Loading...
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 l.: