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HomeMy WebLinkAbout20260091 Lexington Rd & Bemis Heights Rd Subdivision Modification Public Comment (23)Public Comment Regarding Long -Term Maintenance, HOA Enforcement, City Risk, and Article 14 Subdivision Standards Lexington Road / Bemis Heights Subdivision Dear Chair and Members of the Planning Board, I am submitting this comment regarding the proposed Lexington Road / Bemis Heights subdivision and my concerns about long-term maintenance, HOA enforcement, City risk, and the subdivision standards in Article 14 of the City's Unified Development Ordinance. My central concern is that the Planning Board should not approve a modified subdivision that may place the City in the middle of future litigation and conflict when the proposed documents do not appear to create a clear, mandatory, funded, and enforceable long-term maintenance mechanism. This concern directly relates to Article 14 of the UDO. Article 14 states that the purpose of the City's subdivision regulations includes protecting the public health, safety, and welfare; securing safety from fire, flood, and other danger; protecting environmentally critical areas; minimizing conflicts among uses of land and buildings; preventing pollution of streams and ponds; assuring the adequacy of drainage facilities; safeguarding the water table; and encouraging the wise use and management of natural resources. Article 14 also states that land to be subdivided must be of such character that it can be used safely for building purposes without danger to health or peril from fire, flood, or other menace; that proper provision must be made for drainage and other needed public improvements; and that all development must facilitate adequate fire protection and provide access for firefighting equipment. These are not abstract standards. They are the exact issues raised by this application: fire access, wetlands, flooding, drainage, beaver -related hydrology, streambank erosion, long-term maintenance, environmental restrictions, HOA enforcement, and foreseeable conflicts with neighboring properties and the broader community. A new approval would place the City in a different position than the prior approval. The City previously approved development on this property at a time when the plans apparently contemplated filling the wetlands. Under that prior plan, the same long-term wetland maintenance issues, flooding concerns, beaver activity, protected wetland conflicts, and enforcement problems would not have existed in the same way. This is not a case where the property was never allowed to be developed. The City already approved use of the land. The approved Phase 3 was simply not built before the legal, environmental, and regulatory circumstances changed. That prior approval should not require the City to approve a modified subdivision now that creates new fire access, wetland maintenance, HOA enforcement, and litigation risks. Today, the circumstances are different. The wetlands are protected, the property remains predominantly wetland, and the applicant is asking the City to approve development around a dynamic natural system that will require long-term maintenance. A new approval would not merely continue an old approval. It would place the City in a new position, with knowledge of current wetland conditions, current maintenance concerns, and foreseeable future conflict. These conflicting long-term issues do not exist in the same way under current conditions. The wetlands, stream corridor, beaver activity, drainage patterns, and surrounding properties already exist. What does not currently exist is the proposed introduction of 13 residential lots, homes, yards, stormwater infrastructure, fencing, signage, conservation restrictions, HOA obligations, residential ownership, and long-term maintenance responsibilities into and around that wetland system. The Planning Board should not treat the resulting conflicts as unavoidable existing conditions. They are consequences of the proposed approval and should be resolved before approval is granted. The applicant has now put forward an HOA structure, easement agreement, declaration, by-laws, and maintenance agreement. Therefore, the issue is not whether the applicant personally intends to maintain the property. The issue is whether the proposed documents create a reliable long- term maintenance and enforcement system. In my opinion, they do not. Deed restrictions, easements, an HOA, and a maintenance agreement are not the same thing as enforcement. Paper obligations do not maintain wetlands, remove obstructions, manage beaver activity, prevent flooding, correct erosion, stabilize streambanks, maintain drainage, or protect neighboring properties. If enforcement depends on an injured neighbor, BOCES, a future resident, the HOA, the City, or another agency bringing a lawsuit or discretionary enforcement action after harm occurs, then litigation or discretionary enforcement is the real enforcement mechanism. The proposed HOA also creates a structural conflict. HOAs generally function to maintain common property or amenities for the direct benefit of their members. Here, the proposed HOA would collect money from future residents to protect wetlands, streams, drainage conditions, neighboring properties, BOCES, and the broader community from foreseeable impacts associated with the subdivision. That is a very different role. Future HOA members may not have a direct incentive to spend money, impose restrictions, manage beaver activity, correct erosion, stabilize streambanks, or take enforcement action for the benefit of surrounding properties or the public. Over time, they may have an incentive to reduce dues, defer maintenance, avoid enforcement, or allow the HOA to deteriorate until it no longer functions as an effective protection mechanism. The proposed documents do not eliminate this concern. They create assessment authority, inspection provisions, easement rights, and enforcement rights, but those provisions still depend on someone identifying the problem, funding the response, taking action, and enforcing compliance. The City and other agencies appear to receive access and enforcement rights, but not mandatory obligations to act. A discretionary right to inspect or enforce is not the same thing as a guaranteed long-term maintenance and enforcement system. Potential future NYSDEC involvement is not a reliable substitute for a project -specific maintenance and enforcement mechanism in the approval record. NYSDEC may have authority where applicable, but it is not the ongoing monitor, manager, or maintenance enforcer for this subdivision. The Planning Board should not approve this application based on the assumption that NYSDEC will identify, inspect, access the property, require corrective action, or resolve future wetland, stream, drainage, beaver, erosion, or flooding issues as they arise. The Maintenance Agreement also appears limited in scope. It addresses stormwater water quality basins, not the full range of long-term wetland, stream, beaver, erosion, hydrology, no -cut buffer, conservation -area, fencing, signage, drainage, and enforcement issues raised by this project. The record should also clarify an apparent inconsistency between documents: the Declaration refers to three stormwater quality basins, while the Maintenance Agreement refers to two stormwater water quality basins on Lots 2 and 13. The problem is already visible. The applicant was apparently unaware of beaver activity on his own property that was contributing to flooding on BOCES property until a concerned citizen brought the issue to the Planning Board's attention. If this type of issue was not meaningfully identified and addressed while approval is pending, what will ensure responsible maintenance after approval is granted and responsibility shifts to future owners or an HOA? Recent site conditions further illustrate the problem. Since the beaver activity was brought to the Board's attention, a beaver dam has reportedly been removed, and photographs appear to show excavation or disturbance in or near the stream bed and banks, exposed soil, severe erosion, sediment movement, drainage changes, and possible impacts to wetland hydrology. These conditions go directly to the reliability of the environmental review and the enforceability of any future restrictions. Before treating these issues as resolved, the Board should require written clarification from the appropriate agencies. At minimum, the record should clarify whether the beaver dam removal, stream bed and bank disturbance, erosion, sediment movement, drainage changes, and possible wetland hydrology impacts require NYSDEC or USACE review, authorization, stabilization, remediation, or enforcement action. These issues directly relate to the Article 14 standards for subdivision review. If the proposed subdivision does not adequately secure safety from fire, flood, or other danger; does not protect environmentally critical areas; does not assure adequate drainage; does not safeguard streams, ponds, wetlands, and the water table; does not minimize conflicts among uses of land and buildings; or does not provide a reliable long-term maintenance and enforcement mechanism necessary to address those risks, then the application is not consistent with the purpose and objectives of Article 14. Article 14 also requires any grounds for denial of a final plat to be stated in the Planning Board's notice of determination and related to the purpose statement of Article 14. Therefore, if the Board finds that these issues remain unresolved, the Board has a clear subdivision -law basis to deny the application. The reasons for denial would not be general opposition to development. They would be directly tied to Article 14's stated purposes and objectives. The issue is not simply that current and future property owners may have to enforce their rights through litigation. That may already be true under current conditions. The issue is that Planning Board approval could place the City in the middle of future litigation and conflict. Without approval, the City has not affirmatively approved a new subdivision with known unresolved maintenance concerns. With approval, the City may be creating or intensifying the very conditions that later give rise to claims, disputes, and litigation. Because this property is predominantly wetlands, and wetlands are dynamic by nature, the maintenance concern is not static. Water levels, drainage patterns, vegetation, wildlife activity, erosion, sediment movement, and flooding conditions can change over time. As development increases around the wetlands, conflicts over maintenance, flooding, drainage, and property impacts become more foreseeable. This concern is even more significant because the wetland system extends beyond a single parcel. The connected wetland and hydrologic system is larger than the mapped portion shown in the application materials, and limiting review to one parcel may understate the full environmental and enforcement context. Land use decisions can last for generations. Decisions made by the City 100 years ago, in 1926, are still affecting Saratoga Springs today. The Planning Board should consider whether this approval could create another long-term problem that future residents and future City officials will be forced to manage. Before any approval is granted, the Planning Board should make a clear record identifying the long-term maintenance obligations, the responsible party, the inspection process, the funding source, the professional oversight requirements, and the enforcement mechanism. At minimum, the Board should be able to answer the following questions: Who is responsible for inspecting, maintaining, and correcting problems after approval? What maintenance is required, and how often must it be performed? Who determines whether maintenance is adequate? Who pays for it? What happens if the HOA is underfunded or fails to act? Who enforces the restrictions? What happens if the responsible party refuses? What happens if the City of another agency has the right, but not the obligation, to enforce? Is there a reliable, project -specific, long-term mechanism to manage multiple future and sometimes conflicting risks, and to ensure compliance with obligations that would be created, intensified, or left unresolved by approving this application, including but not limited to wetland protection, drainage, flooding, beaver activity, streambank stability, erosion control, no -cut restrictions, fencing, signage, neighboring -property impacts, public -resource protection, and emergency access? If the Board cannot answer those questions, then the maintenance plan is not adequate. For these reasons, I do not believe the Planning Board should rely on the currently proposed HOA documents, deed restrictions, easements, or maintenance agreement as substitutes for an enforceable maintenance mechanism. If the only realistic mechanism for long-term maintenance enforcement is litigation or discretionary enforcement after harm occurs, then approval may place the City in the middle of the very litigation and conflict it should be trying to avoid. The Planning Board should require these maintenance, enforcement, agency -review, City -risk, and Article 14 issues to be resolved before any approval is granted. This is not just a future maintenance concern. It is a present subdivision -approval issue. Respectfully submitted, Maryrose Behan 30 Lexington Road Saratoga Springs, NY 12866 mrbehan@gmail.com