Conifer Site Zoning is Quandary for Town Board

At a Tuesday work session, New Castle Town Board members appeared doubtful about whether the zoning for the site of Conifer Reality's affordable housing plan and a special permit needed for the project are consistent in terms of criteria, bringing uncertainty to the review process.

The site, which is at the end of Hunts Place and located between Metro-North train tracks to the east and a Saw Mill River Parkway exit ramp to the west, is zoned as General Industrial (I-G). However, in June 2010 the town board voted to add workforce housing, a type of affordable housing, as an additional permitted use. It would require a special permit, however.

The problem, board members felt at the meeting, is whether the special permit process in connection with an I-G zone is consistent. Councilman Robin Stout, for instance, said that the way special permit provisions were in connection with I-G are “logically inconsistent.” He added that the issue, based on advice of counsel, should be addressed.

Supervisor Susan Carpenter noted that the I-G zone limits what can be developed.

“One of things that we have consistently said in our meetings, publicly, is that it's our position that the underlying zoning on that site limits the building that can be there, and the underlying zoning is I-G.”

Carpenter appeared skeptical as to whether affordable housing is even viable with the zone.

“The amount of, the size of a building that can be there under the I-G zoning is very, very limited and probably not even remotely possible for affordable housing,” or probably any housing.

However, the supervisor also said that the special permit conditions are “really somewhat dfiferent then the position that we've taken, which is it's got to be I-G or, or it doesn't comply, because the special permit conditions are not that restrictive.”

Carpenter also admitted that she told Conifer about finding an alternative site.

“I have encouraged them to do that.”

Conifer's plan, dubbed Chappaqua Station, is a 36-unit apartment building that ranges in height from three to five stories. The site, if the right of way for the end of Hunts Place is factored in as the developer proposes, is 0.38 acres.

Several key I-G zoning limits for development, most of which are carried over to workforce housing structures, are not met by Conifer. They include building height, front and side yards, and maximum building coverage for the parcel. As a resuilt, Conifer would need several variances from the zoning board of appeals, in addition to the permit itself.

If Conifer were to comply without needing variances, it would be limited to a structure of around five to six housing units, Town Planner Sabrina Charney Hull wrote in a feedback memo dated Jan. 18. At a public hearing on Jan. 22, some board members suggested that Conifer pursue a smaller alternative building as part of the review.

Conifer decided not to downsize its apartment count because of the fact that it received state funding tied to that number, its attorney, Alfred DelBello, said last year. Reached for comment on Wednesday, about whether a smaller building would be considered now, DelBello declined to answer.

A challenge discussed at the work session was what the town should do next. One option brought up was to change the site's zoning to Retail Business (B-R). Such zoning is already in place, including a similar variant called B-RP that includes parking in the naming, for much of downtown Chappaqua's retail corridor. The B-R and B-RP zones in downtown area are also eligible for the workforce housing special permit process, according to the 2010 change.

If the site is changed to B-R, Carpenter said, it would allow for a smaller building than what Conifer has proposed but one that is larger than what I-G allows for. 

At one point, Conifer divulged that Conifer has threatened to sue in connection with the matter. Her comments came from her posing the question of whether Conifer should spend money on a proposal that does not comply with the I-G zone.

“That's the issue. Is, is there any point in their [Conifer] spending money on a proposal for something that doesn't meet the I-G zoning, or do, because if that's our position then they may as well just go ahead with their proposal and, as they keep saying they'll sue us.”

The supervisor also felt that the town should clarify to Conifer what it would consider.

Carpenter added, "And I don't know that it's reasonable to say to an applicant, 'come back with a proposal that we can't even tell you we would be willing to consider,' because it's spending even more money and they may as well spend their money suing us.”

Stout, noting an Oct. 26 memo that Town Attorney Clinton Smith gave for possible options. They included, Stout stated, overriding the I-G district through pre-emption, or identifying interests that are "inherent" in the I-G and make something that is “rationally related to the purposes we're trying to achieve.” These scenarios were described in additon to a zoning change to B-R.

The board then opted to go into a closed-door executive session to get legal advice from Smith on how to proceed. Hull, the town planner, was then brought into the closed meeting. When the board resumed its open work session, it was agreed that Smith would draft a resolution "consistent with the [executive session] advice given tonight," capturing what the board's sense was of the situation.

A final resolution will be made public when the town board approves it, according to Stout, which would be at a later date. It is not clear, since executive sessions are not public, whether the board is considering any of the zoning scenarios brought up by Stout.

The town code provisions that detail the special permit process, including general criteria and for workforce housing, can be found on the town's website. Users need to search first under Zoning (Chapter 60) then under Article IV for regulations, and then under an item called "Permitted special uses."