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Home My WebLink About20200177 Buenos Hill Auto Special Use Permit Narrative � LAW OFFICE OF WILLIAM R. DICENZO ATTORNEY&COUNSELOR AT LAW 34-62 JUNCTION BLVD.-JACKSON HEIGHTS,NY 11372 OFFICE:(929)462-0444 FAX:(929)462-0441 June 21, 2021 Via USPS Certified Mail Return Receipt Requested Mark Torpey - Chairman City of Saratoga Springs Planning Board 474 Broadway —City Hall Saratoga Springs, New York 12866 Susan Barden—Principal Planner City of Saratoga Springs Office of Planning & Economic Development 474 Broadway —City Hall, Suite 32 Saratoga Springs, New York 12866 Anthony Scirocco - Commissioner City of Saratoga Springs Department of Public Works 474 Broadway —City Hall Saratoga Springs, New York 12866 Tom L. Lewis - Chairman Saratoga County Planning Board Saratoga County Municipal Offices 50 West High Street# 3 Ballston Spa, New York 12020 Re: Application for Permanent Special Use Permit and Site Plan Review 254 Washington Street: Automobile Garage & Sales/Office Use Dear Chairman Torpey: I am in-house counsel to Buenos Hill Inc. (the "Applicant"). On behalf of the Applicant, I write in response to your memorandum dated April 29, 2021, following the May 28, 2020, and April 22, 2021,public hearings before the City of Saratoga Springs Planning Board (`Board"), and any extensions thereof, as well as in response to comments received from Al Flick, Senior Engineering Technician within the City of Saratoga Springs Public Works Department("DPW"), received April 23, 2021, and comments from Susan Barden, Principal Planner at the City of Saratoga Springs Office of Planning & Economic Development("Planning Department"), received April 26, 2021, and comments from Michael Valentine, Senior Planner Authorized Agent for Saratoga County, dated April 29, 2020. This submission supplements my March 10, 2020 letter with Exhibits A through C thereto and my March 4, 2021 letter with Exhibits D-K. For the Board's convenience, the exhibits to this submission are labeled "Exhibit L" through "Exhibit S." City of Saratoga Springs Planning Board June 21, 2021 Page 2 of 28 INTRODUCTION The Applicant is the owner of 254 Washington Street in the City of Saratoga Springs (the "Property"). The Property has been used for automotive sales and service for most of its history. Between 1990 and 2012, the Property was zoned in the Commercial —2 Highway General Business District(the "C2 District")where automotive sales and services were permitted as of right(i.e., without a special use permit). Since 1999, the Property has been used continuously for automotive sales and services. The Applicant brings this matter before the Board for the bene�t of the Applicant and the City of Saratoga Springs ("the City")because the City has no or very minimal records and documentation for the Property. The City lacks records concerning the Property because sometime between 1971 and 1989, the City of Saratoga Springs lost the property records and plan for this site.i This lack of recordation has created confusion among the Planning Department, the Applicant,past and future potential tenants, and the City's Tax Assessment Of�ce.2 The Applicant seeks to record the existing uses of the Property for automotive sales and service and add an of�ce component incidental and/or secondary to those uses, as well as make repairs and cosmetic improvements to the building, and improvements to the grounds, to enhance the marketability and productivity of the site, before reusing it or renting it. In all other respects, the site is unchanged. The Applicant's goals are consistent with the recommended actions of the 2015 Comprehensive Plan (the "Plan"), which encourages growth in underutilized commercial areas, promotion of independently owned local businesses, encouragement of land uses that build long- term fiscal sustainability, and maintenance of a diverse property tax base, as well as support for high-tech and small manufacturing.3 Further, the application to this Board is consistent with the spirit and intent of the Plan's investment and growth strategy. The Plan recommended an "Enhanced Land Use Review Process,"where the regulatory and project review would be clear and streamlined to encourage investment in the City by reducing time delays and extraordinary costs to both the project sponsors and the City. �See Exhibit L,"FOIL request dated 12/9/18—records retention." �See E�ibit M,"Complaint on Real Property Assessment for 2021." 3 See Ciry of Saratoga Springs 2015 Comprehensive Plan Section 3.1 Local Recommended Actions. City of Saratoga Springs Planning Board June 21, 2021 Page 3 of 28 ANALYSIS To analyze the issues presented by the comments from the parties listed above, I have divided the issues into three groups: A) Technical, B) Engineering or Planning, and C) Legal. The comments from the Board, Mr. Flick, Ms. Barden, and Mr. Valentine are listed below in bold; the Applicant's responses are listed in the bullet points beneath each comment. A.)Technical Issues (i) Provide a Title Sheet to include drawing index, site stats, planning board signatory block, city standard notes,land use board approval(s), and other information typically shown or required on this sheet. ■ The Applicant updated the site plan to include a Title Sheet and other typical information for a project of this scope. (ii) Plan set to include a survey drawing signed/stamped by a licensed surveyor which shows boundary and topographic information. ■ The Applicant's surveyor updated the survey to include topographic information. (iu) Identify all adjacent properties (owner name, tax id) as well as 20-foot easement along the westerly bounds of the parcel. ■ The Applicant's surveyor updated the survey to include the adjacent owner's name and tax id. (iv) Design engineer to verify the existing septic system is sized appropriately for building use. ■ The Applicant hired Ten Eyck Septic Tank Services Inc. to conduct an inspection and the report indicated the tank itself is fine, but some repairs are warranted.4 The site plan was also updated to reflect the septic size, which is more than sufficient to meet the building's needs. (v) Submit a cost estimate for remaining, proposed, and/or required site improvements which include an as-built drawing. ■ The Applicant updated the site plan to provide the costs of existing on-site improvements and repairs, remaining work to be performed, and the costs associated with off-site work, i.e., application and professional services. 4 See Exhibit N,"Ten Eyck Septic Tank Service Inc.Report dated June 4,2021." City of Saratoga Springs Planning Board June 21, 2021 Page 4 of 28 (vi) The Planning Board would like you to provide (or update) the lighting plan to include the level of illumination to assess any light spillage onto adjacent properties. ■ The lighting plan was updated to show the level of illumination and there are no issues with any light spillage onto the neighboring property. B.) Engineering or Planning Issues (i) The Planning Board would like to see an updated landscaping plan to provide further plantings within the parking lot—the ordinance parking requirements for new parking lots call for a minimum of 10% of the lot to be landscaped. ■ The existing lot contained 12.66 % green space. Unlike a new development, the Applicant does not have the benefit of starting with a "blank slate." However, the Applicant has agreed to add four new "Kwanzan" Cherry Blossom trees, along with additional green space near the fence line and additional boxwood or small shrubbery at the easterly corner of the present drive-way.5 These added improvements coupled with the grassy areas in the rear raised the total green space to 29.14%. 4 � . [� �. ,� ��n 1} ��` ' 'n' +n-a_�Y. � ��. �!." �� J . � � "�` :. r h�j�� ,�'' - � ��'� ��w' � t"� � � �•+y�F , �,. �; r �i! �+'7' '� t� �,+ �.� �y�c'�✓ ,r�� •y:�; ,}R�„y�j�y �� ;�'""l�.;I' t' r '.� I I r � *� � � �� Ci �, a t� Y t �Y �-�. _ ��`f � * ,� _ , �€' ,��d � � + . ry,�� z� � - � a' � . r'� �_ :�'�. �;, � �� • �� ". � '_"� �, ��e � �� . . , � � Images ❑epict I�ature Plar�ts (ii) The location of the mailbox at the easterly entrance presents an impediment to the line of sight for cars leaving the site and may encourage employees to check the mailbox while temporarily blocking the entrance. The mailbox should be located in a safer spot near the building. ■ The existing mailbox was located by the easterly entrance because the local Post Master General recommended it go there. The Applicant has moved the mailbox in front of the well and away from any parking per the Board's suggestion. s Kwanzan Cheny trees are a flowering tree that will not overwhelm the landscape.They grow in an upright"V" shape and will not spread out and overtake the sightlines.They are one of the main varieties planted at the Tidal Basin in Washington D.C.,and are frequently the highlight of the Cherry Blossom festival every spring. City of Saratoga Springs Planning Board June 21, 2021 Page 5 of 28 �_. _. �� : � ' .� ' ;a .� _,:� �. �' �,' 'x `� � - �{ `4. �5 A + -�'... �� y�l,.�{ {I '�� y' � r ��f �� . . ___ iJ� � �� I j�._�■ . _ `,. ,� � . r. "� � ±� �.�h � '�_ i. �1',! ,!r— � �_ �s ,��,� �'�; _a� ��^`�� :,�r_ — -- :� ., . � � . _ � . , �� - a,� , . _ _ a- _ , _��.� - - . .- =�- _- - �++i'►�-. - _ : _ � _- �,:_ . �_ - �... , � .. � ea•�. �«:r.>� .;::-a�...� -- �'= _ -- ` � " . '� — -- � „ -: . ,� � , �, � ,,.�,�� _ �: . , �� L �r . . . , .. . t�} �_�� ....j i' ' . _ y _ �2 ,F ¢�c`��` . ' . ' '. . 5� �. ,p� �,�Fn" ::�'_ . ' . � ' .. . ' _ .,c� - . _...,H�LS. -- � ... , � . .. . . � . . . (iu) The parking spots nearest the entrance points on both the east and west sides of the property present an unsafe condition for employees/customers backing out when entering employees/customers may be moving at higher speeds coming from Washington Street. The parking configuration should be altered to avoid these "pinch point" spots too close to the entrance. Consideration should be given to establishing employee parking spots behind the building towards the southern end of the property. ■ The Applicant updated the site plan reducing the number of parking spots near the westerly entrance point where cars may be traveling at faster speeds. ■ The parking spaces around the perimeter will be largely stationary since they are for product placement. ■ Behind the parking lot, screened from view, is the off-street loading area and concrete pad, traditionally used for loading and unloading of inventory,parts, and supplies, and the temporary storage of impaired vehicles. It is not meant for general vehicular circulation. City of Saratoga Springs Planning Board June 21, 2021 Page 6 of 28 (iv) The westerly entrance point is skewed at an angle and presents unnecessary confusion for motorists and pedestrians. Is this angled entrance meant to signal that those exiting the property should only make a left-hand turn on to Washington St? The westerly most stone pillar of the "estate fence" protrudes out into the drive lane and presents a significant safety hazard. ■ On the site plan, the preexisting westerly entrance point appears skewed but is perpendicular and parallel to the highway. It is only upon entering that lines will direct vehicular traffic for streamlined and safer ingress and egress. The added green space abutting the fence line will also further reduce any confusion and the front row of angled parking was reversed to streamline cars entering and exiting from that entrance and to provide better screening of the parked cars. Historically, the westerly entrance was used less frequently than the easterly entrance and the same is anticipated. � ' � ._:,�� ; � ��: �t _ �� , � 4 � T��+� � �. � ��-�_�, �� I��'i _ �-- � , ,��- - 3�� -� �� -� � ..� � � , ��:.� ,��_- F�; �.�� - _ ;�� - � F - . � , k � � � � w° ■ Historically, cars entering or exiting from the westerly driveway were able to turn left or right and no changes are proposed to use the driveway and access road differently. ■ The westerly stone pillar of the "estate fence" does not protrude into the drive lane. It may appear that way on the site plan, but the stone pillar stops at the point of the pre-existing driveway and faces perpendicular and parallel to the highway. There is approximately 25 feet of right-of-way before a turn of any sort is facilitated. Furthermore, the existing shared driveway and combined access road are more than 45 feet wide. It has never presented with issues. Please see the photographs below. 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L•., d'a vk-s �_.1 'Ki� � h_—�yl-� ir�' � �__ �a• �t City of Saratoga Springs Planning Board June 21, 2021 Page 9 of 28 C.)Legal Issues (i) The Applicant Does Not Need a Special Use Permit Because The Property Has Been Used for Automotive Sales and Service Continuously Since 1999. ■ The Properry has been used for automotive sales and service for most of its history. ■ Between 1990 and 2012, the Property was zoned in the Commercial —2 Highway General Business District(the "C2 District")where automotive sales and services were permitted as of right(i.e., without a special use permit).6 ■ Since 1999, the Property has been used continuously for automotive sales and services.' Therefore, the Applicant does not require a special use permit to continue using the Property for automotive sales and services. (ii) The Planning Board Cannot Require a Property Owner to Build Improvements Along the State Highway. ■ As a general principle, local zoning codes do not apply to the lands of the State.g A Town Board may not by ordinance compel individual property owners to construct sidewalks in a State highway.9 ■ The matter of highway improvements is preemptively occupied by a comprehensive and detailed state regulatory scheme.10 Under Highway Law § 54, "Walks or paths for pedestrians may be constructed by a county along any improved state highway or along a part thereof in any town of the county,pursuant to the provisions of this section."ii 6 See Exhibit O,"C-2 Commercial District and Permitted Principal Uses." 'The registered Motor Vehicle Repair Shop and Dealer and Transporter licenses utilized by the Property's tenants since 1999 are attached as Exhibit B to my March 10,2020 letter submitted in support of the Application for a Special Use Permit. 8 See Town ofElba v. Grimditch, 98 A.D.3d 183, 189,948 N.Y.S2d 137(3d Dept.2012). 9 N.Y.HIGx Law§54(Consol.2021)citing 1945 Ops St Compt 471.See also Exhibit P"Opinions of the Office of the State Comptroller." io AlbanyArea Builders Ass'n v. Guiderland, 74 N.Y2d 372,377-388,546 N.E2d 920,547 N.Y.S2d 627(1989); N.Y. State Pub. Emples.Fed'n v.Albany, 72 N.Y2d 96, 101,527 N.E2d 253,531 N.Y.S2d 770(1988)("The legislature retains ultimate control over the highways ..."). ii See also H�Gx.Law§§ 151,284,285,and 49; GEN.MuN.Law§§6-c, and 8;Loc.FIN.Law§ 10. City of Saratoga Springs Planning Board June 21, 2021 Page 10 of 28 ■ Highway Law § 54 provides that the County is responsible for the cost of constructing sidewalks along a State Highway and that municipalities are required to reimburse the County under certain circumstances. ■ Impact fees or extractions or compulsory spending for the construction of what is primarily a public bene�t to offset the cost of general government improvements, under the guise of a permit or site plan review, is equivalent to an impermissible tax. Taxes are burdens of a pecuniary nature imposed to defray the costs of government services generally.i� (iu) The City Cannot Rely On Its Complete Streets Plan to Compel a Property Owner to Build Improvements Along the State Highway. ■ Municipal governments lack inherent power to enact zoning or land use regulations, accept through a legislative grant. In the absence of legislative delegation, its acts are ultra vires. 13 There are inherent limits to site plan review, and zoning laws by their very nature are in derogation of common-law property rights and must be strictly construed in favor of the Applicant.14 ■ On August 15, 2011, Governor Andrew M. Cuomo signed the Complete Streets Act amending Highway Law § 331 to implement consideration of complete street design (a) "For all state, county and local transportation projects that are undertaken by the department or receive both federal and state funding and are subject to department of transportation oversight, the department or agency with jurisdiction over such projects shall consider 1z See generally, Matter of Tillim v. Village ofHunter; 2009 NY Slip Op 324ll(U)(Sup. Ct.Greene County 2009); Phillips v. Town of Clifton Park Water Authority, 286 A.D2d 834,730 N.Y.S2d 565 (3d Dept.2001);New York Tel. Co. v. City ofAmsterdam, 200 A.D2d 315,613 N.Y.S2d 993 (3d Dept. 1994); Coconato v. Esopus, 152 A.D2d 39,44,547 N.Y.S2d 953 (3d Dept. 1989)("[A] uniform fee on all new dwelling units without regard to whether the development has necessitated an expansion of existing facilities or whether plaintiffs will be primarily and proportionately benefitted by any such expansion ... constitutes a t�,prohibited by the Municipal Home Rule Law and violative of the Federal and State Constitutions"). 13 See generally,,Ioy Bldrs.,Inc. v. Town of Clarkstown, 165 A.D.3d 1084, 87 N.Y.S3d 60(2d Dept.2018);Matter ofKamhi v. Planning Bd. of Town of Yorktown, 59 N.Y2d 385,389,452 N.E2d 1193,465 N.Y.S2d 865 (1983). 14 See generally, Matter ofAmerican Chophouse Enterprises,LLC v. Town ofHuntzngton, 2008 NY Slip Op 32902 (U)(Sup. Ct. Suffolk County 2008);Moriarty v. Planning Bd. of Sloatsburg, ll9 A.D2d 188,506 N.Y.S2d 184(2d Dept. 1986);Frishman v. Schmidt, 61 N.Y2d 823,462 N.E2d 134,473 N.Y.S2d 957 (1984)("A zoning ordinance is to be strictly construed in favor of the property owner... ");RiegartApartments Corp. v. Planning Bd. of Clarkstown, 57 N.Y2d 206,441 N.E2d 1076,455 N.Y.S2d 558 (1982)("Although a town may require that,before approving a plat,either land or money-in-lieu-of-land be delivered to the municipaliry for developing parks,no such conditions may be imposed on the approval of a site plan"). City of Saratoga Springs Planning Board June 21, 2021 Page 11 of 28 the convenient access and mobility on the road network by all users of all ages, including motorists,pedestrians, bicyclists, and public transportation users through the use of complete street design features in the planning, design, construction, and rehabilitation, but not including resurfacing, maintenance, or pavement recycling of such project. is ■ This enabling legislation, "applies to projects that are undertaken by NYSDOT, or to local projects that receive both federal and state funding and are subject to NYSDOT oversight. Projects that are 100% locally funded are not subject to the law, but local agencies can choose to adopt Complete Streets practices." The New York State Department of Transportation and local agencies —typically counties and municipalities — are responsible for implementing Complete Streets.16 ■ There is nothing contained within the Complete Streets legislation enabling local municipalities to compel private property owners to pay for or carry the costs of implementing these policies. (iv) Estate fence w/lights as well as knee wall around front sign encroach on State DOT Right-of-Way. The recently erected estate fence is located in the NYSDOT right of way and does not fully line up with the parking area it is required to buffer from view. The T5 district includes specific requirements for providing adequate screening on on-site parking. The Planning Board would never have asked the applicant to install hard fencing of this type on public property and the work seems to have been completed before any approvals were granted. A simple vegetative buffer would have been sufficient for buffering the street-side parking. The estate fence should be removed and replaced with a "softer"vegetative buffer that fully lines up with the parking area. The County Planning Board expressed further concerns regarding the location of the estate fence as well. ■ The alleged encroachment is also governed by Highway Law § 52 or by separate civil action. Encroachments of this alleged nature are common and unless they give rise to a private or public nuisance, are of little concern. Whether an encroachment is reasonable is a question of fact.i' Only in the rarest of circumstances, e.g., substantial interference, and where the encroachment is structural as opposed to non-structural, might �s For the complete text see HiGx§331. 16 https://www.dot.ny.gov/pro�rams/completestreets i'See generally, John L.Finck, The New YorkLaw On Encroachments And Obsti^uctions Upon Str^eets And Highways, 14 ST.Jo�'s Law REv�Ew 1 (November, 1939);Ashland Oil&Refining Co. v. State, 26 N.Y2d 390, 258 N.E2d 915, 310 N.Y.S2d 500(1970). City of Saratoga Springs Planning Board June 21, 2021 Page 12 of 28 an encroachment be remedied by removal. Courts will consider the extent of impairment, whether it was willful or accidental, the hardship posed by removal, and whether there is any alternative form of relief. The benefit of removal must outweigh the potential damage and cost of removal.ig Furthermore, an encroachment of this nature is deemed permissive and non-adverse.l� ■ The City of Saratoga Springs Zoning Ordinance("the Ordinance") Article 3.0, Subsection C (3)reads, "Surface parking areas should be screened by a suitable streetwall or continuous hedge between 3.5 and 4.5 feet in height and located at the middle or rear of a property." There is no definition of"streetwall"within the ordinance and there is no ban on estate fences and no requirement for a building permit.20 A simpler knee wall was proposed to the Board but rejected as insuf�cient. Likewise, a "soft" vegetative buffer would not meet the de�nition of a continuous hedge between 3.5 feet and 4.5 in height. ■ The Applicant was inspired to construct a suitable streetwall of modern materials after the one built by the Holiday Inn, 232 Broadway, Saratoga Springs, NY 12866. The cost was $19,712.50. Please see the photographs below: 232 BROADWAY _ - I�- LL � , , �� . ��{� ��i � � � , i '�..�pr4�y�i"`R�. A• �-''�"x. _ 1 '' ��. �� ,�� '_ "� _ I� y � �� - ';;� ''_� ,r� ` .:�. -_ -_-�II3�" _- a `: � II F .�� 1�+ �? � �;�_ � , r� � '�" '� �� p�r. p 7 ��u tFi`t�� ri;��i '1 ' � � � ' , ,. ��+ � � �� ' , . - '* -- , � �� - — �_ ..�. 18 See generally, Marsh v. Hogan, 81 A.D.3d 1241, 1243,919 N.Y.S2d 536(3d Dept.2011); Christopher v. Rosse, 91 A.D2d 768,769,458 N.Y.S2d 8 (3d Dept. 1982). 19 See NY RPAPL § 543;Sawyer v.Prusky, 71 A.D.3d 1325, 1327, 896 N.Y.S2d 536(3d Dept.2010)("Court rightly concluded that plaintiffs' rock wall along the common boundary line is a non-structural encroachment"). zo See 19 NYCRR § 12022& 12033 (exempting installation of fences and the construction of retaining walls from the requirement of a building permit). City of Saratoga Springs Planning Board June 21, 2021 Page 13 of 28 254 WASHINGTON STREET ��, � � _{_� �'�y-4 �i i�f'�. � —`—� s� ��,`� ,.y i� ,r._+' . . �i� 'f� � ri ��; ' `J f' s' �f : - �i ` �� ' f' �k �, ' �� r a �"_ � �� lf x'� � —— — �7� . � r .. .�Y { $ _ ��= —• '! — ' ' _� • .�� _ �� ._ . �` �� ' �r .i - =yi — ` _ ,�l �. � . , � �• � A� � � '. ;,� �� 'R 3 ' ,Il:�� —�f I _� I I i I I I �'� --•— _ ' �� + _ — .�.. l � .�—.� �.. �4 ��. � _ ,., +..� � ■ The Applicant was confined to the old "timberline" of the island area when constructing a suitable screen and did not have the bene�t of working from a"blank slate." Any alleged encroachment was accidentaL Moreover, neither the state nor the city maintains the right- of-way, and the island area was not appropriated, if at all, until 1959. Please see the photo below showing the line the streetwall replaced. ■ The benefit to the public in removing the estate fence does not outweigh the cost to the Applicant and the fence meets or exceeds the requirements of the Ordinance. Lastly, to provide better coverage, the Applicant reversed the angled car parking. BEFORE , � .� : � �r � � ��, � � � �� ; � � �"� �� ; `-- ,� �yx—� r ,:; ��y �� 'ti � � ,,� 1' ,,�� `�*'" , �. ` �i � :+��--�.�,I f _ - . _�' '�.9 �. � �• .��...r9 — 1 �: f� �5Y•1t � �' �_ " u/� �'` :4� ��t�� t� .r •�. . i.. �� .. r,% 1� � -�� ,�r -:�.��*�.�'.�;� - _ ,t .� ,.,.��_ . "`' , � '"r` ,rj�``�—�`'"� � . ' _ _ ��,;._' ,�• � �. �'�,�,�,�:��` � - �� . • . � ,�� ,..�... ,_�,.. _ � p � , d� ., ,,� ;u� �".�� ';;' � ° ,��s,r�� ;.� .+� �"�'.�1F J' � '. r r,':�M �, e v' 1A'F `�{te a>ti.,w� '"�'�-�,Y. ' y_ ' N� �, � .-��''d��.�U�t� 1r .i�� ._. F„ ,,v t - 1 � ` ySl ��y�l� � I��V � �A r � „ '�' _--. y�- ��AsY�'i. r �1�.r .1. ,�` i,a � ,ydi4�fhr�giy\ ''hy� �•� c ,r;��. L ,- � t�.� f 'F. ! .ir . . s � .. . . . .�` . �:�r ! :.:; � � ..� �1 �� r �� a �t �� 1� y�, �P � �`"?ha�� `,�� r�`�.��C��, � ��s �n - ' �sl��. ., ..:�,; .. � � � .�. �.'',` S . ��:. �� e�0,"�2.x�1.:�uY�.y-.�'P1r`�.��.' ; � City of Saratoga Springs Planning Board June 21, 2021 Page 14 of 28 AFTER � ,: :�# - ,� - _ - ;-- 1-��` � � :� _ --� � _ � .� �- � --�� ' � �� , �-� -w�1"��:� � r � i'- s'1 i , �i° : r ,�e � ,__, � � , �:�• � _ -.. .�.. I �_ �� y "'� %��, .k. �-�"c � � i I ' I I _��•3�-- - � �." ��-- - _ i __--� — � '� � ';� . � ��'' '� ,�� — ` �- �, .�,.. { . ! � k� .�L.,y.�h e _ '��1��,� _� �, , i ,., , � �.� ' ,�°�� ,, � � �_".�^,��.��f�, w"Sx1`S�MGtr.�+yf;��1�.:.y``�� . __ ��_ (v) The main sign for the business extends beyond the boundary line of the parcel and is located in the NYSDOT right-of-way. The existing sign (and foundational base) should preferably be relocated to private property, but at a minimum NYSDOT approval shall be required. ■ Any alleged encroachment by the sign is also governed by Highway Law § 52 or by separate civil action. The sign is preexisting since the 1970s if not earlier. It was also granted a variance on May 23, 2016, by the city of Saratoga Springs Zoning Board of Appeals, which found no adverse physical or environmental impact to the neighborhood. The Site Plan was updated to reflect this decision. (vi) The driveway easement language between the two owners at 254 and 252 Washington Street needs to be reviewed and approved by the city attorney. ■ There is no written driveway easement language between the two owners at 254 and 252 Washington Street to be reviewed. The lands to the west of 254 Washington Street took the property, subject to the right-of-way, for the benefit of the property owner to the lands east of the right-of-way, which at one time, were all owned by the same grantor. ■ 254 Washington Street has an implied easement to the right-of-way, which gives it unobstructed passage, at all times, over the private road. This right-of-way is referenced as the boundary line in the deed. A lot City of Saratoga Springs Planning Board June 21, 2021 Page 15 of 28 bound by an existing right of way creates an easement in the way whether via implication or estoppel.�i Moreover, in the absence of any countervailing factors, reasonable use of an easement consisting of a right-of-way, which terminates at a road or highway, is a driveway providing access to property adjoining the easement.�� ■ The ariel map below provided by the NYS Department of Environmental Conversation is illustrative as it shows the property boundaries relative to the access road. The Applicant's property not only is legally bound to the way but travels to the middle of the road and cuts the driveway in half; ipso facto, it is a shared driveway. �' � ' � ` * `�► � � Skreeks � 4erials #: � i:.� � i•�- -2-?2. z � �'"� 4� �'� � �+ � �=� ` �� , . . ' ' ��F �s t''��'� " " `� �� r�� . � �4 '� ,`.�.1 .( M# y�.., � .. i — �9"�i ''-s�° � ��~� � �,s-��,� � � � --- �« i � ; � � _ �=y�, , � , � � �� .�, � �" ,, .� °'� �a .�-� �k� � � ' : i i ��: i � F � �- �f, �;,�� ' �i ..i . � .. -�R , .� �� ,y{ � II : '� . . �` . � tp i �r_� � �• .w��Y'� '�' � � .. ��` y �. . Y I��._ �Y.,— � '� 4 _ �II�'I -�� I � ' �3 Y e �� R � ��y ; �,�._`�'' �fi��#` y£� M `M - ^�" i � � ' ... ��i..^Aw }�,� � � � a ��;�, .'e. � R ��_ � ' ��L . ■ A look at the rest of this portion of Washington Street to West Avenue reveals the system of dual driveways and access roads, buffered by an island area, was the norm when this commercial district was established and has remained unchanged. �i See 229 Quimby Lane, LLC v. Quimby Lane Assn., 61 Misc.3d 1201(A),2018 NY Slip Op 51315(LT)(Sup. Ct. Suffolk County 2018);Heim v. Conroy, 211 A.D2d 868,621 N.Y.S2d 210(3d Dept. 1995); Collins v. Barker 286 A.D.349, 143 N.Y.S2d 173 (3d Dept. 1955);Ranscht v. Wi^ight, 9 A.D. 108,41 N.Y.S. 108(2d Dept. 1896); Huttemeier v.Albro, 18 N.Y.48,51 (1858)("It is a general rule that,upon a conveyance of land,whatever is in use for it,as an incident or appurtenance,passes with it"). zz See Phillips v. ,Iacobsen, 117 A.D2d 785,786,499 N.Y.S2d 428(2d Dept. 1986). City of Saratoga Springs Planning Board June 21, 2021 Page 16 of 28 , �� -.. -,..� ,��:�� :• t r�tC�Y . �y,, ,�', � ,_n. �� _�,_, �M 4' .�� .�� f` �f_�<x �rj; r ` - �'�' "+��`"ta� �_ '-:e '*:��,''".. ��n�t3�� i� �" '�" �''"� � . �-x- L �� '� ^ l � �� °� _ � � � � . i� . � ' � �,. � d � i . -��'4 ` �, ! `'^�_ '�' '� y �� s � � � �� . ; 'i ��l f�A�?.;nG;Yi�z��' � ��.,` �` � 'L�a��n+�fiiS'.a�. -� ' � s � .�' ��! 5 S�_ �' � , �� .� i �� oea '` _� .. 1 - ' 1 (vii) The applicant has requested an office use as "incidental" to the principle uses of"automobile sales" and"automobile garage."As stated before, the T-5 district is designed to accommodate a myriad of uses and the applicant may wish to consider a broader definition of the office use to provide greater flexibility. ■ The Applicant currently only has plans to convert the existing office space into three offices and a conference room, up to two offices to be used for motor vehicle sales, and the other office reserved for the Applicant. The bulk of building space is devoted to the primary uses of Automobile Garage and Automobile Sales. The Of�ce use is secondary and/or incidental to those primary uses. However, the Applicant agrees Of�ce ought to include Real Estate and Administrative, as those services are necessary to the owner's business, and also reflect the owner's use of any office. (viu) The Planning Board has no jurisdiction over the West Avenue Special Assessment District (WASAD) and cannot offer any guidance as to why the water/sewer lines were not extended to 254 Washington Street. This is an unfortunate occurrence because the uses are indeed limited w/o these utilities and this appears inconsistent with the intent of the T-5 district to allow all potential uses. The applicant is encouraged to work with the city and discuss what it would take to provide these utility connections. City of Saratoga Springs Planning Board June 21, 2021 Page 17 of 28 ■ The Property is located in a"Commercial District."23 Before 1959 the lands west of West Avenue were largely undeveloped, and the only known attraction was Ash Grove Farms. COLOR MAP 1940 I'�� r��r� �� * � .�� *:s� o�a-��-:�-�- . tii.Ef�rH�1�+Ex74� ivi:.5L4+, �k � --� '�' 1�"' ` . ~�— �� .��. ��oY—�I�F��*1Sy �. �L� �at i't1A1�7.�a3.��r�f* �ie ��1 � ��.r €LJr r a��W�•�� . �_ .°aa�. ��.a. � �i:i. � 1 � {�� i�I � iI {] � �--� Y 7 ��,:�i e y,�� .. � �r�►� �• � � � `* S-�.{ , :.� � � � � i�.04�� F �++�'�Mir'}��Tr�r�__ .�,4��r�_ . . ��J►]�IE�N�]:Y'!f#� I��.� �. ....----� . � �.ASi;t J . � � F+ i ■ The current building on the Property was built sometime in the 1960s or early 1970s. By 1971 city planners had destined the area for planned business and industrial growth and this site was labeled B-3 for Planned Business District. B-3 permitted all uses in B-1 and B-2 and allowed for"used car sales" and "auto repairs." It is presumed, for lack of recordation, the then owner, Ed Shepard, a car dealer, possessed both. In 1973 he sold the property to Louis J. Farone Jr. who later rented the premises to William DiCenzo Sr., and Mr. DiCenzo Sr. subsequently purchased the property in 1983. z3 See Saratoga Springs Ciry Ordinance Appendix A:Definition of Terms—Page 7. City of Saratoga Springs Planning Board June 21, 2021 Page 18 of 28 ZONING MAP 1971 �___� � �____�--�:.�. 4 I `�_�:`__�. ys - -_ --- i i —='_+,��.- l I � --_ i � I �F�� ~--�,-.�4�... i € �;1� ;, � ":3�� '_�,� F � � '�: � ,� � ;�� . � �g�a;. � ��M k �� + �� E t r � � j. '�.� }*.� 1 f �.r�1�� . �t� �i - n� t�ti � ��'i� � .-. ;'� , �� t .c I �+�' �, � : � � � � �s �i�s ; �' � ,:. �.. ��,`��,' � ` �' > ,.1f� E : P ,� -- -- ' .� .� <<�,o• _,_- - = F � �"- .;:----- f t-5- .-} � ,�,, ��. { �. � i'"`�4't� 4 i 1 �y', .'�rj �' � ��ri'�� ' �� I � VKA s: �i 4: � �- � � �� =i �':%' � ,3 —W (.. '�l � f 5■ '+n/ f..+' � ��i b� Y 4 iI '�,�'/�t� �A��.k. f�J'x'o�°1` - ��i�-' � �i� '� � . , , . -'�;{k�4e,:'a� Q,�1 s�F`d8N`Yr �:'r��tfl�F.^.�S __.__.__ � _ _. • �c�:e,�r��F � �� . . . „-�.��. .. �....i;:i�.,£#4£'£ . _ , . -., . . � ...._.=�.Mrt � . .� � , ... . . -.. :-. . � ._ � ._ �.� a� . . �� . ._. � . � � . .. :, ,,..,. ... . ■ On February 15, 2000, the City of Saratoga Springs passed Local Law 1 of 2000, which established the West Avenue Special Assessment District("WASAD")to make water and sewer infrastructure improvements to the area. The boundaries of the district more or less mirrored the 1971 commercial business district established 29 years earlier, accept it excluded 254 Washington Street. The upgrades allowed for greater existing use and development of unimproved lands. Minutes of the law's passage reflects that every city department was involved in the establishment of WASAD, which remains an active district. City of Saratoga Springs Planning Board June 21, 2021 Page 19 of 28 WASAD DISTRICT MAP 2000 -_ .� .,. -...} . I � �,�" �w�,�-k�, , �---, '' r—�— _ .—� �--��`�ifi�a,�. -� -..� �.L 4 .e k� " • t� . . �� _ �F�� s�c, � � � - , i �� ` r , L �. ��_i: ,� .;�r., , �5 e�r�1ra �s � �v� •• • r i K „� � � �i• � . � ' �,. �� ( �F-�� a' — w3 . S ,1 '� � � . �'_ �_� x I �� Id'.+i 7 � �; „�rt �+ �'� , ,. � � --� "` �. �-� �� r -, ��' �,T��• j � _ =L--- - — .� �._ � - ��-� �� , 7 . I ;a.� � e�.� ---_ �- � �� ,�� _ ` - - :-4 �,, ��" ��l�=r �a� Y.}.- .� �� '�_ � ��=�y�"��s x'-U:i F�~�l�' ,�� l�i.: '', •}�' ■ WASAD paved the way for larger commercial use and residential development. As a result, what was a Commercial 2 highway/general business district evolved into the Transect 5 —Neighborhood Center under the 2012 Ordinance. What was solely intended as a commercial district 40 years earlier gave way to accommodate new residential use. In keeping with tradition, however, the Ordinance permitted auto sales and services. ■ The only comme�cial prope�ty owne�exclu�led from WASAD was William DiCenzo Sr. ■ On August 18, 2018, the Applicant put the department of Planning & Economic Development on notice that the lack of modern infrastructure at Washington Street presented an impediment to improving this site and using it for anything other than automotive sales and service. City of Saratoga Springs Planning Board June 21, 2021 Page 20 of 28 ■ After delving into the engineering issues further the Applicant realized neither it nor any potential tenant would be able to absorb the costs of extending the water and sewer lines to its property.24 ■ In 2019 the Applicant moved forward with its plans to make repairs to its property and met again with Susan Barden to submit a Design Review District Application and was informed the City did not recognize the Applicant's existing use. Therefore, in early 2020 the Applicant submitted its application for a Special Use Permit before this Board.25 ■ Given this history, the Applicant has a claim of right to continue the permissible uses of automotive sales and service and to have the City acknowledge those uses, without any need for a special permit.26 It was improper to characterize this project as a change from a non- conforming use.27 POST -ANALYSIS A.)Substantive Due Process (i) Inverse Condemnation ■ "An ordinance which permanently so restricts the use of property that it cannot be used for any reasonable purpose goes, it is plain, beyond regulation, and must be recognized as a taking of the property. The only substantial difference, in such case, between restriction and actual taking, is that the restriction leaves the owner subject to the burden of payment of taxation, while the outright confiscation would relieve him of that burden" �g ■ The Transect 5-District alleges to be"flexible,"but it begs the question, for whom? It categorically restricts all uses and structures 24 See Exhibit Q,"Email dated November 1,2018,from William DiCenzo Esq.,to Susan Barden,Trish Bush,Tony Izzo,and Kate Maynard,and the response from Susan Barden dated December 6,2018. zs See Exhibit R,"Email dated March 10,2020,from William R.DiCenzo Esq.,to Susan Barden." 26 Arverne Bay Const. Co. v. Thatcher; 278 N.Y.222,225, 15 N.E2d 587(1938)("In this action it demands as a right what has been refused to it as a favor"). 27 City of Saratoga Springs Zoning Ordinance 53.5. Only when there is a non-conforming use,which is replaced or augmented by another use,does the new and any future use need to conform to the Ordinance requirements. 28 Arverne Bay Const. Co. v. Thatcher; 278 N.Y.222,232, 15 N.E2d 587(1938). City of Saratoga Springs Planning Board June 21, 2021 Page 21 of 28 but permits them with a special use permit and site plan approval. General City Law § 27-a(2)(a) states a city ordinance or local law, "shall specify the land uses that require site plan approval ... ." (emphasis addec�. Furthermore, by definition, a"special use" is a use, which because of its unique characteristics requires individual consideration by the Planning Board, before it may be permitted.29 A "special use permit" shall mean an authorization of a particular land use which is permitted in a zoning ordinance or local law, subject to requirements imposed by such zoning ordinance or local law to assure that the proposed use is in harmony with such zoning ordinance or local law and will not adversely affect the neighborhood if such requirements are met.3o ■ Not every use can be "special," and most uses not attached to new development or a large site, have no planning requirement.31 The current statutory scheme classifying all uses as "special" and requiring all uses to have a site plan is irrational. The restriction itself constitutes an invasion of the Applicant's property rights. It also cannot be applied equally. The nature of this scheme suggests an intent to regulate the user and/or the business itself rather than the use and is unconstitutional.32 z9 See Saratoga Springs Ciry Ordinance Appendix A: Definition of Terms—Page 17 3o See GEN.CITY LAW§27-b. 31 See generally, NEW YORK LAND USE TOOLS:COUNTIES,CITIES,TOWNS,AND VILLAGES,A 2008 SURVEY OF LAND usE xEGULaT1oNs�NEw Yo�S raTE,compiled by the New York Legislative Commission on Rural Resource at Page 17 ("In metropolitan areas,site plan review is most commonly applied to large-scale commercial or residential development such as shopping malls,superstores, large subdivisions,and planned unit development as part of the local zoning ordinance and SEQRA review ... The addition of site plan review to the statutes in 1975 came in response to a problem that had been plaguing municipal planning and zoning officials for some time:the lack of any rype of review and approval when there was a single—rypically large—parcel being developed." 3z See generally, Sunrise Check Cashing&Payi^oll Sei^vs.,Inc. v. Town of Hempstead, 20 N.Y.3d 481,485,986 N.E2d 898,964 N.Y.S2d 64(2013)("It is a fundamental principle of zoning that a zoning board is charged with the regulation of land use and not with the person who owns or occupies it");Albany Preparatory Charter School v. City ofAlbany, 31 A.D.3d 870, 871, 818 N.Y.S2d 651 (3d Dept.200� ("Wholesale exclusion of educational uses from the commercial districts in question are unconstitutional on their face"); Town of Orangetown v. Magee, 88 N.Y2d 41,53,665 N.E2d 1061,643 N.Y.S2d 21 (1996)(After acquiring a cognizable property interest,due process assures the property owner the right to be free from arbitrary or irrational municipal actions destructive of this interest);Fred F. French Investing Co. v.New York, 39 N.Y2d 587,596,350 N.E2d 381,385 N.Y.S2d 5 (1976)("The ultimate evil of a deprivation of properry,or better,a frustration of property rights,under the guise of an exercise of the police power is that it forces the owner to assume the cost of providing a benefit to the public without recoupment");Ilasi v. Long Beach, 38 N.Y2d 383,388, 342 N.E2d 594,379 N.Y.S2d 831 (1976)("What is mandated is that there be comprehensiveness of planning,rather than special interest,irrational ad hocery");Mary Chess,Inc. v. Glen Cove, 18 N.Y2d 205,209-210,219 N.E2d 406,273 N.Y.S2d 46 (1966)("When an ordinance does go so far as to preclude the use of the property for any purpose for which it is reasonably adapted,it is confiscatory and must be held unconstitutional as to such properiy");Somers v. Camarco, 308 N.Y.537,541, 127 City of Saratoga Springs Planning Board June 21, 2021 Page 22 of 28 (ii) Lack of Equal Protection ■ The Applicant's property is situated among a group of properties historically linked together by a common zoning district: The Planned Business Districts of the 1970s and 1980s and the Commercial Districts of the 1990s and 2000s surrounding the area between Highway Route 9N, Route 29, Grand Avenue, and West Avenue. This group came to de�ne the boundary-line comprising the WASAD Special District except the Applicant's property was singled out for exclusion. ■ Given the City's loss of the Applicant's property records, the exclusion of the Applicant from WASAD, the statements made by representatives of DPW both past and current, William DiCenzo Sr.'s Viemam Veteran staxus, the City's failure to accurately record the use of the Applicant's property, the City's failure to accurately record the address of the property for tax purposes, the unconstitutional regulatory scheme enacted in 2012 affecting the use of the property, and the current treatment of the Applicant, it is fair to assume the policy to treat this Applicant's property differently than similarly situated properties is based upon an improper motive, such as unconstitutional bias, ill-will or spite. It suggests the City's actions or inactions were meant to intentionally burden the Applicant's property. ■ Similarly, two recentprojects were before this Board: Chow Bella and West Hill Plaza. Both, like the Applicant, were Type II SEQR actions, located within the T-5 zone, and involved re-use of a preexisting site; the former, a change of use, and the latter, a retail subdivision. Like the Applicant, both projects involved some window dressing to the respective sites, alterations and repairs, asphalt resurfacing, and line striping. Please see the photos below. N.E2d 327(1955)(The law cannot unreasonably deprive a property owner of a vested right and relegate them to the position of seeking permission to do that which they had a legal right to do). City of Saratoga Springs Planning Board June 21, 2021 Page 23 of 28 WEST HILL PLAZA—WASHINGTON STREET , : , � . � ,, , �' -—�.. � � �1 E r� _ � �� flt •w_� � , — � � �! -} ; r.. � - ..� _� _ --��, - - - - � , -=- �- �, �- -=- - City of Saratoga Springs Planning Board June 21, 2021 Page 24 of 28 ■ In both instances, the projects were either exempted from site plan review or site plan review was waived, and in the case of West Hill Plaza, it did not need a special use permit to rent to new retail customers, required no additional screening, landscaping, down-faced lighting, or pedestrian accommodations. Chow Bella likewise required no screening of its preexisting parking lot, no new down-facing lighting, and no hard landscaping. Both properties also have access to modern water and sewer infrastructure under WASAD. ■ These differences in treatment also suggest the City's actions or inactions are meant to burden the Applicant, are arbitrary and capricious, and stem from improper motives.33 B.) Procedural Due Process (i) Public Officer Law ■ Public Officer Law, Article 7, otherwise known as the"Open Meetings Law," requires local governments examine their processes to determine whether the public is actually, or even perceptually, being unduly excluded.34 Planning Boards are subject to the law, and characterizing meetings as "work sessions," or using similar language, does not relieve the public body from compliance with its requirements.35 "Minutes must be prepared at gatherings in which motions,proposals, resolutions, and the like are introduced or adopted."36 The planning board has the "same obligation to prepare minutes relative to work sessions as it has with respect to regular or official meetings; consequently, if activities occur at meetings in question that would require creation of minutes, minutes must be prepared and made available within 2 weeks of such meetings." 37 ■ In July 2020 the Applicant attended a"workshop" session. At that session, the Board decided not to waive site plan review, and have the 33 BowerAssocs. v. Town ofPleasant T�alley, 2 N.Y.3d 617,631, 814 N.E2d 410,781 N.Y.S2d 240(2004) ("What matters is impermissible motive:proof of action with intent to injure—that is,proof that the applicant was singled out with an evil eye and an unequal hand,so as practically to make unjust and illegal discrimination between persons in similar circumstances"). 34 New York Department of State,Division of Local Government Services,CoNnucrirrG PuBLic MEErirrGs aNn PUBLIC HEARINGS,JAMES A.COON LOCAL GOVERNMENT TECHNICAL SERIES(2008�1t p1g0 1. 3s Id. at 2. �6Id. Comm on Open Godt OML-AO-1196. 37 See N.Y.PuB.OFF.Law§ 106(Consol.2021)citing Comm on Open Godt OML-AO-1459. City of Saratoga Springs Planning Board June 21, 2021 Page 25 of 28 Applicant pay for and submit a site plan application, and refused the Applicant a special use permit until any application was submitted. This motion or proposal was subject to the Open Meetings Law requirements, but no minutes were prepared. ■ Further, while a public body is not required to permit members of the public to speak or participate at hearings, if the public body chooses to permit public participation, it should do so based upon reasonable rules that treat all members of the public equally. 38 ■ At the April 22, 2021,public hearing,the Applicant's microphone was muted, and a member of the public, William DiCenzo Sr., an elderly Vietnam Veteran, waited over four hours to be heard, had his hand raised, but was denied an equal opportunity to express his views. C.)Civil Rights ■ Section 1983 of the federal Civil Rights Act of 1871 provides: Every person who, under color of any statute, ordinance, regulation, custom or usage, of any Staxe ..., subjects, or causes to be subjected, any citizen of the United States or other person within the jurisdiction thereof to the deprivation of any rights,privileges or immunities secured by the Constitution and laws, shall be liable to the party injured in an action at law, suit in equity, or other proper proceeding for redress. ■ Owners of property inherently have a property interest in their land, and the right of use is one within the bundle of properry rights attendant to ownership under the laws of property in all states.39 The constitution assures the property owner the right to use their property free from arbitrary or irrational zoning measures." 40 This guarantee is intended to secure the individual from the arbitrary exercise of the powers of government.41 ■ As one court put it: "The terms arbitrary and capricious mean willful and unreasoning action without consideration of or in disregard of the facts ... The jurisdiction of an administrative board or agency consists 38 Id. Comm on Open Godt OML-AO-923 &3292. 39 See generally,Polenz v. Parrott, 883 F2d 551 (7�'Cir. 1989). 4o Brady v. Colchester 863 F2d 205,215 (2nd Cir. 1988). 41 Bello v. Walker 840 F2d ll24, 1128(3d Cir. 1988). City of Saratoga Springs Planning Board June 21, 2021 Page 26 of 28 of the powers granted it by statute and a determination is void where it is made either without statutory power or in excess thereo£ In such a case there is nothing to be reviewed, the determination being a nullity. It is illegal for an administrative agency to reach a conclusion not permitted by the statute but it is arbitrary and capricious if it merely fails to give due weight to the evidence."42 ■ Where an applicant has met the standards imposed by an ordinance, the board is obligated to issue a special use permit; the task being ministerial and a duty. "A special use permit is not a variance, as it does not involve varying the restrictions otherwise imposed by a zoning ordinance but, rather, involves adherence to a zoning ordinance."43 ■ Lastly, nonconforming structures, "in existence when a zoning ordinance is enacted, are, as a general rule, constitutionally protected and will be permitted to continue notwithstanding the contrary provisions of the ordinance."44 ■ 254 Washington Street was constructed for used car sales and auto repairs at least 42 years before the enactment of the current Ordinance. It makes up part of a commercial strip of highway, which only recently, has come to serve the residential needs of the community. The fact that the City lost the records for this site does not alter the fact this site is preexisting, as are most of the sites comprising WASAD and the T-5 District. It was not built with residential use in mind, there are no preexisting pedestrian accommodations, there are no neighbors, and there is not even water or sewer or a�re hydrant nearby. It is hardly fair to suggest this site is part of a neighborhood center after it was excluded from WASAD.4s 4z Elwood Investors Co. v. Behme, 79 Misc.2d 910,913,361 N.Y.S2d 488 (Sup. Ct. Special Term,Suffolk Co. 1974). 43 See Matter of c%Hamptons,LLC v. Rickenbach, 98 A.D.3d 736,737,950 N.Y.S2d 182(2d Dept.2012); McDonald v. Ogdensburg Zoning Bd. ofAppeals, 101 A.D2d 900,475 N.Y.S2d 169(3d Dept. 1984); Cove Pizza, Inc. v.Hirshon, 61 A.D2d 210,401 N.Y.S2d 838(2d Dept. 1978);KinderFcn^m BreedingAssociates v. Walker 54 A.D2d 811,388 N.Y.S2d 43 (3d Dept. 1976);Highland Brooks Apts.,Inc. v. White, 40 A.D2d 178,338 N.Y.S2d 709(4�'Dept. 1972). 44 Glacial Aggregates LLC v. Town of Yorkshire, 14 N.Y.3d 127, 135,924 N.E2d 785, 897 N.Y.S2d 677(2010); People v. Miller, 304 N.Y. 105, 107, 106 N.E2d 34(1952). 4s See Exhibit S,"Intrada Saratoga Special Use Permit:Neighborhood Analysis dated June 22,2017 (The neighborhood analysis excluded this site). City of Saratoga Springs Planning Board June 21, 2021 Page 27 of 28 ■ On more than one occasion the Applicant was informed it was "wasting this Board's time and its time,"unless it was proposing a build-out onto the highway for the public's bene�t. The actions of this Board are not only beyond its authority and irrational but are abusive. The matter is not even fairly debatable. ■ The Applicant has a"vested"property right in its site the way it is and a legitimate claim of entitlement to its use and also its inclusion under WASAD. The history of disparate treatment and continued harassment demonstrates a pattern of ill-will that crosses inter-city departments, generations, and stretches even to the county level. ■ It shocks the conscience and exhibits a deliberate indifference to the constitutional rights of this Applicant and others like him. There is a customary practice or de facto policy to illegally compel private property owners within the City and Saratoga County to make off-site public improvements that either are beyond its authority, constitute an illegal tax, or bear no substantial nexus to the action proposed. ■ The funding and construction of pedestrian improvements to the highway are subject to the strict application of Highway Law § 54, which requires the County to pay for said improvements and, "Thirty- five per centum of the cost of such work shall be reimbursed to the county by the town requesting the improvement, and a tax therefor may be levied upon the taxable property of the town, or the amount to be raised by either the county or the town may be provided pursuant to the local finance law. Any moneys so raised by the town shall be paid into the county treasury."46 ■ The Applicant is already providing to the public a dedicated EV charger and parking space, which is reflected in the updated site plan. 46 HiGx§54. City Uf Sarato�a Sprin�s Flannin� Baarc� �une 2@, 2021 F'a�e 28 of 28 C[]N+CLCTSIQN The Appli�ant paid for and iinder�s�ent reUiew befc�re the City Arellitectural Review f3oard Ec� make ca�meEic t�pgrades to ti�e existing building. After disco�ering there were no recc�rcf�f�r the huilding,fihe uses w�ere not properly recortfed, and t�ere uras na rati�nal hasis for exclusion fron� WA51�D,the A�plicant l�rau�ht these rr�atters to the attention af the proper authorities. After receiWing no aeknowledgment,the Applicant paid f�r and submitted an Applieatinn for a Sp�eciai Use Permit so the uses cor�ld be cstahlishcd. It als� snught tes renn�ate one aff ce int+o three uf�ces and a cc�nferent;e room, �dci a rriail6ox, resurface the parking int and define it throu�h line stri�ing, and enhance the curh appeal with new landscapin�, all ta increase the r�iahility and the commercial appeal of the site. �After the A�plicant was infc�rrned dn pay f�r aiid submit a site pCan applicatic�n, it submitted a site plan tr�reflect the site, its usage, and the improvements made. This letter is nat meant anly t�address ycaur cQncerns, but ta g�ve yQu "fair-warn�n�''that your past and current conduct, cus�ams, and pra�tices,tread dangerously clase if not on the Appli�ant's ei�il rights, are abusive, and if cantir�ued, tlte Appli�ant will not hesitate ta seek to enfnrce tl�ose rights again�t all bad f'aith actars both individually and in fheir official capacities, and against the municFpality and the caunty. You are hereby duly warned your actions are illegal and infringe upon the �ppli�ant's cor�stitutianally protected property right�. Very truly yaurs, �� . � William R. DiCenza Esq.