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Form Based Code FAQ's

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1. NEW - Will completing the SEQRA review for the FBC on the entire study area undermine the Town Board’s ability to limit the FBC to only a small area (the North Greeley corridor)...

or make it easier for other property owners to change their zoning to FBC or obtain zoning variances? 

A:         No.  

Summary

The Town Board’s legislative discretion with respect to zoning is extraordinarily broad.  As a matter of well-established law, a property owner who challenges their existing zoning classification must overcome a very strong presumption that their existing zoning is valid.  Examples of successful zoning challenges are extremely rare. Moreover, SEQRA and its implementing regulations expressly state that SEQRA does not change the jurisdiction of local boards.  This limitation has been held to include zoning, which is a matter of legislative discretion.  

Likewise, the creation of a new, separate FBC district would not help property owners in other parts of the study area obtain variance relief. The applicable standards for obtaining variance relief are rigorous and property specific; the zoning classification of other properties is not a relevant consideration.  

In sum, rezoning the North Greeley corridor would not make it easier for other property owners within the study area to obtain zoning changes or variances.  In fact, it would provide no foundation or "leg up" whatsoever. The creation of a new zoning district with FBC regulations in a distinct area of the hamlet would have no impact upon the legal analyses applicable to zoning challenges or variance requests outside the new district’s boundaries.

Legislative Discretion: Zoning

A municipality’s zoning is required to bear a substantial relationship to the “public health, safety, and general welfare” of a community.  See Village of Euclid, Ohio v. Ambler Realty Co., 272 U.S. 365, 383, 47 S.Ct. 114, 117 (1926).  These are extremely broad and elastic concepts under which the Town Board is free to subjectively assess and establish the parameters of any form-based zoning district in the Chappaqua hamlet.  

New York’s highest court has instructed that zoning decisions should be treated as “conclusive, [and] beyond interference from the courts unless shown to be arbitrary, and the burden of establishing such arbitrariness is imposed upon he who asserts it.” Robert E. Kurzius, Inc. v. Incorporated Village of Upper Brookville, 51 N.Y.2d 338, 344, 434 N.Y.S.2d 180 (1980) (quotation marks and citation omitted). 

A property owner outside the North Greeley zoning district who wished to have their zoning designation changed to the North Greeley district regulations would face the virtually impossible task of demonstrating that the Town Board’s legislative decision with respect to mapping the North Greeley District was arbitrary and wholly unrelated to any legitimate objective.  Fundamentally, zoning is established through the drawing of districts with geographic boundary lines and the establishment of regulations within those districts.  The Town Board has the legislative authority to draw these lines, and the task necessarily leaves some land within and other land outside a particular district.  This line drawing is a legislative function subject to all the discretionary considerations and deference discussed above. 

While zoning amendments typically require SEQRA review, the SEQRA review process and requirements do “not change the existing jurisdiction of agencies nor the jurisdiction between or among state and local agencies.”  6 NYCRR § 617.3[b].  See also ECL § 8–0103(6).    In other words, “SEQRA neither preempts nor interferes with local zoning ordinances.”  WEOK Broadcasting Corp. v. Planning Bd. of Town of Lloyd, 165 A.D.2d 578, 568 N.Y.S.2d 974, 975 (3d Dep’t 1991), aff’d, 79 N.Y.2d 373, 583 N.Y.S.2d 170 (1992).  See also Town of Poughkeepsie v. Flacke, 84 A.D.2d 1, 445 N.Y.S.2d 233 (2d Dep’t 1981).

Variances

In addition to requesting a zoning change, a property owner may also seek a modification of existing zoning requirements by applying for a variance.  A “use” variance allows the use of land for a purpose that is otherwise prohibited under existing zoning.  An “area” variance authorizes the use of land in a manner that is otherwise prohibited by the dimensional or physical requirements (known as “bulk” requirements) of the applicable zoning regulations.  Variances must generally be sought from a zoning board of appeals.

Use variances are difficult to obtain and rarely granted because they require a property owner to demonstrate: 

(1) the property cannot yield a reasonable return if used only for permitted purposes as currently zoned, (2) the hardship resulted from unique characteristics of the property, (3) the proposed use would not alter the character of the neighborhood, and (4) the alleged hardship was not self-created.

When reviewing an area variance, a zoning board of appeals must consider: 

(1) whether an undesirable change will be produced in the character of the neighborhood or a detriment to nearby properties will be created by the granting of the area variance; (2) whether the benefit sought by the applicant can be achieved by some method, feasible for the applicant to pursue, other than an area variance; (3) whether the requested area variance is substantial; (4) whether the proposed variance will have an adverse effect or impact on the physical or environmental conditions in the neighborhood or district; and (5) whether the alleged difficulty was self-created, which consideration shall be relevant to the decision of the board of appeals, but shall not necessarily preclude the granting of the area variance.

Both of these standards focus upon the physical features and characteristics of the subject property and the immediately surrounding neighborhood.  The zoning classification of other properties is not a relevant consideration, let alone one that would weigh in favor of granting variance relief.  In fact, the adoption of a FBC for only a portion of the study area would unmistakably indicate a legislative intent to preserve the existing zoning in those portions of the study area not rezoned.  

Furthermore, courts regard a hardship as self-created if the variance applicant acquired their property with knowledge of its existing zoning restrictions.  In the case of use variances, such knowledge ordinarily forecloses a property owner from obtaining relief.

We also note that the procedural changes that would be implemented under the FBC are not land “uses” or “bulk” requirements that could be modified through the issuance of variance relief.  Thus, an applicant in the study area who received a variance from the Zoning Board of Appeals would still be required to obtain all applicable site development approvals under the Town’s existing (non-FBC) code requirements.

Conclusion

In sum, the adoption of a SEQRA Findings Statement with respect to the 72-acre study area will not increase the likelihood that property owners outside a newly established FBC district could successfully challenge their existing zoning classification or cause the FBC regulations to be applied to their properties through variance applications.

2. NEW - Why is the Town Board considering revisions to the FBC legislation before receiving draft responses to the comments from the public and interested agencies on the Town's DGEIS? ...

When completed, those responses will be incorporated into a Final Generic Environmental Impact Statement (“FGEIS”).  Why isn’t the Town Board waiting until the FGEIS is completed?

The Town Board is considering several legislative changes to the Form-Based Code legislation that, in its view, do not need to await its receipt of additional environmental analysis or the completion of the FGEIS. 

For example, changes to application review procedures are not dependent upon the results of the environmental review.  Also, changes that address public comments and result in the reduction of any environmental impacts are also appropriate to discuss at this time.  Discussing those changes now provides residents with additional opportunities to review and understand the proposed legislation and provide comments and feedback to the Town Board. 

The legislative changes being considered by the Town Board arose out of its work session discussions on April 23, 2021 at 9:30 a.m. and April 27, 2021 at 6:00 p.m., as well as its conversations with staff and residents.  Residents will recall the Town Board discussed making a number of specific legislative changes during those work sessions, including –

• Limiting the height of new buildings in the Form-Based District to 4 stories, with any fourth floor being set back at least 10 feet from lower floors;
• Enhancing the public notice requirements for new projects;
• Authorizing the Planning Board, not the Development Department, to review any development that creates a new building lot exceeding 0.5 acres; and
• Allowing applicants to pursue architectural styles not otherwise permitted under the Form-Based Code, subject to review and approval by the Town’s Architectural Review Board.

The redline version of the draft Form-Based Code legislation that the Town Board reviewed during its July 30, 2021 work session incorporated these and other changes.  The entire document may be accessed here: Chappaqua Forward - FBC

The Town Board has already announced a schedule for its continued environmental review under SEQRA, and further revisions to the Form-Based Code legislation are likely before the Town Board completes this process.  Rest assured that the Town Board will consider all public comments, studies, and information garnered through its SEQRA review, and no final decisions will be made by the Town Board with respect to the proposed Form-Based Code legislation until the SEQRA process is complete.  

3. What is a form-based code?

A form-based code is a means of regulating land development to achieve a specific urban form. It is a way to regulate development that controls building form first and building use second, with the purpose of achieving a particular type of “place” or built environment based on the vision of a community.

4. What is the purpose of Chappaqua’s comprehensive plan?

The New Castle Comprehensive Plan adopted in 2017 sets forth policy statements, goals and actions that will enable New Castle to navigate shifts in the world today and continue to thrive as a desirable place to live, work and play for generations to come.  Generally, comprehensive plans should be updated every ten (10) years to account for any changes in community policies and goals over that period of time.  Under New York State Law, a comprehensive plan serves as the foundational document for zoning legislation within the municipality.  Zoning laws are required to be in accordance with the municipality’s comprehensive plan.  

5. What is the goal of rezoning the Chappaqua Hamlet?

The goal is to ensure that all ele­ments of the built envi­ron­ment, includ­ing land use, trans­porta­tion, hous­ing, ener­gy, and infra­struc­ture, work togeth­er to pro­vide sus­tain­able, green places for liv­ing, work­ing, and recre­ation, with a high qual­i­ty of life. Specifically, the Form Based Code will create the structure to diversify the town’s housing stock (both housing type and price point) and revitalize the existing business area which is and has been plagued with vacant storefronts.  

6. Will the rezoning change the history of Chappaqua?

No. All devel­op­ment should com­ple­ment and main­tain the historic char­ac­ter that exists today. The proposed legislation protects the historic buildings and landmarks that exist within the hamlet today.

7. Is the Chappaqua form-based code a construction project?

This legislation is not a construction project. This form-based code offers opportunities for property owners to reinvest and redevelop their properties in the hamlet to help meet the goals of the community as outlined in the Comprehensive Plan.

8. What is GEIS?

“GEIS” refers to a Generic Environmental Impact Statement.  Upon review of the proposed Form Based Code the Town Board determined that the adoption and implementation of the Form Based Code may result in one or more significant adverse environmental impacts.  Therefore, the Town Board adopted a “positive declaration” pursuant to the State Environmental Quality Review Act (SEQRA) which triggers a requirement to prepare a Draft Environmental Impact Statement (EIS).  In this instance, because the action being studied is the adoption of legislation rather than a defined development project with specific impacts the Town Board decided to use a “Generic” EIS, or GEIS. A GEIS is a useful tool for studying the impacts of multiple actions within a geographic area.  Once a Draft GEIS (DGEIS) is accepted as complete (meaning, it contains all information outlined in the Scoping Document) the Town Board will hold a public hearing on the DGEIS.  All substantive public comments received during this period, both written and verbal, will be responded to in writing through the preparation of a Final GEIS (FGEIS).  After the FGEIS is accepted by the Town Board as complete (meaning, all substantive comments have been responded to accurately and adequately) the Town Board will prepare an Environmental Findings Statement.  The Findings Statement is a document in which the Town Board will evaluate all information in the GEIS (draft and final) to determine whether the proposed Form Based Code, or one of the alternatives studied in the GEIS, avoids, minimizes or mitigates all potentially significant adverse environmental impacts to the maximum extent practicable.  Following the Findings Statement, the Town Board can make a decision on whether or not to adopt the Form Based Code.

9. Didn’t the members of the Downtown Working Group who own commercial properties in the Chappaqua hamlet have conflicts of interest that precluded their participation?

No.  The Downtown Working Group consisted of the following individuals: 

• Each member of the Town Board
• Three members of the Planning Board
• Randy Katchis and Steve Tavolacci, who own commercial properties in the Chappaqua business hamlet
• Bill Spade, a local architect

The property owners and architect who volunteered to serve on the Downtown Working Group participated in a purely advisory role. All have strong ties to our community. Randy Katchis lived in Chappaqua for 26 years and formerly served on the Chappaqua Board of Education. Steve Tavolacci is a lifelong resident and local developer. Bill Spade is a 30-year Town resident and has worked on numerous projects in our community, including as a volunteer at the Fuller Center rehabilitation underway at 300 King Street.

The volunteer members of the Downtown Working Group contributed real-world, and subject matter experience to the task of informing the Town’s independent planning consultant, Kimley Horn of New York, P.C. (“KH”), how to tailor the draft Form Based Code zoning legislation to best fit the needs of the Chappaqua business hamlet. Although the Town’s 2017 Comprehensive Plan established the community’s goals for the Chappaqua hamlet, input from these volunteer members helped inform how the Town could achieve its stated objectives through revised zoning legislation for the downtown.

The Downtown Working Group held its kick-off meeting on May 23, 2019, at which time each of its volunteer members explained their professional backgrounds, shared experiences living in the Town, and with respect to Randy Katchis and Steve Tavolacci, disclosed their property ownership in the business hamlet. Each meeting of the Downtown Working Group was videotaped and can be viewed here: Chappaqua Forward.

Residents who serve on advisory boards like the Downtown Working Group do not fall within the definition of Town “officers” or “employees” set forth in the Town’s Ethics Code. See Town Code § 9-2. The provisions of the Town Ethics Code are inapplicable to residents who volunteer their time to serve on such advisory boards.

Not only was there no conflict of interest in having these residents as members of the Downtown Working Group, the Town Attorney has confirmed that their involvement was entirely consistent with SEQRA’s objective of ensuring that interested parties are appropriately engaged in the consideration of a proposed action.

10. Does the Form Based Code allow the entire Chappaqua Hamlet to be 5 stories in height?

No. The draft of the Form Based Code included in the DGEIS allows up to 5 stories in only a few strategically selected areas of the Chappaqua Hamlet. Building height is one of the areas under review, and the proposed building heights in the Form Based Code are subject to change during the review process.

11. Why does the DGEIS study a "full build out" or "buildout scenario" of the Chappaqua Hamlet under the Form Based Code?

The “full build out” or “buildout scenario” studied in the DGEIS for the Form Based Code represents the maximum amount of development that could reasonably be expected to occur in the hamlet under the proposed legislation. In order for the “full build out” to be realized many factors must align. Some of these assumptions include the assemblage of many small parcels of land for redevelopment, the provision of adequate on-site parking and retention of some lots in their existing condition due to physical or other limitations on redevelopment such as the post office, fire house, Verizon communications building, Greeley House, school, and town recreation fields. Parking demand was also a factor in determining the buildout scenario. Pages 2-22 through 2-24 of the DGEIS provide additional information on the scope of the buildout scenario. The reason a “full build out” of the Form Based Code is studied, even though that full scope of development may never occur, is that under the State Environmental Quality Review Act (SEQRA) the Town Board is obligated to analyze the environmental impacts that may result from the adoption of the Form Based Code. Since the Form Based Code is legislation and not a development project, the DGEIS includes a conceptual study of what could occur if all the assumptions, some of which are listed above, were to come to fruition in order to study the environmental impacts of the proposed Code.

12. Does the FBC mean development on Town-owned land?

No. The Form Based Code proposes to rezone Town-owned land from an “industrial” zoning designation to a zoning designation that provides an opportunity for the Town Board to consider the sale or lease of Town-owned land for future development.  No development of Town-owned land is currently proposed.

13. If the Town Board determines in the future to sell or lease Town-owned land for a development project, will I have and opportunity to vote on whether that should occur? Will there be a referendum?

The current Town Board has no intention of selling or leasing Town-owned land without considering public opinion.  New York State Town Law §64 provides that the decision of a Town Board to sell or lease Town-owned land is subject to a permissive referendum.  A permissive referendum is a process by which members of the public may petition the Town Board to require the matter be submitted to a public vote.  In the event a valid petition is timely submitted, the decision of the Town Board does not take effect unless and until it is approved by a majority of the qualified voters.  New York State Town Law §94 provides that where a Town Board decision is subject to a permissive referendum, the Town Board has the authority to submit the matter to a referendum on its own motion, without waiting for a petition to be filed seeking a referendum.  Therefore, in the event the Town Board decides to sell or lease Town-owned land the public will have an opportunity to petition the Town Board to hold a referendum, or the Town Board can decide on its own motion to submit the matter for a referendum.  

14. Has the Town been in contact with other public entities on this proposal (e.g. the school board)?

Yes, the Town has been in ongoing discussions with the Chappaqua Central School District, including the Superintendent, and staff in regards to the Form Based Code – specifically in terms of projecting potential changes in the number of pupils attending Chappaqua schools. The school district was also involved with the 2017 Comprehensive Plan.

15. Once the Form Based Code is in place, what are the next steps for the Town to attract interest in potential opportunities for development?

Market conditions will dictate potential opportunities for smart development within the hamlet. The Form Based Code, however, provides a critical step to allow for the Town to create opportunities for smart development and, maximize potential use consistent with the goals of the community as set forth in the Comprehensive Plan.

16. Does the Town plan to use eminent domain to buy and consolidate privately owned, small contiguous parcels?

No.  The power of eminent domain is a seldom used tool of government.  Eminent domain refers to the right bestowed upon the government by the Fifth Amendment to take private land for a public purpose with the payment of just compensation.  The Town Board has no intention of using eminent domain in the Chappaqua Hamlet.  Instead, private market forces will dictate whether smaller contiguous parcels are assembled and consolidated to allow for redevelopment at the maximum potential permitted under the Form Based Code.

17. How does the public notification of a proposed development project change with the Form Based Code?

There is a neighbor notification provision within the Form Based Code. The Form Based Code requires notification to be given to owners of property abutting the proposed location of a development project.  All abutting property owners will be notified of the proposed project and invited to come in and speak to the Development Department about the project.  The notification must include a project description, the project’s location on the subject lot, and elevations.  The intent is for the Development Department to engage with the abutting property owners and serve as a conduit through which project changes may be discussed with the applicant to effectuate reasonable modifications to the project to address neighbor concerns.  Members of the public who are not abutting property owners may also submit comment to the Development Department for consideration.

Under today’s existing Town Code, projects which are subject to a building permit or other purely administrative review are not subject to public comment.  If notification occurs as a result of the permit process, there is no formal means by which public comment is considered in the review of the permit application.  For example, unless a property is located within a conservation subdivision or is subject to some other restriction, a residential property may be improved with a swimming pool without opportunity for neighbors – near or far – to comment on that permit application.  When the scope of the development triggers a requirement for site plan, special permit, subdivision, wetland permit, steep slopes, or variance approvals from the Planning Board or Zoning Board of Appeals, there is a formal public hearing process by which members of the public may submit written or verbal comment to the appropriate land use board for consideration. These comments inform the board’s review of the application but, by law, the board’s decision cannot rely solely on generalized community support or opposition to a project.  Instead, the board must review the information, studies, comments and professional reports submitted in favor of and in opposition to the project and apply that information to the standard of review set forth in the Town Code.  The Form Based Code maintains opportunity for public comment and maintains the purpose for which public comment is used in the application review process, but it changes the forum for providing comment. The project review and approval process is one of the areas under review, and is subject to change  

18. Why is this the appropriate time to adopt a Form Based Code for Chappaqua?

Vacant storefronts exist throughout the hamlet.  While vacancies may have increased due to the pandemic, the vacancy rate prior to the pandemic was unacceptably high in part due to the popularity of online shopping.  The 2017 Comprehensive Plan recognized this and called for a revitalization of the Chappaqua Hamlet.  That Plan also identified the need for the community to diversify its housing type from a single-family community to one that offers more options for our younger and older residents.  The Comprehensive Plan also called for protecting our single family neighborhoods and targeted new development to locations where we had the infrastructure to support it. The Chappaqua Hamlet has a commuter train station within walking distance to the entire hamlet and it contains sewer and water infrastructure.  It is the perfect place to meet the goals of the Comprehensive Plan.  Re-writing our zoning code allows us the ability to consider the form of future development- something that we can’t do in the same way under the existing zoning code.  Form is an essential component of keeping our community character.  Combining the form with a use based code enables us to embrace elements of regulation that are not currently contained in our existing zoning code along with typical controls regarding uses  we want to see in our hamlet.  The Form Based Code will allow residential uses on the first floor of buildings within certain areas of the hamlet.  This will help put more feet on the street, which will create more people living and walking around our downtown area to sustain the businesses that are shuttering today. A form-based code provides an opportunity for us to shape the future of the Chappaqua Hamlet.

19. Does Chappaqua have the water and sewer infrastructure to handle future development?

The DGEIS included an analysis of water supply and wastewater treatment.  As analyzed in the DGEIS, the existing infrastructure for both water supply and wastewater is adequate in that it could handle the demand generated under the build-out scenario.

20. What assumptions were the foundation of the Form Based Code?

The Chappaqua Hamlet is an existing built environment.  As such special considerations formed the basis of the proposed Form Based Code (FBC).  These considerations included a policy directive that all new development under the proposed FBC must provide for parking.  It is important to the Town Board that the FBC result in no net loss of existing municipal parking.  It is also important to note that the proposed FBC includes revised parking standards based on updated industry standards, which is different than what is in the existing zoning code.  Another consideration in forming the standards of the proposed FBC was consideration of the high groundwater table in the Chappaqua Hamlet.  This means that there is an understanding that new development will not be able to utilize underground parking areas.

21. Can the public vote on the Form Based Code?

No. Residents have suggested the Town of New Castle’s proposed local law to adopt the Chappaqua Hamlet Form-Based Code be subject to a referendum of the voters. As confirmed by the Town Attorney, the local law adopting the Chappaqua Hamlet Form-Based Code cannot be adopted subject to a referendum. The general rule in New York State is that there can be no referendum in the absence of constitutional or statutory authority. In this case, there is no statutory authority that would allow the Town Board to call a referendum regarding the proposed local law, nor is there any provision in the law (Municipal Home Rule Law §§ 23 and 24) that would allow a group of voters to petition that the issue be put up for a vote.

In response to certain comments received during the Town Board’s public hearing, New York State Municipal Home Rule Law § 24(2)(a) does not authorize a permissive referendum on the FBC.  That provision states that “a local law shall be subject to a referendum on petition if it…[d]ispenses with a provision of law requiring public notice or hearing as a condition precedent to official action.”  Here, the FBC does not dispense with existing requirements in the Town Code for public hearings associated with site plan or special permit applications under Sections 60-440(C) and 60-430(B) of the Town Code, respectively.  Those requirements will remain, but most applications processed under the FBC will not be subject to site plan or special permit review under Sections 60-440(C) and 60-430(B).  A separate review procedure is proposed to be established for development applications in the hamlet which allows for public comment, but does not require a public hearing.  For further detail, please find the Town Attorney’s memorandum here.

22. Can the Town conduct a "public opinion poll" or an advisory (non-binding) referendum of the electorate with respect to the proposed Form-Based Code?

No. The Town Attorney advises that, as a rule, a municipality may not conduct a referendum, advisory or otherwise, in the absence of constitutional or statutory authority. Further, according to the New York State Comptroller’s Office, use of taxpayer monies to conduct an advisory referendum is impermissible. See, NYCPTR Opn. No. 88-70.  Conducting or relying upon an informal survey or poll to gauge public support for the proposed legislation would be legally impermissible.  In addition, the SEQRA process has been implemented to gather meaningful public input through a structured process -- and this is the best way to gauge public opinion and to generate actionable feedback. For further detail, please find the Town Attorney’s memorandum here.

23. Do any members of the Town Board have a conflict of interest with respect to the Form Based Code because they own property in the Chappaqua business hamlet?

No.

In assessing whether a municipal official has an interest in some matter requiring his or her recusal, we must look to whether the interest in question can be reasonably viewed as “substantial” and “direct.” In the context of zoning legislation, courts have held that the ownership of real property in an area that will be financially affected by a board’s decision does not require disqualification if other property owners will be similarly affected. See Town of North Hempstead v. Village of North Hills, 38 N.Y.2d 334, 379 N.Y.S.2d 792 (1975); Segalla v. Planning Bd. of Town of Amenia, 204 A.D.2d 332, 611 N.Y.S.2d 287 (2d Dep’t 1994). Such interests are deemed too remote to constitute a disqualifying conflict of interest.

Courts also recognize that public policy should not discourage municipal officials from being property owners. See Clear Skies over Orangeville v. Town Bd. of Town of Orangeville, 2010 WL 7357949, at *18 (Sup. Ct. Wyoming Cty. 2010).

The opinion issued by the New York State Attorney General’s Office to Jerome J. Levenberg, Esq., the Village Attorney for the Village of Cedarhurst, 2002 N.Y. Op. Att’y Gen. 1028 (Mar. 4, 2002), further illustrates this point. In that matter, the AG opined that a trustee who owned commercial property in the Village’s Business Improvement District (“BID”) was required to recuse himself from voting on the BID budget only if he had a “substantial, personal interest in the outcome of the BID budget vote.” Such interest would exist if the trustee “owned a considerable portion of the commercial property within the BID” or a proposed improvement was to be closely situated to, or have a direct nexus with, the trustee’s property, such that the trustee’s interests were more likely to be affected than those of other BID property owners. However, the mere fact that a trustee owned property in the BID, by itself, did not set forth facts demonstrating recusal was required.

The same is true here. One Town Board member owns a residential property that lies within the 72-acre study area that was initially identified by the Town Board for possible rezoning. Based upon the authorities cited above, there is no basis to conclude that this Town Board member has a disqualifying interest with respect to consideration of form-based zoning legislation for the Chappaqua business hamlet.

This issue was originally addressed by the Town Board on October 26, 2020, at which time Town Counsel provided this same guidance to the Board. Any ongoing attempts to claim that a Town Board member has a conflict of interest are baseless.

24. Did the members of the Town’s “Downtown Working Group” write the Form Based Code?

No.  The Form Based Code was drafted by an independent consulting firm, Kimley Horn of New York, P.C. (“KH”), with support from a team of planning professionals.   An organizational chart showing the team that KH assembled for this project is shown below: 

The Town Board engaged KH through its standard public procurement process, which involved circulating a Request for Proposals and conducting a series of interviews before awarding a contract to KH. To learn more about KH, visit their website.

The Downtown Working Group was established to provide strategic guidance and input to KH so it could draft zoning legislation tailored to the needs of our downtown business hamlet. KH’s team met with the Downtown Working Group several times in 2019 and once in early 2020. Each meeting of the Downtown Working Group was videotaped and can be viewed here: Chappaqua Forward.

• Each member of the Town Board
• Three members of the Planning Board
• Randy Katchis and Steve Tavolacci, who own commercial properties in the Chappaqua business hamlet
• Bill Spade, a local architect

The property owners and architect who volunteered to serve on the Downtown Working Group participated in a purely advisory role. All have strong ties to our community. Randy Katchis lived in Chappaqua for 26 years and formerly served on the Chappaqua Board of Education. Steve Tavolacci is a lifelong resident and local developer. Bill Spade is a 30-year Town resident and has worked on numerous projects in our community, including as a volunteer at the Fuller Center rehabilitation underway at 300 King Street.

Collectively, the members of the Downtown Working Group brought over 100 years of experience living in the Town of New Castle to the task of informing KH what the Town hoped to accomplish through the adoption of amended zoning legislation for the Chappaqua business hamlet.

The Town’s goals for revitalizing the Chappaqua business hamlet are set forth in the Comprehensive Plan adopted by the Town Board in 2017. The Town’s Comprehensive Plan was the culmination of a 4-year effort involving intensive study and community input, as summarized in this timeline:

The property owners and architect who volunteered to serve on the Downtown Working Group participated in a purely advisory role. All have strong ties to our community. Randy Katchis lived in Chappaqua for 26 years and formerly served on the Chappaqua Board of Education. Steve Tavolacci is a lifelong resident and local developer. Bill Spade is a 30-year Town resident and has worked on numerous projects in our community, including as a volunteer at the Fuller Center rehabilitation underway at 300 King Street.

Collectively, the members of the Downtown Working Group brought over 100 years of experience living in the Town of New Castle to the task of informing KH what the Town hoped to accomplish through the adoption of amended zoning legislation for the Chappaqua business hamlet.

The Town’s goals for revitalizing the Chappaqua business hamlet are set forth in the Comprehensive Plan adopted by the Town Board in 2017. The Town’s Comprehensive Plan was the culmination of a 4-year effort involving intensive study and community input, as summarized in this timeline:

25. What is the “New Direction” announced by the Town Board for the Form Based Code? What does that mean and what happens next?

On February 23, 2021, the Town Board voted to close the public hearing on the DEGIS for the Form Based Code. At the same time, the Town Board announced that based upon community input, it planned to limit the application of the Form Based Code to a relatively small area of the Chappaqua hamlet – the North Greeley corridor, from the traffic light at the intersection with King Street to Bischoff Avenue. This area includes the former Rite Aid space that has been vacant for over 2 years.

By making this announcement, the Town Board signaled that applying the Form Based Code to the entire study area under review is no longer an alternative it will pursue. Accordingly, the Town Board will not be rezoning any public property outside the North Greeley corridor, such as the train station parking lot. Similarly, the Town Board will not be rezoning the South Greeley area of the downtown or the properties on King Street. Having taken these options off the table, the Town Board will instead target a single area of the downtown for zoning changes that are designed to facilitate redevelopment and revitalization.

The next steps in this process require the completion of the SEQRA process and the preparation of revised zoning legislation that aligns with the Town Board’s objective to rezone only the North Greeley corridor.

With respect to SEQRA, the Town Board will be working with its professional consultants to prepare a Final Generic Environmental Impact Statement, or “FGEIS.” The FGEIS will respond to comments made during our public hearing on the DGEIS and may include additional analyses and explanations. All substantive comments on the DGEIS will be listed and addressed in the FGEIS.

The last step in the SEQRA process will be the preparation of a Findings Statement. The Findings Statement will evaluate whether the proposed action (rezoning) will avoid or minimize adverse environmental impacts identified in the DGEIS/FGEIS and balance those impacts against social, economic, and other considerations.

The other step that the Town Board will pursue over the upcoming months involves revising the draft Form Based Code legislation not only to focus on the North Greeley corridor, but take into consideration the public comments and input from our public hearing on the DGEIS. With respect to the legislation, the Town Board will be addressing matters such as building heights, affordable housing criteria and leveraging the expertise of our Planning and Architectural Review

Boards for larger projects that emerge along the North Greeley corridor. Any such changes to the legislation will be subject to further public input and ultimately a public hearing.

26. If the Town Board is limiting the Form Based district to North Greeley, why will the FGEIS and SEQRA Findings Statement be completed for the entire study area?

Completion of the SEQRA process is a legally required step before any zoning changes can be enacted by the Town Board. For that reason alone, the SEQRA process that the Town Board started in January 2020 must continue and be completed. But there is another, broader reason for completing the SEQRA review on the entire study area.

The public hearing conducted on the DGEIS was hugely successful in eliciting public comments and input from residents and interested agencies such as the New Castle Planning Board and the Chappaqua Central School District. The Town Board received comments on many important issues and challenges facing our community, such as the need to create new housing opportunities and better respond to trends (post Covid-19 and otherwise) impacting the demand for retail goods and services. Those issues are relevant to the entire study area, not just the North Greeley corridor. The Town Board wants these questions answered!

It is perfectly appropriate for residents to have different opinions about changing our downtown. Some residents have advocated for building a Rec Center in the downtown, while others would like to have more housing options for empty nesters. Some residents want to see nothing changed at all. Regardless of your point of view, we all should be able to agree that objective, reliable data is essential to informed decision-making by our elected officials.

Completing the SEQRA process on the entire study area will provide the Town Board and residents with fact-based information and analyses that will be invaluable as we continue the dialogue over revitalizing our downtown. Our goal is to build a foundation for future planning and zoning decisions throughout the study area, without committing to any specific course of action at this time beyond the North Greeley corridor. By completing the SEQRA process on the entire study area, the community will have a solid understanding of the environmental, social and economic implications of encouraging redevelopment through rezoning.

We will keep the community updated on these efforts as we continue to move Chappaqua Forward.

27. Can the Town lawfully regulate the number of bedrooms that would be permitted within new apartment units?

Yes, the Town can.

The Chappaqua Board of Education has questioned whether the Town can lawfully regulate the number of bedrooms in multi-family housing that could be developed in the Chappaqua hamlet under a form-based zoning ordinance. The answer to this question must start with a brief history lesson. 

In 1972, the owners of a 50-acre parcel of property abutting Route 117 and Old Farm Road in New Castle requested a zoning change to permit the construction of a condominium development. At the time, the New Castle Zoning Code did not allow multi-family dwellings anywhere in the Town. When the Town Board declined to hold a public hearing on the application, the property owners sued, claiming the Town’s zoning was unconstitutional. 

The resulting litigation eventually reached New York’s highest court, which issued the landmark decision known as Berenson v. Town of New Castle. Decided in 1975, Berenson established a two-part test for determining the validity of any zoning ordinance. The first branch of the Berenson test asks whether a zoning ordinance has provided a “properly balanced and well-ordered plan” for the community. The second branch of the Berenson test asks whether a zoning ordinance has taken regional housing needs into consideration. 

After further litigation, an appellate court held that New Castle’s zoning ordinance flunked the Berenson test. The court explained: 

[The trial court] gave failing grades to the town on both branches of the [Berenson] test, finding first that the existing housing array does not satisfy the present needs of the town and, second, that there exists a regional need for multi-family housing which is not being met by either the Town of New Castle or its neighboring communities in Northern Westchester County.

The appellate court ordered the Town to amend its zoning ordinance to cure its Berenson violation within 6 months. Although the Town had already tried to address the problem by enacting zoning amendments for the Chappaqua busines hamlet to allow more multi-family housing, the court criticized this effort as ineffective and half-hearted. The court observed that the Town’s zoning amendments could not be realistically expected to produce more than 27 units and created the appearance of a municipality being told to “accept a leper colony into its midst.” 

In 1979, the Town enacted new zoning amendments that created several opportunities to develop multi-family housing within the Town, including a zoning district within the Chappaqua business hamlet known as the “MFR-C” district. With respect to density, the MFR-C district established minimum lot area requirements for different dwelling unit configurations:

Dwelling Unit Size	Minimum Gross Lot Area Requirement Per Dwelling Unit (square feet)
Efficiency (studio) apartment	2,200
1-bedroom apartment	3,300
2-bedroom apartment	4,400
3-bedroom apartment	5,500
4-bedroom apartment	6,600

The MFR-C also established density limitations with respect to maximum building coverage (20%) and maximum development coverage (35%). Density incentives were available if the developer provided certain additional features, such as senior citizen or low-to-moderate income housing. 

The constitutionality of the Town’s MFR-C district and other zoning amendments were challenged in a subsequent lawsuit, Blitz v. Town of New Castle. This time, however, the Town passed the Berenson test. 

The MFR-C district remains in the New Castle Town Code to this day, 37 years after Blitz v. Town of New Castle was decided, with the same basic purpose:

[T]o provide the opportunity for and encourage the development of energy efficient multifamily housing in and adjacent to the business center of Chappaqua Hamlet on sites served by public sewer and water and with the most convenient access to shopping, mass transportation, major roads and other community facilities and services. It is the Town’s further objective that the MFR-C District provide both the opportunity for and encourage the construction of housing at relatively moderate prices.

Town Code § 60-410(H)(2). 

Within the Chappaqua business hamlet, the Town Code also allows accessory apartments in the B-R and B-RP Districts – which covers the North Greeley corridor. Notably, the Town Code already restricts residential density within these zoning districts by limiting the number of bedrooms within an accessory apartment. Specifically, the Town Code states --

Individual dwelling may be of the efficiency, studio, one-bedroom or two-bedroom type, but shall not contain more than two bedrooms. The Planning Board shall have the authority to determine which rooms may function as bedrooms for the purpose of determining compliance with this requirement and may include any room other than bathrooms, kitchens, entrance ways, foyers and closets under the definition of a bedroom.

Town Code § 60-410(H)(6)(a) (emphasis added).

As this history shows, the Town’s zoning ordinance has sought to encourage residential development in the Chappaqua hamlet, subject to density restrictions that have included limitations on bedroom configurations for accessory apartments, for decades. Other municipalities, such as the Village of Ardsley, the Town of Chester, and the Village of Ossining, have zoning districts where the number of bedrooms within dwelling units is regulated. In the North Greeley corridor, which is presently the focus of the Town Board’s form-based zoning initiative, the Town’s Zoning Code already establishes a 2-bedroom cap for accessory apartments. 

The Town could establish similar regulations in a form-based zoning code aimed at creating a mix of residential units that aligns with current housing demands. For example, the Town’s 2017 Comprehensive Plan states that “[f]acilitating a range of housing options in or in the hamlets or surrounding areas would provide a diverse set of residents, from young professionals and low-income families to workforce and senior populations, with access to amenities and services.” (Goal 3). In determining how to best achieve this goal, regulating bedroom configurations within residential buildings (e.g., the ratio of 1-bedroom vs. 2-bedroom units) would be a perfectly viable option. 

This should not be surprising or controversial. Zoning is a legislative act for which lawmakers are afforded extremely broad latitude to determine how best to promote public health, safety, and welfare of their constituents. To those ends, zoning ordinances may address housing characteristics such as the mix of bedroom configurations within residential buildings, so long as they do so reasonably and without regulating the familial relationship of the occupants.

28. The Chappaqua Board of Education has asserted that the Town cannot control whether future developments in the Chappaqua hamlet will be subsidized through PILOT agreements. Is this accurate?

No.

Payments in Lieu of Taxes (PILOT) agreements are used to incentivize economic development in areas where it otherwise might not occur. Generally, under a PILOT agreement, a property owner makes fixed payments over a defined period of time rather than pay property taxes. PILOT payments are typically lower than what the property owner would pay if taxed normally.

In a letter to the Town Board dated March 16, 2021 (link), the Board of Education claimed that PILOT agreements are negotiated and controlled by Westchester County and Westchester Industrial Development Agencies (IDAs), and neither the Town nor CCSD would have much say in the matter. This is not true.

As a matter of policy, when it comes to negotiating a PILOT agreement, Westchester County does not play a role. Instead, the County allows the municipality where the project will be located to negotiate the terms of any PILOT agreements. Bridget Gibbons, the County’s Director Economic Development, has explained the County’s policy as follows:

“It is the policy of the County IDA to defer the negotiation of PILOT benefits to the municipality (City/Town/Village) where the Project is to be located. We leave it to their discretion to determine whether they wish to include the school district in their negotiations. Some communities do, others do not.”

The Town of New Castle does not have an IDA and, as previously discussed in public meetings, has no plans to offer PILOTs to developers to incentivize construction in the Chappaqua hamlet.