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2018.11.11 R. Schlank CommentsROSEMARY A. SCHLANK 9 Bayberry Lane Rye Brook, NY 10573 (914) 939-9273 RSchlank@ix.netcom.com November 11, 2018 Mayor Rosenberg and Honorable Members of the Village Board of Trustees Village of Rye Brook Offices 938 King Street Rye Brook, NY 10573 Dear Mayor Rosenberg and Trustees, Re: SEQR Hearing for 900 King Street–Community Character and Zoning Issues I am writing to express my concerns about the proposed construction of a massive senior living facility in an area adjacent to an already densely-populated residential development. The proposal would have a significant adverse impact on the character of our community, and it is unfair to citizens and taxpayers who have relied on the zoning laws to provide a more balanced and complementary mix of land uses that would prevent this sort of thing. Since one of the purposes of the SEQR process is to compile objective factual support for our concerns and conclusions, this letter focuses on the issues related to community character, including the zoning issues. As discussed in an email exchange with Counsel to the Planning Board, the letter also provides copies of supporting records from my files in hopes this historical perspective will be helpful to the applicant and the Board. Part I: Overall comments and questions for the applicant My overall comments and questions for the applicant are summarized below. 1. A key concern regarding the facility is that it would be so inconsistent with the character of the community that this would amount to a “fatal flaw.” Under the State Environmental Quality Review Act (SEQRA), an inconsistency with community character is sufficient cause to reject a proposed project. For this project, there are two main reasons why the proposed senior housing facility would not fit in with its surroundings: (1) the facility would concentrate too many people in one area, and (2) the architectural style would give the area a more populous, citified effect than the comfortable suburban surroundings in the rest of the Village. By their nature, determinations of consistency with community character are inherently difficult to quantify, and I am at a bit of a disadvantage because I have no formal training in architectural style. Fortunately, though, there are objective standards and benchmarks that can be applied for this purpose. Most notably, as stated in the Rosemary Schlank 900 King Street, page 2 SEQR Handbook, the courts have supported reliance on zoning regulations as expressions of the community’s desired future state or character. [Note 1.] Question: The DEIS indicates the applicant feels the proposed facility is consistent with the character of the community. What factual support does the applicant have for this conclusion in terms of: (a) zoning laws of either the Village of Rye Brook or the Town of Rye, (b) past precedents involving either the Village or the Town, or (c) court decisions in which similar shifts in population and architectural style were not seen as inconsistent with community character? 2. An accompanying concern is that the zoning laws should have blocked the proposal, and the failure of this safeguard should be addressed and fixed. A fundamental concern is that the applicant should not be permitted to avoid its obligations under the Town of Rye regulations by submitting proposed zoning amendments to the Village without the consent of the other owners in the PUD. - How did the safeguard fail? The Village’s consultants have said that demolition of the office building would trigger a requirement to comply with the specifications of the Village zoning code. But this does not mean the applicant can completely ignore the provisions of the original Town of Rye resolution governing this site. That would defeat the whole purpose of a planned unit development (PUD) and the laws that were put in place to provide the property owners with a sense of certainty about the permitted use of adjacent property. A strict application of the zoning laws of the Village and the Town would have prevented the 900 King Street proposal from ever being considered. - Why did the safeguard fail? It seems clear that this safeguard did not function as intended. One possible reason may have been a lack of clarity in the standards and laws that apply to the Arbors/900 King Street PUD. My October 8th letter urges the Planning Board to recommend whatever revisions are needed in this regard. Another possible reason is that the SEQR process somehow encouraged the applicant to try to rewrite the laws, rather than comply with them. Comments made at the Oct. 11, 2018 Planning Board meeting indicate the applicant may have selected this approach based on an analogy to the supplemental Code section added in 2013 for the Arbors portion of the PUD. Questions: The DEIS lists seven proposed zoning amendments in Appendix A-3 that are apparently needed to address the variances that would result from the project. An analysis of the Town of Rye regulations may identify additional variances. To simplify the zoning issues for the general public, could the applicant please prepare a tabular analysis showing each of the seven items with a “yes” or “no” answer to each of the following questions: Does the proposed wording represent a variance from: (a) the original Town of Rye zoning code that applies to this PUD, and (b) the current general laws that apply to all PUDs in Rye Brook? If any additional variances are identified, please add them to the tabular analysis. Then, for each “yes” answer, please provide a comparison of the wording of the Rosemary Schlank 900 King Street, page 3 proposed amendment with the wording of the current and original Code sections and explain why the applicant feels the requested variance is appropriate. 3. There are also concerns about whether the site-specific Code section proposed in the DEIS follows the precedent set for the Arbors Code section. The nature of the applicant’s proposed zoning amendments appears to differ markedly from the nature of the matters addressed in the site-specific Arbors Code. The Arbors section did not attempt to re-purpose the residential development or to change the permitted land uses within the PUD. Its purpose was simply to streamline the Village’s review procedures for certain matters, such as storm-water management and reviews by the Architectural Review Board. [VRB Planning Board Recommendations, February 14, 2013.] The use of the same approach does not seem appropriate for changes that are significantly out of sync with the applicable laws or for changes that might have a significant adverse effect on community character. Questions: For each of the proposed zoning amendments, which ones does the applicant believe are similar in nature to the ones in the Arbors site-specific section? Which ones are fundamentally different in that the changes would create a significant variance from the laws that apply to other PUDs in the Village as reflected in the answers to the questions in number 2 above? 4. Longer-term, it might be prudent for the Village to develop a new approach for ALL site-specific Code sections related to PUDs. To be fair to other property owners in the Village, the fact that a piece of land is located in a PUD district should not give the PUD’s property owners a license to write their own laws for their own self-serving purposes. All site-specific regulations should be thoroughly vetted, and the approach taken by the Village should be tailored to the nature of the proposed zoning amendments. I urge the Village Board to reconsider its approach to ALL site- specific-sections of the Code. A new approach should include designation of an approval body for site-specific Code additions related to PUDs, establishment of guidelines for the types of matters that may be addressed in these sections, and establishment of a diligent review process for any new Code additions of this type. Just as important, if the primary goal of this Code section is to streamline review procedures, then the process should also include periodic after-the-fact reviews of existing regulations to be sure they are functioning as intended. Question: Does the applicant agree that the purpose of its proposed amendments is to streamline the review process? If not, what is the objective? Would the applicant object to periodic after-the-fact reviews of its proposed site- specific zoning amendments? If so, which ones and why? In the applicant’s view, what would be a suitable time period for such reviews, (e.g., every three years or every five years)? Rosemary Schlank 900 King Street, page 4 5. Shorter-term, for purposes of vetting the site-specific zoning issues in the DEIS, the applicant should include the Town’s benchmarks and precedents. As Chapter 3 points out, the 900 King Street site is part of a larger PUD that was established by the Town of Rye prior to the incorporation of the Village of Rye Brook. This was the first PUD ever created in the Town of Rye. As such, the entire PUD has already been subjected to prolonged and intensive reviews that took into account the PUD’s proximity to King Street and the school grounds, as well as the densely- populated townhouses of the Arbors. Some but not all of the records establishing the PUD are available today. These records provide policies, facts, and even quantitative benchmarks that can be incorporated in the FEIS and relied upon under SEQRA. Question: Rather than referencing the Town’s records and facts, Chapter 3 uses the phrase in the “Applicant’s opinion” at least 20 times, and the discussion in the DEIS seems to avoid taking into account the PUD-specific decisions made by the Town of Rye. To make this section easier for the general public to understand, could the applicant please include in the FEIS all known and relevant terms, conditions, provisions, benchmarks and precedents reflected in the Town’s PUD regulations and site-specific approvals? The documents in Attachment B may be helpful for this purpose. At a minimum, I request that the precedents and benchmarks discussed in bullet points 6 to 8 below be addressed in response to this letter and in the FEIS. 6. Permitted uses: The Town required a “mixed-use” PUD with no more than 250 dwellings on 60 acres; 550 dwellings on 60 acres was ruled excessive. There was one developer for the entire 60-acre Arbors/900 King Street/Harkness Park PUD, Lester M. Entin Associates. Entin managed the project through a joint venture with TBS Enterprises. From the very beginning of its discussions and negotiations with Entin, the Town decided: (a) it would permit only a low-density, mixed-use (part-residential, part-commercial) PUD with no more than 250 dwellings on the 60-acre parcel of property that includes the 900 King Street site. Originally, before acquiring the property, Entin had proposed building 550 dwellings on the 60- acre property. But that was a non-starter. The Town felt the proposed density would be excessive, and it insisted instead on a mixed-use PUD in which the lower density of the adjacent commercial site would compensate for the higher density of a multi- family residential site. Consistent with the Town’s goals, Entin agreed to donate 6 acres to the Town and build a 2-story office building (approximately 200,000 square feet). [Sources: DOCUMENT NO. 1, Minutes of Rye Town Planning Board, Sept. 7, 1972 and DOCUMENT NO. 2. Minutes of Rye Town Planning Board, Dec. 12, 1972 plus the Statement of the Planning Board dated April 24, 1973.] Questions: All of the permitted 250 dwellings have already been built in the Arbors section of the PUD. So, under the Town’s ruling, the number of additional dwelling units that can be built now is zero. Yet Chapter 1 of the DEIS indicates that the applicant now proposes to build as many as an additional 269 units. Rosemary Schlank 900 King Street, page 5 The exact definition of dwelling units may be subject to interpretation and the applicant states that 85 of the 269 units are not dwelling units in its opinion. Why does the applicant think the addition of any dwelling units at all is consistent with the intent of the original PUD regulations? And why does the applicant feel the Village of Rye Brook can and should override the terms and conditions set by the Town of Rye? 7. Terms and conditions: The Town’s procedure for modifications of the PUD requires the consent of all the property owners in the PUD. The Town of Rye decided that any requests for modifications to the approved site plan for the 60-acre PUD would need to be signed by all owners of property within this specific PUD zone. In the case of the proposed project, the other property owners include the Arbors HOA, which owns the roads and common areas, and the 250 owners of private lots in the residential section of the PUD. This requirement is documented in the initial PUD resolution that was approved in June 1973. The very same night that it approved the PUD resolution, the Town also rezoned the Cook/Harkness property (Arbors/900 King Street land) as the first PUD in the Town of Rye. [Source: DOCUMENT NO. 3. [Minutes of Town Board meeting, June 19, 1973. See pages 234 to 241 and pages 241 to 243.] Additionally, a 1998 Village of Rye Brook resolution provided in Appendix B of the DEIS reinforces this decision. It states: “…any modifications should continue to be governed by the PUD regulations in effect under the Town Code as of the date of the original Site Plan Approval, rather than the provisions currently governing a PUD under the Rye Brook Code. “ Questions: Why does the applicant feel it is not required to comply with the procedure established by the Town of Rye – or to even consult with and obtain the consent of the property owners in the residential section of the PUD? Could the applicant please clarify who is the current owner of the 900 King Street property? The County’s records show that ownership of the 900 King Street site was transferred to different LLCs in May 2017, (i.e., Rye King Associates transferred title to 900 King Street to entities called “900 King Street Owner LLC” and “900 King Owner Holdings LLC).” [Westchester Records Online, Control No. 571443333.] Peter Duncan signed the conveyance papers as president. But LLCs have considerable flexibility in assigning optional titles like president. So could the applicant please disclose the names of the LLC principals that hold title to the property through the LLCs named on the deed? Rosemary Schlank 900 King Street, page 6 8. Terms and conditions: The office space at 900 King Street was a “condition precedent” for building higher-density townhouses within the 60-acre PUD. Throughout its long and thorough site plan review process, the Town of Rye consistently stated that the development of the office space was a “condition precedent” - without which the construction of the densely-populated 250 townhouse dwellings would not have been approved and without which the construction could not have begun. The supporting documentation includes the following: - September 1973. The decision was first made in September 1973 when the Town Board approved a preliminary PUD site plan submitted by Entin for construction on the 60-acre site subject to certain site-specific terms and conditions. The terms and conditions required submission of more detailed plans at a later time, and submission of certain details (e.g., grading) was permitted on a section-by- section basis. However, the Town made it clear that the developer was required to file a building permit for construction of at least 50,000 square feet of office building simultaneously with the building of the dwelling units. [Source: DOCUMENT NO. 4. Minutes of Town Board meeting, Sept. 18, 1973. See pages 21-26.] - January 1977. The decision was reinforced in January 1977, when the Town Board considered the involvement of Berco Construction Company as contract vendee and decided that building permits needed to be issued simultaneously for the office building and the residential section. The Board referred to this as a “condition precedent” for construction of the residences. [Source: DOCUMENT NO. 8. Excerpt of minutes of Town Board meeting, pages 9 through 14. The date is marked on the side tab.] In effect, the “condition precedent” was established as a way to ensure a balanced and complementary mix of commercial and residential land uses. This mix of uses was seen as a way to mitigate the population shift that would otherwise result from a density of 7 dwellings per acre in the residential section. This 7-per-acre density was unusual for the Town of Rye. Without the office building, the 7-units-per-acre residential density would not have been permitted and the Arbors would never have been built. The VRB Code is even more rigid in that it does not permit this level of density today in any future PUD. Questions: Why does the applicant believe the Village of Rye Brook can and should override the “condition precedent” set by the Town of Rye for this particular PUD? In view of the history of the PUD and the location-specific decisions made in the past, why does the applicant believe any expansion beyond the original footprint of the office building is consistent with the intent of the PUD regulations and precedents? In the absence of another 50- or 60-acre property adjacent to 900 King Street that could mitigate the impact of the population shift, how can the effects of the increased density be effectively mitigated? Rosemary Schlank 900 King Street, page 7 9. Architectural consistency: Harkness Home vs. Proposed Facility. As an indication of architectural styles that were permitted in the past, it is still possible to obtain a postcard with a picture of the Harkness home that was located on the Cook property for $1.25 from HipPostcard at https://www.hippostcard.com/listing/port- chester-new-york-postcard-mary-harkness-convalescent-home-artvue- 1955/11723516. The Harkness home was built on a hilltop in approximately the same place as the office building. A picture of the Harkness home surrounded by its generous and well-kept lawn area as it graced the 900 King Street site is shown below, followed by pictures of the existing office building and the proposed facility as shown on the cover of the DEIS. Comparison of Harkness Home with Office Building and Proposed Senior Living Facility The two-story office building with its gently-sloping lawn area blends in with the surroundings. But the height and architectural style of the proposed senior-housing building appear to be out of sync with the surroundings. A spokesperson for the applicant has tried to justify the appearance of the building in public hearings by discussing the extent to which the building would be visible to others while standing or walking in certain locations. But that is not the issue. That is like arguing that there is no sound when a tree falls in the forest and there is no one around to hear the sound. The issue is with the architectural style of the building and whether it is consistent with the character of the community. Rosemary Schlank 900 King Street, page 8 Questions: Does the applicant believe the three facilities are architecturally compatible - and that they belong in the same neighborhood and are all consistent with the character of the same community? The other property owners in the PUD have relied on the zoning codes and policy decisions of the Town of Rye to protect their quality of life and preserve their property values. Does the applicant believe its proposal is fair to the citizens of the Arbors and of the entire Village? Can the applicant please suggest alternatives in the FEIS that are fairer and more architecturally consistent? 10. There are also concerns about the attempts to justify the proposal by reference to the wording of the 2014 VRB Comprehensive Plan. The DEIS uses selective quotes from the Comprehensive Plan, and it appears to quote excerpts from the Plan out of context. At the time the Plan was written, the Hilton Westchester had proposed developing a 100-unit assisted-living building and a memory-care facility with 25 units. This is likely the site the Plan had in mind when it suggested that the Village might consider allowing assisted-living or senior care facilities to be four stories or 45 feet in height. With regard to the 900 King Street site, the 2014 plan offers suggestions that relate to keeping the office building and making it more marketable. The plan does not mandate (or even suggest) the kind of radical redevelopment of the portion of the PUD that is discussed in the DEIS. On the contrary, the plan suggests that existing variances be addressed through changes in zoning laws, and it recognizes that, “the Village clearly desires to carefully control the type of largescale development that is contemplated by the PUD zone.” In these regards, the proposal appears to conflict with the comprehensive plan, and that is another fatal flaw. As Counsel to the Planning Board explained, the proposal should not be inconsistent with the comprehensive plan. Questions: Why is the applicant requesting that senior living be the only permitted use of the land? In the DEIS, the applicant complains of vacancies in office facilities and it projects that the vacancies will continue in the future. Does the applicant recognize that the actions it has taken during the past year might be construed as constituting a self-fulfilling prophesy of defeat in that regard? Would it make more business sense to request the flexibility to use the site for other purposes as well? For example, a repurposing of the office building to be part-office, part-research laboratories? This would appear to be more consistent with the intent of the zoning laws and comprehensive plan. 11. The concerns are compounded by the lack of information about the firm that will manage the facility and the viability of the business strategy. Without some evidence of commitments from a future manager and/or occupants, the project appears to amount to “building on speculation.” This strategy is particularly risky for this proposal because it involves: (a) building for a specialty segment that is subject to special regulations, (b) building the facility in a particularly bad location because it appears to be inconsistent with the character of the community, and (c) building the facility at a particularly inopportune time due to trends that have developed since the Comprehensive Plan was adopted in 2014. Rosemary Schlank 900 King Street, page 9 Here are a few examples of trends that adversely affect the viability of the business strategy: - Supply glut, low occupancy rates. Currently, there appears to be a supply glut for senior housing. Statistics show the inventory of senior housing has soared in recent years while occupancy rates have fallen dramatically since 2014. In fact, occupancy rates for assisted living facilities are at their lowest levels since 2006. This trend may improve eventually at some future date, but one analyst is quoted as saying, “The fundamentals of the senior living sector will improve, but it might be a bit like watching paint dry.” [Source: “Baby Boomers Are Living At Home. That’s Bad News for Senior-Housing Developers,” Wall Street Journal, Esther Fung, Oct. 30, 2018.] - Changes in funding for senior housing proposals. Some of the pressure on municipalities to provide additional affordable housing has abated since 2014, and the press is reporting that our state and county legislators are rethinking the priorities for the low-income housing tax credit program. State legislators are reportedly assigning a higher priority now to funding for family-housing proposals over funding for senior-housing proposals, and County legislators have reportedly launched a new study of housing needs on which they will base future decisions about taxpayer investments in affordable housing. [Source: “Tax Watch: Tougher now to build affordable senior housing in Westchester,” David McKay Wilson, Rockland/Westchester Journal News, Sept. 13, 2018.| Questions: Does the applicant have a commitment from a company that will manage the senior housing facility? If so, who is the company? What is its track record? How do the current trends affect the assumptions made by the applicant and the management firm about future occupancy rates and affordable low income housing tax credits? What evidence does the applicant have that the proposal will in fact provide a stable economic base for the Village and/or meet a real need for senior housing options, especially in view of competing facilities such as the Broadview Senior Living Development at Purchase College? Construction is expected to start soon on Broadview, and this development has the competitive advantage of being able to market itself as not just a senior living community but a senior learning community. 12. There are also concerns about blocked communications between the applicant and the other property owners in the PUD. The Village posts the applicant’s written documents on its website. But statements made in public hearings indicate the applicant may be making selective disclosures to one or two owners of property in the PUD. Selective disclosures that occur behind closed doors should be avoided because they could result in sales or purchases of real estate based on insider information. Additionally, the lack of open and transparent communications is not consistent with the requirements that: (1) the applicant must have the consent Rosemary Schlank 900 King Street, page 10 of all the other property owners in the PUD for any modifications to the PUD, and (2) the applicant must consider land uses within ½ mile of the project site. There are at least 251 other property owners in the PUD of which the Arbors HOA counts as one. To comply with the requirements and meet its obligations, the applicant needs to find a forum or venue within which it can discuss the project openly with all the other property owners in a good faith effort to arrive at a mutually agreeable set of plans and alternatives. Since many Arbors owners are non- resident owners who are away for the wint er, technology is probably the best way to deal with the logistics. The applicant needs a website where the property owners and the applicant can share information and concerns in their own space and time. Questions: Is the applicant willing to meet with the property owners or participate in a website forum with the property owners? If not, why not? Has the applicant already provided selective communications in the past to certain individuals in the PUD or their attorney(s)? If so, could the applicant please explain in the FEIS what was disclosed and why this was done? ________________________________________________________________ Note 1. Questions and answers from the SEQR Handbook. The SEQR Handbook provides the following questions and answers to clarify the significance of inconsistencies with community character as well as the types of evidence that the courts support. Q28. Why is "community character" an environmental issue? A. The Legislature has defined "environment" to include, among other things, "...existing patterns of population concentration, distribution or growth, and existing community or neighborhood character" (see ECL 8-0105.6). Court decisions have held that impacts upon community character must be considered in making determinations of significance even if there are no other impacts on the physical environment. Q29. How can you determine whether an impact upon community character may be significant? A. Community character relates not only to the built and natural environments of a community, but also to how people function within, and perceive, that community. Evaluation of potential impacts upon community or neighborhood character is often difficult to define by quantitative measures. Courts have supported reliance upon a municipality’s comprehensive plan and zoning as expressions of the community’s desired future state or character. (See Village of Chestnut Ridge v. Town of Ramapo, 2007.) [http://www.dec.ny.gov/permits/55303.html#chestnut .] [Source: SEQR Handbook, Division of Environmental Permits New York State Department of Environmental Conservation, 3rd edition, 2010, pages 87 and 88.] Rosemary Schlank 900 King Street, page 11 Part II – History of the PUD and related Questions and Answers A review of the history of the Arbors/900 King Street/Harkness Park PUD (originally known as the “Harkness at Rye Town) raises a number of questions, many of which were highlighted at the Planning Board’s Oct. 11, 2018 meeting. In an effort to provide additional information that would be helpful in addressing the questions raised at that meeting, this part of the letter provides a summary of the questions raised by the Board along with the answers that I believe are indicated by the history of the PUD. Attachment A provides a summary of the history of the entire PUD. Attachment B provides the related documents. Questions Discussed at Oct. 11th Planning Board Meeting The questions raised during the Oct. 11, 2018 Planning Board meeting, along with the insights gleaned from a review of the history of the PUD, are summarized below. {For expediency, the questions are paraphrased and based on memory. I apologize for any errors or omissions.) 1. What standards should be applied for size, density and number of residences in the proposed senior housing project? Historical insight. The key applicable standard is a maximum of 250 residences for the entire 60-acre PUD. Since 250 residences have already been built, the number of allowable incremental residences is zero. Consistent with the comprehensive plan, the Village could set a less restrictive density standard equal to the Arbors density of 7 units per acre for some areas of the Village. But prior approvals and precedents would preclude that same density at the adjacent 900 King Street site because it would spread the density over too large an area. 2. Should a modification of an existing PUD be held to the same standards as a new PUD - or are pre-existing PUDs “grandfathered” is some respects? Historical insight. As noted in my letter of Oct. 8, 2018, the zoning laws have changed since the original approvals, and the pre-existing PUD has clearly been grandfathered in fundamental respects, such as being located south instead of north of the Hutchinson River Parkway. The grandfathering concept applies to requests for modification. This is documented in the original resolution and the 1998 local law regarding the site. The original approvals and resolutions have been supplemented by additional Village regulations, and the specifications related to the additional regulations might form the basis for a separate site-specific Code section. But it is neither logical nor reasonable that a request for modification of the 900 King Street site should be governed solely by current VRB PUD standards, while the Arbors portion and the entire PUD are held to different standards. Past decisions and precedents must be considered as well. 3. Should the 900 King Street site be evaluated as part of a combined PUD - or is it a separate PUD? Is the Arbors/900 King Street property one PUD or two? Was the office building approved, developed and built at the same time as the Arbors – or was it developed separately? Rosemary Schlank 900 King Street, page 12 Historical insight. Realistically, the 900 King Street site cannot break away from the existing PUD and form a standalone PUD because it does not have sufficient acreage. This site has been an integral part of the entire PUD from the days of the original site plan approval in 1973 by the Town of Rye. There was one developer for the entire PUD, and the construction of the office building was a “condition precedent” to building the residences. Consequently, the 900 King Street site should be evaluated as part of the entire PUD, not as a separate PUD. 4. What should be the objective of the site-specific Code section that was proposed by the applicant and presented as being similar to the special Code section for the Arbors portion of the PUD? Are these code sections similar in purpose? Historical insight. As discussed in comment no. 3 of part I of this letter, the nature of the applicant’s proposed zoning amendments appears to differ markedly from the nature of the requirements established in the special supplementary Code section for the Arbors. To be fair to other citizens of the Village, ownership of land within a PUD should not be a license for the owner to write its own laws. 5. The comprehensive plan recommends a standard of density for residential sections that is less restrictive than the current standard, while still preserving the village’s low density character. Does the proposal (or any of the alternatives presented in the DEIS) actually achieve this goal? Historical insight. [Not applicable.] 6. Does the comprehensive plan have the authority to mandate future changes in zoning laws or to override the existing zoning laws? 7. Historical insight. [Not applicable.] But I believe Counsel to the Planning Board clarified that the comprehensive plan is not a mandate. It may offer points to consider, but the decision of whether or not to implement the points and on what scale is up to the Planning Board and the Village Board. The only caveat is that the decisions made by the Board should not be materially inconsistent with the plan. 8. Is the proposed project consistent with the character of the community? Are the alternatives presented in the DEIS consistent with the character of the community? Historical insight. A residential project of similar density was proposed and rejected in the early 1970s. There is no evidence that the proposed restrictions on the ages of occupants should alter the basic determination, and the issue of inconsistency with community character continues to be an apparent “show stopper” for the proposal. Questions for the applicant: Since the regulations and precedents set by the Town of Rye cannot be completely ignored and some of the applicable records are available today, this letter requests that the applicant provide additional information under certain sections of the scoping document. Specifically, I ask that the SEQR scoping document be modified as follows: Describe the consistency of the existing development on the “project site” with (a) the Village’s “current PUD Zoning District” [and the Town of Rye’s original zoning regulations and precedents], and (b) the history of land use approvals for the project site [including the relevant aspects of Rosemary Schlank 900 King Street, page 13 the history of approvals for the entire PUD]. Highlights of the major areas to be addressed are provided in Part I of this letter under bullet points 6 through 8. Summary There are many open questions about the proposal in part because of incomplete records and in part because the proposed project appears to amount to “building on speculation.” Current market trends call into question the viability of business strategies for senior-living facilities over the short-term future. This presents a risk for the Village and its citizens that the project will result more empty buildings and tax certiorari proceedings. In view of current trends, it is understandable that investors in senior-housing projects would want to hedge the risks and uncertainties with a mix of independent living and assisted living facilities and with sufficient quantities of each to cover any declines in occupancy rates of the other. But this strategy requires a large volume of dwelling units, and the resulting density is not appropriate for the proposed location. The project would result in an inconsistency with community character which is a fatal flaw under SEQRA, and the courts would likely support this finding because the record shows that the PUD has a long history of laws and precedents that provide clear, unambiguous, and remarkably consistent evidence of the kind of character we want our community to have now and in the future. In view of the concerns about the project as currently proposed, I urge the Planning Board to recommend appropriate revisions to the current zoning laws to ensure the promises made to the community in the past will be honored. And I urge the applicant and investors to rethink their business strategy and consider: (a) other locations for the senior-housing facility and (b) other commercial alternatives for the PUD site at 900 King Street. Thank you for considering my comments and suggestions. If you have any questions or need any more information about any of these points, please do not hesitate to contact me. Yours truly, Rosemary Schlank Attachments: A. Tabular summary of the history of the Arbors/900 King Street PUD B. Original documentation referenced in the letter and Attachment A C. Wall Street Journal article with graphs of current trends Rosemary Schlank 900 King Street, Attachment A Page 1 Attachment A Summary of the history of the entire PUD with references to documents provided in Attachment B A review of the historical information helps to answer the questions raised by the Planning Board. The Arbors/900 King Street PUD was developed on land that was previously owned by William W. Cook and used by New York Presbyterian Hospital for the Mary Harkness Convalescent Home. The historical information for this PUD is voluminous because the details evolved over time, and all stages were subjected to thorough reviews. But the Town of Rye Board never strayed from the original concept. The major historical milestones in the transformation of the Cook/Harkness property into today’s PUD are as follows: Type of Change Date Deed or Easem’t Policy Or law Major milestone Background Early 1970s  Land owned by William W. Cook was transferred to the Law School of the University of Michigan under the terms of Cook’s will. Altogether, there were approximately 80 acres of land, some of which was used for the Mary Harkness convalescent home (see photo on page 6). [Westchester Records Online, Liber 06994, Page 00675.] 1971  In June 1971, the trustees of Cook’s estate sold 20-of the 80- acres to the Union Free School District no. 5 (now known as the Blind Brook Rye Union Free School District). [Westchester Records Online, Liber 06994, Page 00658.] Original Zoning Resolution 1972  During 1972, the Town of Rye entered into discussions with Lester M. Entin Associates to explore the feasibility of a new concept involving creation of a 60-acre PUD for the remaining 60 acres of the Cook/Harkness property. The talks with Entin played a critical role in shaping the Town’s original PUD zoning regulations during this formative period). [DOCUMENT NO. 1, Minutes of Rye Town Planning Board, Sept. 7, 1972.] June 1973  In June 1973, the Town Board voted on resolutions to establish the initial terms and conditions for a PUD and it rezoned the 60 acres of the Cook/Harkness property as the Town’s first PUD on the very same day. Highlights include the following ─ Entin proposed building 550 dwellings on the 60-acre property. But the Town insisted on a mixed-use PUD that would provide no more than 250 dwellings on the 60-acre property. Entin agreed to donate 10% of the land to the Town and to build a 2-story office building (approximately Rosemary Schlank 900 King Street, Attachment A Page 2 200,000 square feet). [DOCUMENT NO. 2. Minutes of Rye Town Planning Board, Dec. 12, 1972 plus the Statement of the Planning Board dated April 24, 1973.] ─ The PUD resolution discussed how to handle any requests for modifications of a PUD after it had been approved. The Town decided to require consent by all owners. [DOCUMENT NO. 3. [Minutes of Town Board meeting, June 19, 1973. See pages 234 to 241 and pages 241 to 243.] Original Approvals of Site Plan and Subdivision Plat Sept. 1973 In September 1973, following a public hearing, the Town Board approved a preliminary PUD site plan submitted by Huntington- Larson Architects on August 20, 1973 on behalf of Entin Associates for the 60-acre site. The approval was subject to certain site-specific terms and conditions that required submission of more detailed plans at a later time. Submission of certain details (e.g., grading) was permitted on a section-by- section basis. However, the developer was required to file a building permit for construction of at least 50,000 square feet of office building simultaneously with the building of the dwelling units. [DOCUMENT NO. 4. Minutes of Town Board meeting, Sept. 18, 1973. See pages 21-26.] Jan. 1974  In January 1974, Lester M. Entin Associates purchased the 60- acre Cook/Harkness property from the trustees for Cook’s estate. [Westchester Records Online, Liber 07175, Page 00005.] From that point on, Entin was involved in every stage of the development of the property through its completion. 1st Half 1974  During the first half of 1974, the Town approved a detailed site plan, a subdivision plan and building permits for the PUD. The detailed site plan application was approved by the Town subject to certain terms and conditions. The major milestones and related documentation include the following: ─ In February and March 1974, the Town’s Planning Board reviewed the detailed site plan and recommended that the plan be approved subject to certain conditions. Among other things, the Board required that Entin communicate with bordering residents on Hillandale Road and Meadowlark Road and offer to provide fencing upon request. [DOCUMENT NO. 5A. Minutes of Rye Town Planning Board meetings, Feb. 11, 1974 and March 7, 1974.] ─ In March 1974, the Town approved a revised site plan subject to certain terms and conditions. The changes involved a relocation of the entrance to Arbor Drive. [DOCUMENT NO. 5B. Minutes of Town Board meeting, March 19, 1974. See pages 139–143.] Rosemary Schlank 900 King Street, Attachment A Page 3 Original Approvals of Site Plan and Subdivision Plat (cont’d) ─ In June 1974, The Town Board approved the PUD subdivision plat submitted by Entin. The Board also authorized the Building Inspector to issue permits for the first section of residences and the first 50,000 of office space, and it approved a resolution related to the donation of land to the municipality. [DOCUMENT NO. 6. Minutes of Town Board meeting, June 18, 1974.] 1974  In June 1974, Lester M. Entin Associates executed conveyance papers that effectively transferred title to the former Cook/ Harkness property to an entity known as the “Harkness at Rye Town,” a joint venture of Entin’s firm and TBS Enterprises. In effect, this entity held the land for the Town’s first PUD. [Westchester Records Online, Liber 07213, Page 00784.] 1976  In March 1976, The Harkness at Rye Town donated land to the Town. The land is now known as Harkness Park. [Westchester Records Online. Liber 7317, page 55.] 1976  In August 1976, The Town Board approved a revised site plan and revised subdivision plat plan filed jointly by Entin Associates and TBS Enterprises, as well as Berco Construction Company. Berco was required to sign the plans because it served as “contract vendee” for the townhouses. In that capacity, Berco would be involved with real estate that included the PUD’s entrance road. As part of the plan approvals, the Board authorized the Building Inspector to issue building permits, provided that permits were issued simultaneously for the first residential section and the first 50,000 square feet of the office building. [DOCUMENT NO. 7. Minutes of Town Board meeting, Aug. 17, 1976.] In January 1977, The Town Board adopted a resolution to “clarify and amplify” the resolution of August 17, 1976. This involved revisiting the context of the resolution involving Berco as contract vendee and the decision that building permits needed to be issued simultaneously for the office building and the residential section. The Board used the term “condition precedent” to describe the requirement that a building permit must be issued for the first 50,000 square feet of office construction before a permit can be issued for construction of the residences. The Board clarified that, once the condition precedent was met, Berco could then proceed to develop the residential section separately from the office building without any requirement for Berco to hold an ownership interest in the office building. Entin continued to hold title to the office building site through the “Harkness at Rye Town” entity. [DOCUMENT NO. 8. Excerpt of minutes of Town Board meeting, pages 9 through 14. The date is marked on the side tab.] Rosemary Schlank 900 King Street, Attachment A Page 4 Construction of the PUD 1977  In March 1977, the Harkness at Rye Town transferred property to “King’s Walk at Rye Town.” [Westchester Records Online, Liber 7383, page 580.] Also in March 1977, King’s Walk transferred land to Berco Rye Town to build the entrance road, and Berco gave Harkness an easement to go to and from King Street to a proposed driveway for the office space (as shown on drawings from Dolph Rotfeld approved by the Building Inspector on March 15, 1977). Berco also gave Harkness an easement to install utilities while the road was being built. [Westchester Records Online. Liber 7383, page 530.] 1978  In June 1978, the Harkness at Rye Town gave the school district a 5-foot wide easement for a non-exclusive pedestrian and non-motorized bicycle path to the school district. [Westchester Records Online. Liber 7477, page 316.] 1978- to 1979  From August 1978 until December 1979, the Arbors townhouses were built and the lots were sold via deeds to individual homeowners as well as transfers of common areas to the HOA. The conveyance papers for the common areas were filed by both King’s Walk at Rye Town and Berco Rye Town Co. due to the way the financing and mortgages were handled. 1979  In 1979, the Town Board revisited some of the details of the decisions previously made on the 900 King Street site. - In June 1979, The Town Planning Board discussed an application by Atrium Associates for the office building. The discussion focused on traffic and square feet. At the end of the meeting, the Planning Board agreed preliminarily to raise the permissible square footage to 175,000 square feet. [DOCUMENT NO. 9. Minutes of Rye Town Planning Board meeting, June 27, 1979.] - In October 1979, the Town Board considered the Planning Board’s recommendation but decided to stay with the 163,000 maximum square footage for the office space. The Board discussed the possibility of doing an independent traffic impact study but decided against it because the traffic study does not appear in the list of conditions under which the final site plan was approved (i.e., the site plan dated Sept. 20, 1979 and entitled “Site Development Plan Atrium Associates – proposed office building, Town of Rye, NY). Details of the site plan reviewed at that meeting include building 627 parking spaces with provision for 188 more spaces to be built in the future, submission of a detailed landscape plan, and preservation of existing trees wherever possible. [DOCUMENT NO. 10. Minutes of Rye Town Planning Board meeting, October 4, 1979.] Rosemary Schlank 900 King Street, Attachment A Page 5 Construction of the PUD (cont’d) 1979  In September 1979, the Harkness at Rye Town transferred land now known as 900 King Street to Atrium Associates. [Westchester Records online. Liber 7592, page 674.] 1980  In October 1980, IBM signed an agreement to lease the 900 King Street site from Atrium Associates. Westchester County Records Online, Conveyance Papers, Control #: 000380325, Recorded 11/20/1980, Liber 07666, Page 00649. Resolution of Litigation 1981 In August 1981, a decision was reached in the litigation against the Town or Rye for lack of compliance with SEQRA and failure to enforce zoning regulations properly. The litigation involved the Rye Town/King Civic Association et al. Appellants, vs the Town of Rye. The case was tried by the Appellate Division of the Supreme Court of New York, Second Department, Aug 24, 1981 [Town Assn v. Town of Rye, 82 A.D.2d 474 (N.Y. App. Div. 1981)]. Transition from Atrium to Rye King 1993  In April 1993, Atrium Associates transferred title to the 900 King Street property to Connecticut General Life Insurance Company. [Westchester Records Online, Liber 10573, page 00041.] 1998  In May 1998, in response to an inquiry from Starwood, a prospective buyer of the 900 King Street site, the Village of Rye Brook approved a resolution/local law entitled, “Confirming the conformance of the existing improvements at 900 King Street, Village of Rye Brook, NY with the original site plan approval of the town board of the Town of Rye for that property and with the provisions of the code of the Town of Rye relevant to planned unit development.” The resolution notes that it appears the 900 King Street site was originally improved pursuant to a Resolution of Site Plan Approval adopted by the Town Board on October 4, 1979, as reaffirmed and modified by the Town Board on December 30, 1981. It also refers to “possible further resolutions responsive to legal actions and settlements thereof, the complete records thereof do not appear to exist in the official records of the Town of Rye or this Village,” as well as applicable provisions of the Town of Rye (the “Town Code”) then in effect. 2000  In July 2000, Rye King acquired 900 King Street property from Connecticut General Life Insurance [Westchester Records Online, Control no. 401870225.] Rosemary Schlank 900 King Street, Attachment A Page 6 Review of the Arbors section of the PUD by the Village 2005  In 2005, the Arbors HOA transferred title to a parcel of land to the Village and the Village gave the HOA an easement over a spur road for emergency ingress and egress. [Westchester Records Online, Control No. 452920159 and Control No. 453320448.] 2013  In March 2013, the Village Board modified Chapter 250, Section 7, Subsection (E), Item (5) of the Village Code by adding a site-specific section for the Arbors section of the PUD. The Planning Board comments indicate the purpose of this section was to streamline review procedures involving emerging issues, such as stormwater management and Architectural Review Board involvement. [VRB Planning Board Recommendations, February 14, 2013.] [The Codification refers to this amendment as L.L. No. 2-2013] Review of the 900 King Street section of the PUD by the Village in connection with a proposal for senior housing 2017  In May 2017, Rye King Associates transferred title to 900 King Street to entities called “900 King Street Owner LLC” and “900 King Owner Holdings LLC.” [Westchester Records Online, Control No. 571443333.] 2018 In September 2018, AKRF, Inc. submitted a Draft Environmental Impact Statement (DEIS) on behalf of 900 King Street Owner LLC, and the Village commences its review. Rosemary Schlank 900 King Street, Attachment C Page 1 Attachment C Baby Boomers Are Living at Home. That’s Bad News for Senior-Housing Developers. Supply of senior housing has soared, but much of it hasn’t been needed By Esther Fung Oct. 30, 2018 It seemed one of the surest bets in real estate: build senior-housing facilities that cater to aging baby boomers who will require more care. The problem is, boomers haven’t much cooperated. The supply of senior housing has soared in recent years after many investors struck on the same idea. The market has added 84,727 units since the end of 2012, up from 59,136 units during the six years before, according to the nonprofit National Investment Center for Seniors. . But much of that senior housing hasn’t been needed. . Rosemary Schlank 900 King Street, Attachment C Page 2 Many in the generation born between 1946 to 1964 have remained fitter, more independent or stayed closer to their families than many developers anticipated. And since recent demographic data suggests people tend to move into senior-living facilities after they reach 82 years old—the oldest boomer won’t turn 80 until 2026—many of these facilities have arrived ahead of their time. “What’s happened to the industry is that everyone sees the demand, and they can’t quite figure out exactly when to time it,” said Lucinda M. Baier, chief executive officer at Brookdale Senior Living Inc., the largest operator of senior housing in the U.S. Occupancy rates for senior housing stood at 87.9% in both the second and third quarter—the lowest rate since 2011 when it reached 87.5%, according to NIC, which tracks market-rate properties. Occupancy levels for assisted-living facilities, a category of senior housing, are also at their lowest levels since reporting on this data began in 2006, NIC said. “There’s been a severe supply problem,” said Jeffrey Yurk, a portfolio manager who specializes in the health-care sector at Heitman’s North American Public Real Estate Securities Group. He has reduced investments in REITs with bigger exposure to senior housing. In recent years, shares of Brookdale, a Brentwood, Tenn.-based company, have tumbled following concerns of oversupply. Two activist hedge funds have also urged it to restructure leases and sell or spin off real estate that it owns at a faster pace. Senior housing includes independent living and assisted-living facilities for residents who don’t require round-the-clock care. Those with more complex health conditions reside in nursing homes that have more specialized medical professionals. The glut also reflects some developers overestimating the number of seniors who can afford these residences, which cost around $3,000 to $8,000 a month. Seniors older than 80 are part of the so-called Silent Generation, which suffered through the Great Depression and World War II. Many remain more frugal and independent and resist moving into group housing, analysts say. “We have enjoyed having our own house and not have regimented meals,” said 96-year-old Ed Chambers, who lives with his 99-year-old wife in a three-bedroom house in Wyckoff, N.J. Mr. Chambers, who uses a walker, said there is a volunteer board in his community so someone takes care of the snow-shoveling and lawn-mowing duties. The supply growth hasn’t frightened off everyone. Mr. Yurk, Ms. Baier and many others believe senior-housing demand is coming and that boomers will eventually turn to these facilities. Rosemary Schlank 900 King Street, Attachment C Page 3 Related Cos., one of the largest real-estate developers in the U.S., said this month it is joining with senior-housing manager Atria Senior Living to build more than $3 billion of luxury urban residences catering to seniors over the next five years. Related said it sees demand from its customers looking for homes for themselves or their family members. The current oversupply situation won’t last, said Bryan Cho, executive vice president at Related. “We see that changing dramatically over the next five years,” said Mr. Cho, adding that in certain cities, availability rates are low and existing inventory is dated. Developers including Welltower Inc., Ventas Inc., Hines and Harrison Street Real Estate Capital have also invested in senior housing in recent years. Some favor it because senior housing is less tied to the ups and downs of the economic cycle than hotels, retail and most other types of commercial properties. “It’s very much needs-driven demand. These tenants are not one to get up and relocate out of a property because of an economic downturn,” said Chuck Harry, chief of research & analytics at NIC. Recently, there are signs that supply growth may be slowing. Construction starts totaled 2,349 units in the third quarter, which is around 6% of existing inventory. That was down from 6.5% in the second quarter, according to NIC. “The fundamentals of the senior living sector will improve,” said Mizuho Securities analyst Richard Anderson. “But it might be a bit like watching paint dry.” Write to Esther Fung at esther.fung@wsj.com Appeared in the October 31, 2018, print edition as 'As Supply of Senior Housing Soars Baby Boomers Stay Put.' Copyright: Wall Street Journal