Here's the text of the letter, converted from .pdf. I have not compared the files.
The Town of East Greenbush Zoning Board of Appeals (ZBA) has been asked to interpret the Comprehensive Zoning Law of the Town of East Greenbush (Zoning Law). Specifically, as it
applies to the PDD Application of Capital View Casino and Resort.
This referral
requires the ZBA to interpret
the Zoning Law.
In rendering its determination, it is imperative to note that
the clear and unambiguous language of the Zoning Law must be given its full effect.
The resort amenities
offered by Capital View Casino are all prohibited uses under zoning
It is
undisputed that the proposed Capital
View Casino and Resort is located within the existing Residential Buffer (R-B) zoning district. The intended
purpose of the
Residential Buffer Zone is to support low-density agricultural , residential, and
rural uses through
preserving these areas as open
space with low
impact uses. See section 2.6.3 of the
Comprehensive Zoning Law of the Town of East Greenbush. The
allowed uses detailed
in this section
are specific, unambiguous,
Chairman Pangburn September 23, 2014
Page 2 of
5
and clearly delineated. Those uses not delineated in section 2.6.3 of the Zoning Law are therefore prohibited in this zone.
The Zoning
Law is rooted in the duly adopted
comprehensive plan. In 2006, The Town of East Greenbush adopted
the Town of East Greenbush: Land Use Plan Update and Zoning Study (Comprehensive Plan). The Comprehensive Plan describes this area as "Rural East Greenbush" due to the primarily rural, scenic landscape character with low density people
and housing.
See Comprehensive Plan iJ23. Further, the Comprehensive plan goes on to state the importance of the historic rural landscape is to the community. Id. The recommendations of Comprehensive Plan are equally clear in that the Town needs to be protective of the rural character of the area. Comprehensive Plan iJ26.
The related amenities identified by Capital View Casino includes, but is not limited to a 100 room hotel, multi-level parking
structure, dining areas, bars/night clubs, retail spaces, event rooms, spas, health
clubs, and support facilities all of which are prohibited uses in this zone. See section 2.6.3 of
the Zoning Law of the Town of East Greenbush.
One of the basic principles of statutory
construction is "that where a law expressly describes a particular act, thing or person to which it
shall apply, an irrefutable inferenc
must be drawn that what is omitted or not included
was intended to be omitted or excluded." See McKinney's Cons. Laws of NY, Vol
I , §240.
The Comprehensive Plan provides very specific direction in the intent for the future development of this area. The Zoning Law in furtherance of the Comprehensive Plan lists in no
uncertain terms those particular uses that are permitted
in the R-B zone. The allowed uses inthis
zone are clearly limited to low intensity
residential uses,
period. To permit an extensive commercial development in a residential zone is blatantly prohibited by the Zoning Law and will be challenged in court.
Planned Development Districts do not authorize
the expansion of allowed uses
Section 2.9 of the Zoning Law provides for the use and regulation
of
Planned Development Districts in the Town. Capital View Casino is attempting to circumvent the use restrictions contained
in the R-B Zone. Their interpretation is contrary to the specific language contained in the Zoning Law.
In primarily
residential districts, the allowed uses are limited to those residential uses as authorized in the underlying zone. See Zoning Law section 2.9.4.D.01. Nowhere in this section is there a grant of authority for the Town Board to adopt PDD legislation that would introduce hotels, bars/nightclubs, retail
spaces, or the myriad of other
intense commercial uses proposed
in the Application.
Section 2.9
of the Zoning
is contains very
specific limitations on the permitted uses in the PD Districts . The PD Section
of the Zoning Law is equally clear in furtherance of the allowed uses
Chairman Pangburn September 23, 2014
Page 3 of 5
within the various residential versus commercial zones. Another principle of statutory construction is "where words of a statute are free from
ambiguity and express
plainly,.clearly and distinctly the legislative intent, resort may not be had to other means of interpretation." See McKinney 's Cons. Laws
of NY, Vol 1, §76. When examining statutes and
particularly local laws, courts will not "thwart[ing] the intent
of the legislative body as expressed." Westchester Cnty. Soc. for Prevention of Cruelty to Animals
v. Mengel,
292 N.Y. 121, 126, 54 N.E.2d
329, 331
(1944).
PD
Districts in residential
zones are restricted to residential uses. The Capital
View Casino application references how Zoning Law section 2.9.4.D.Ol(c) restating that "limited commercial" uses are permissible. What the Capital
View Casino neglected to do was include the remainder of the sentence
which states that limited commercial development must be "scaled to primarily serve the residents
of
the PD and which are in keeping with the scale and, size and traffic of neighborhood and its structures." Zoning Law section
2.9.4.D.Ol(c) (emphasis added).
Inexcusably the Capital View Casino neglects the crucial component of the sentence
mainly the limited commercial
use must primarily
serve the residents
of the PD. Here, there are no residents of the PD as there is no residential component, which by definition is not allowed.
This is an intensive commercial use that is specifically prohibited by the Zoning Law.
Additionally, Capital View Casino attempts to
rely on
the NYS Upstate New York Gaming Economic Development Act of
2013 (the "Gaming Law"),
as justification for
rendering a determination contrary to the explicit language of the law. Please note,
the Gaming Law
has no impact on the local
zoning regulations concerning the various resort amenities being offered by Capital View
Casino. Section 1366 of the Gaming Law only deems the casino as
an approved activity under the
relevant zoning ordinance, not the appurtenant amenities. The
Gaming Commission has ratified this opinion in their
question and
answers submitted to help guide applicants wherein
it specifically states that § 1366 of
the Gaming Law "does
not preempt
local zoning and land use regulations as to non-gaming activities and
permitted uses
of a proposed gaming facility." See response
A.327,Applicant Conference Questions and
Answers -May 2, 2014, copy attached.
The Capital View Casino's
tortured reading of the Zoning Law does not magically alter the nature of their intended use.
The R-B zone is limited
to residential uses. Furthermore, where an applicant wishes to utilizes
a PDD in this zone, the allowed uses remain residential. There is no justification in law or reason that would result in a different conclusion.
The resort amenities
are subject to zoning
In order to have the ZBA agree with the interpretation offered by Capital View Casino, it would ultimately require the ZBA to not only interpret State Law, but to find that the entire casino resort is exempt from zoning. The Zoning Board of Appeals'
authority is limited to interpreting
provisions of the Zoning Law. See Zoning Law section 4.2.2.A.01 . While the gaming may be a permitted use pursuant to
the Gaming Law, nothing else relating to the project is
exempt from zoning. The Gaming Law draws this important distinction between
the
casino and the resort
Chairman Pangburn
September 23, 2014
Page 4 of 5
amemties. Capital View Casino argument relating to permissible uses would require the ZBA to not only interpret
the Gaming Law, which is impermissible in its own right, but to find that the Gaming Law supersedes the Zoning
Law.
In
response to the Capital View Casino's argument,
the question
before the ZBA is not whether the
casino itself is
an approved use, it is the resort
amenities the
hotel, the restaurants, the bars, the
retail, the storage, the
parking, etc. that make up the entire
resort. As
referenced earlier, "gaming authorized at
a location pursuant to
this article shall be
deemed an
approved activity for such location under the relevant
city, county,
town, or village land use or zoning ordinances, rules, or regulations." N.Y. Rae. Pari-Mut.
Wag. &
Breed. Law § 1366. This designation does not extend to the ancillary resort uses that may be associated with
a particular project.
This interpretation was recently affirmed by the Court of Appeals by referencing the impact of this section and
how it clearly preempts home rule zoning
powers as it relates
to casinos
only. See
Wallach v. Dryden, ---N.E.3d --- ,
2014 N.Y. Slip Op.
04875, 7-8 (2014).
New
York is a home rule state whereby local governments retain all powers to act where not expressly preempted by the legislature.
See N.Y. Const. art. IX, § 2;
see also N.Y. Mun. Home Rule Law § 10.This too has been consistently upheld by the Court of Appeals, in holding that "legislation of State import does not impinge upon municipal
home rule simply because it touches the matter[s]."
Uniformed Firefighters Ass'n v. City of New York, 50 N.Y.2d
85, 90, 405 N.E.2d 679, 680 (1980). The Courts do not, and will not, broadly
interpret a State Law to the exclusion
of local regulation.
This is analogous to the manner
in which mining is regulated in the State through the Mines Land Reclamation Law, whereby only the actual mining operation is preempted zoning regulations. The interpretation that is being offered by Capital View Casino was similarly argued by mining operators.
The Court of Appeals responded
in the seminal case on the manner that to find for the developer
would "drastically curtail the town's power to adopt zoning regulations" and further it would preclude
the
Town
from limiting what other uses should be permissible in a particular zoning district (see, 1
Anderson, NY Zoning Law and Practice, §§ 2.04, 2.05, 2.06, 2.09, 2.13
[3d ed]; see generally, Wambat Realty Coro. v State of New York, 41 NY2d 490). See
also Wallach v. Dryden, ---N.E.3d --- , 2014 N.Y. Slip Op.
04875, 7-8 (2014). The Court of Appeals goes on to
hold that "the
statutes may
be harmonized, thus avoiding any
abridgement of the
town's powers to regulate land use through zoning
powers expressly delegated in the Statute of Local Governments § 10 (6) and Town Law § 261 (see, McKinney' s
Cons
Laws
of NY, Book 1,
Statutes §§ 370, 391,
398). Frew Run Gravel Products. Inc.v. Town of Carroll, 71 N.Y.2d 126, 134, 518 N.E.2d 920 (1987). The interpretation being requested by Capital View Casino would be in direct conflict with the well settled legal principles of statutory construction and preemption.
This
is an
important distinction as the Gaming Law was designed to encourage destination resort facilities. All regions are different,
all proposals are different. The Howe Caverns gaming application contains waterparks and golf courses, similar to many
of the proposals in Region 1. The interpretation argued by Capital View would mean
that all of the waterparks, golf
courses, restaurants, retail shopping, and any other amenity offered by an applicant would be exempt
Chairman Pangburn
September 23, 2014
Page 5 of S
from local zoning. This is clearly contrary
to the Gaming Law and outside the scope of the ZBA' s limited review.
Any proposed resort amenity
and all design details are subject to local zoning. As stated previously, the proposed
amenities are prohibited under the current
zoning and section 1366 of the Gaming
Law does not and cannot alter this interpretation. The
only way correct this would be for the
Town Board to legislatively amend the Zoning Law.
The ZBA has no authority to amend the zoning through
interpretation.
Re-writing the Zoning Law will have far reaching effects
The ZBA should tread wearily when considering the Capital View Casino's interpretation of the Zoning Law as it will have far reaching
effects. Zoning
interpretations, such as the one being offered by the Capital View Casino, are not project
specific. Permitting intensive
commercial uses within residential districts through PDD legislation would provide all future property
owners in the Town's residential zoning districts with the same rights.
No longer
would the residential districts be limited to the enumerated allowed uses that are in keeping the residential zones predominantly residential. Any future developer
would simply need to apply for a PDD
and they would be able to propose any commercial use in the residentfal zones. The
net effect would be to delete section 2.9.4.D.01 from the
Zoning Law entirely. It would forever enable town-wide commercial development.
Conclusion
In closing,
the courts have been very consistent when reviewing similar cases
where an applicant convinces a municipal board to expand upon the specific language of a zoning law. Enclosed with this letter is a copy of a case arising out of Washington County Supreme Court, where the municipality attempted to permit a soccer camp that was plainly contrary to the local zoning law, similar to what is before the ZBA. In overturning the Zoning Board of Appeals decision,
the court examined the express terms of the zoning law, and denied the "unfounded extrapolation of the ordinance" stating inclosing that the authority to amend the zoning law must be legislative and not ajudicial
determination.
We urge the ZBA to thoroughly consider this matter and come to the inescapable conclusion that only residential uses are permitted
in residential zones. We the ZBA to interpret
the Zoning Law based on the clear, unambiguous language
contained therein that limits
the allowed uses in the Residential Buffer
Zone to low-density agricultural, residential, and rural uses designed
to preserve these areas as open space through low impact uses.
Very truly yours,
Jeffrey R. Meyer, Esq. jmeyer@meyerfuller. com
