject the case by July 5-
the cavalier manner in which the Chief Justice shifted the bur- In the meantime, the condemnation proceedings .filed by
den of justifying the regulation co the city. In every ocher area of MRCA have been staved by a court order. The state parks and ✓
zoning and land -use law, the courts give deference to the mu- recreation department marked 248 acres for acquisition„ 15, years
J.,
nicipaliry and place the burden of proof on the individual chal- ago b4L_ never _agempced,ro.condemn ;because•ehrxFaeemed.no t
lenging the regulation. There is little juscificarion in the 41ocision danQerrot the tract. going -to other uses. But rhe,_175r scud4Fsr
For this shift of burden, as wasEnoced in sharp dissents by Jus- . college, wich•roocs:in Japan's largest Buddhist. seccr.,bough tie ".;,
cites Stevens, Blackmun, Ginsburg, -arid Maurer w ho wrote a land 1n= ,1986 and recenclv.proposed devcloptng it tp
separate dissent). accommodate 3,400scudenrs. -
�(1tC.3 -wants co prevent development.of an,yc,I io,ci=re::.Ic .. ",
Tentative Lessons
consists of the Rancho -Simi } Fcreac on and,Park Discrier,,.che y.v,
The significance of DoGm will be argued far %ears, Ho�seyer con- Conejo .RecFeariors d P�rk_Discrici, and.che Sarita Vtoniea„ -.. t
fusing and contradicrory takings law may appear, several useful Mountains Conservancy. X111 -have xhe authority to condemn..
guidelines have cmcrged chat may allow a. municipality to issue but .the tayo park districts' powers are limited to Ventura
land -use regulations without effecring an unconstitutional caking Counry :W.4je; the conservancy can condemn a_nywheir in the,,
stare< David Gacke.nbach,superincendent of,,chc �anca.Monica ,,,,,
Any regulation applied ro.a specificrproperiy'iniisr not de- i�touncairts National Recreation rea, an.arrm..of c U.S_ �. a
prive the owner of all ecorkomically beneficial or produci:ive°
use of the land; Interior Department, says Soka interrupted negociarions
f.: between MRCA and the previous owner when it offered 52
There must noc be a physical invasiorlrof the property; millicgngnore,than the agency nnd.the serer had agrcCd.Qn,:,
"They stole is from the agenry, °.he says; "This is not thc.pla%.
A The regulation must substantially- advance a lea';imare interest: for a 3,400 - student university.° v ;
4
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