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HomeMy WebLinkAbout20170676 Devall Subdivision Council Advisory Opinion 8/3/2020 Zimbra Zimbra jennifer.merriman@saratoga-springs.org DeVall 59 Franklin Street Zoning Application From : Michael Toohey <mtoohey@sktccLaw.com> Wed, Jun 03, 2020 11:12 AM Subject : DeVall 59 Franklin Street Zoning Application 1 attachment To : Susan Barden - City of Saratoga Springs (susan.barden@saratoga-springs.org) Oil L ! nilj <susan.barden@saratoga-springs.org>, vincent deleonardis <vincent.deleonardis@saratoga- JUN Q 3 020 springs.org>, tony izzo <tony.izzo@saratoga- springs.org> By Cc : bbirge@saratoga-springs.org, Jennifer Merriman <jennifer,merriman@saratoga-springs.org>, Tara Phillips <TPhillips@sktcclaw.com> CAUTION: This email originated outside of the City network. Please contact IT Support if you need assistance determining if it ' s a threat before opening attachments or clicking any links. Group: Good morning! Last week I promised Susan that I would put the DeVall Zoning Application at the top of the list. As a result I have given the file a full review and I have made myself more confused than ever. This Application in its totality has to be with the acknowledgment that the DeVall ' s own two parcels of property which are and were know by 59 Franklin St and historically 11 Cherry Street . From all the evidence that I can find it appears that the County and/or the City unilaterally merged those two parcels and created Tax Parcel 165. 59-1-54. Vince, at a public meeting, has said that the City does not have a merger provision so how the merger happened is a mystery but it did . The DeValls would like to have the two lots created once again and to build a single family home on the Cherry Street property. I do not believe that they need to obtain a subdivision approval to be able to do this and that the building and structure on 59 Franklin Street consists of a pre-existing structure having been in it present position, on this separate lot, from the beginning of the last century. On July 9, 2019 I sent Vince, Susan and Tony the attached letter, with significant supporting evidence attached, asking that it be directed to whomever can tell me if the City believes a subdivision is needed. I do not believe I got a response to that letter and that has an effect on the Zoning Application. After that an based on the fact that the Planning Board had been named the lead SEQRA Agency a very detailed presentation was made to the Planning Board which in large part proved that the DeVall property was really two lots (59 Franklin an 11 Cherry St) and that a single family home could be built on the Cherry Street Lot . This resulted in a unanimous Negative SEQRA Determination and a unanimous determination for the Planning Board to reverse the Negative Advisory Opinion, on this matter, and "reissue an Advisory Opinion to the ZBA for this Application rescinding the previously submitted Unfavorable Advisory https:llm.saratoga-springs.org/h/printmessage?id=105122&tz=America/New_York 1/2 6/3/2020 Zimbra Opinion" . (Planning Board Meeting Minutes 2/13/20. I have requested the "reissued" Advisory Opinion and I have not received it. Here is my confusion I have a detailed Zoning Application that gives the history of the two parcels and seeks a series of Area Variances for the single family home and detached garage that is on the Cherry Street property. The locational design and the actual construction of a single family home on this lot has received a Positive Advisory Opinion from the DRC (11/8/19) . But I do not know if it is the City' s position that a subdivision of the parcel is still needed and as a result that the Area Variance needs to also contain all of the data for the historic structure that is on 59 Franklin Street. That runs back to the question that I asked on July 9, 2019. I think this is a valid question for the City and I need the answer to formulate the Zoning Application and the presentation to the Zoning Board . Please give me some guidance and insight . If you want to talk about this I would be glade to have the conversation ( 518-573-6149) . Thanks, Mike Letter to V DeLeonardis 7.8.19.docx 26 KB httpsalm.saratoga-springs.orglhlprintmessage?id=105122&tz=AmericalNew_York 2/2 SNYDER, KILEY, TOOHEY, CORBETT & COX, LLP HARRY D.SNYDER ATTORNEYS AT LAW LOREN N.BROWN` MICHAEL J.TOOHEY PLEASE REPLY TO: 1994-2016 KATHLEEN A.CORBETT P.O. BOX 4367 "RETIRED JUSTICE JAMES G.SNYDER SARATOGA SPRINGS, N.Y. 12866 NEW YORK STATE JAMES S.COX STREET ADDRESS:160 WEST AVENUE SUPREME COURT TELEPHONE(518)584-1500 FACSIMILE(518)584-1503 July 8, 2019 VIA HAND DELIVERY Mr. Vincent J. DeLeonardis City Attorney City of Saratoga Springs City Hall 474 Broadway Saratoga Springs,New York 12866 Ms. Susan Barden Principal Planner City of Saratoga Springs City Hall 474 Broadway Saratoga Springs,New York 12866 Mr. Anthony J. Izzo Assistant City Attorney City of Saratoga Springs City Hall 474 Broadway Saratoga Springs,New York 12866 Re: Richard DeVall and David DeVall Subdivision 59 Franklin Street,Saratoga Springs,New York 12866 Tax Parcel No. 165.59-1-54 Dear Vince, Susan&Tony: I have been retained by Richard DeVall and David DeVall pertaining to the question of the necessity of them being required to obtain a subdivision from the Planning Board of the City of Saratoga Springs with regard to their right to construct a single-family residence on the second lot, which they own which was historically known as 11 Cherry Street,and is located at the southwest corner of Cherry Street and Marvin Alley,to the rear of their 59 Franklin Street property. Because of the volume of background exhibits,deeds,maps and other associated documentary proof, I am submitting one full copy of the documents associated with this letter to the City Attorney along with copies of just the cover letter to all the other people addressed in this letter. A full copy of the letter with all exhibits along with thumb drive with the full documents will be delivered to Jennifer Merriman so that she can place the letter and associated documents on the City's electronic system. Mr.Vincent J.DeLeonardis,Esq. Ms. Susan Barden Mr.Anthony J.Izzo July 8,2019 Page 2 It is my position that the DeValls do not need to seek subdivision approval from the Planning Board of the City of Saratoga Springs as they are the owners of two(2) individual lots whose existence dates before the beginning of the last century. The fact is, that the City of Saratoga Springs or the County of Saratoga unilaterally merged these two (2) lots into one tax parcel, that being Tax Parcel No. 165.59-1-54. That merger took place without the request or permission of the property owners and without any deed or documentation that would have merged the two (2) lots or sought to have the City/County perform the merger of those two(2)parcels. As we will demonstrate below and in the attached documentation,the two(2) lots, pursuant to Section 5.5 of the Zoning Code of the City of Saratoga Springs,are pre-existing, non-conforming lots and as a result, the Lot to the west and rear of 59 Franklin Street, formerly known as 11 Cherry Street, may have a single family residence constructed on that parcel. (Zoning Code Section 5.5C) The proof of this is as follows: I. Deeds (All referenced Deeds are attached as Exhibit"A") All deeds have the same description of the two (2) lots or the lots as they appear on the individual deeds. A. Deeds conveying both lots with each lot individually described. 1. DeVall from Gailor 1994 Book 1400 page 303 2. Norstar Bank of Upstate New York to Gailor(s) 8/21/85 Book 1093 page 580 Norstar Bank was acting as the Executor of the Estate of Florence E. Ennis, the last surviving Ennis is this chain of title. B. 59 Franklin Street Lot (these transfers represent the parcel as an individual lot) 1. Ruth T. Wallace to Edward A. Ennis, Frances E. Ennis and Florence E. Ennis 10/8/65 Book 820 page 560 (Ruth Wallace was the Executrix of James Leary. All of the Ennis passed away with Florence E. Ennis being the last survivor and had Norstar Bank as her Executor.) 2. John J. Lynch to James A. Leary 12/27/41 Book 666 page 141 3. Edmond N.Arnyot to John J. Lynch 9/19/38 Book 396 page 435 4. Leslie B. Andrews to Edmond N. Amyot 4/4/38 Book 393 page 341 5. Mac Firm and Mary B. Finn to Leslie B. Andrews 10/11/30 Book 363 page 582 Mr.Vincent J.DeLeonardis,Esq. Ms. Susan Barden Mr. Anthony J. Izzo July 8,2019 Page 3 C. Lot on Northeast Corner of Cherry Street and Marvin Alley historically known as 11 Cherry Street(these transfers represent the parcel as an individual lot) 1. Ruth T. Wallace to Edward A. Ennis, Frances E. Ennis and Florence E. Ennis 5/4/66 Book 788 page 330 (Ruth T. Wallace was the Executrix of James Leary's Estate) 2. James A. Leary from Michael E. Sweeney 12/27/41 Book 668 page 365 3. F. Andrew Hall and Grace B. Hall to Michael E. Sweeney 11/2/38 Book 397 page 533 This lot continues historically into the 1800s. II. City Assessors Map Exhibit"B" Attached is a portion of the City Assessor's Map from approximately 1940-- 1960. The two subject properties were: 59 Franklin Street Section 10 Block C Lot 1 11 Cherry Street Section 10 Block C Lot 2 This configuration matches the deed descriptions for the two(2)parcels. III. City of Saratoga Springs Tax Rolls 1940, 1950, 1959 Exhibit"C" These Tax Rolls when compared with the above City Assessors Maps show two distinct parcels of property at 11 Cherry Street and 59 Franklin Street. These lots pre-existed modem zoning in the City of Saratoga Springs. IV. Sandborn Maps from 1884, 1889, 1895, 1900, 1954 Exhibit"D" These Maps show the existence of two(2) separate buildings on the subject lots. V. Manning's Saratoga Springs Directory 1960—59 Franklin Street Exhibit"E" Show the structure at 59 Franklin Street to be occupied in 1960 by at least three individuals; James H. Fishback, Charles H. Blanchard and Grace G. Fisher. VI. Manning's Saratoga Springs Directory 1960— 11 Cherry Street Exhibit"F" Shows the structure at 11 Cherry Street to be occupied in 1960 by at least three individuals; Wayne D. Bishop, Merle E. Howroyd and Theodore R.Mabb. As a result of the documentation attached, there is no reasonable conclusion other than the fact that my clients own two(2)individual lots,that those lots have existed continuously form more than 100 years,that Mr.Vincent J. DeLeonardis,Esq. Ms. Susan Barden Mr.Anthony J. Izzo July 8,2019 Page 4 they have historically had residential uses on each property and those uses both pre and post existed modern zoning in the City of Saratoga Springs. As a result,we are seeking a written opinion from whatever person or department would be responsible for issuing such a written opinion,that my clients do not need a subdivision of their land and although an area variance(s) may be need with regard to l 1 Cherry Street upon granting an area variance, they have a right to construct a single-family residence on that property. If a meeting would be helpful to further discuss this issue. I will make myself available. Vince, I will call you in a few days to obtain your opinion as to when this matter would be addressed. Thank you all for your time in reviewing this question. Very truly yours, Michael J. Toohey MJT:tlp cc: Mark Torpey, Chair of Planning Board Jennifer Merriman, Administrative Assistant Richard DeVall and David DeVall