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LAW OFFICE
Ira M. Emanuel, P.C.
Four Laurel Road, New City, NY 10956 Tel: 845.634.4141 Fax: 845.634.9312
Counsel to E-mail: [email protected] Amy Mele, Esq.
Freeman & Loftus, RLLP www.EmanuelLaw.com Of counsel
TOWN COUNCIL AND PLANNING BOARD TOWN OF CLARKSTOWN
L’DOR
SPECIAL PERMIT REQUIREMENTS COMPLIANCE ANALYSIS
REVISED MAY 17, 2019
The applicant, L’Dor, is an existing assisted living facility located at 156 West Clarkstown Road, New City. It is seeking a zone change from R-40 to R-15 as an initial step toward seeking a special permit to allow an expansion of its facility. The Planning Department has asked the applicant to provide an analysis to show that it can comply with the requirements of the special permit it will seek. The following is based on the requirements of § 290-17.O(a) as of the date of this writing, and on a concept plan prepared by Atzl, Nasher & Zigler, P.C., last revised 04-12-2019. The requirement of the Code is stated first, and the method of compliance follows each requirement. 290-17.O(a) Senior citizen housing, subject to the following conditions: (1) Certification of corporation. A certified copy of the corporation papers of an applicant proposing to construct housing under this subsection shall be supplied to the Town Attorney's office for review and comments for compliance with the purpose and intent of developing dwelling units specifically designed for the needs of persons age 55 or older, including independent, assisted care living quarters and senior citizen congregate housing. Will be supplied as part of post-final compliance. (2) Prohibitions. This subsection does not permit nursing homes, convalescent homes, private proprietary homes, homes for the aged or any other facilities regulated and licensed by the Department of Health under the Public Health Law of the State of New York, except for Assisted care living quarters and Senior citizen congregate housing. Facility is “Assisted care living quarters”.
L’Dor – Compliance Analysis Page 2 May 6, 2019 rev. May 17, 2019 (3) Annual report. The applicant and/or owners of a development under this subsection shall file with the Town Building Inspector, before the first Monday in December of each year of operation, a form affidavit supplied by the Town Building Inspector, for compliance with all provisions of Subsection O(A)(4) and (8) and any state or federal filing requirement, if any. Any delay in filing of such form affidavit shall constitute a violation of this special permit, and, further, any real estate tax abatement provided under this subsection shall immediately cease. Will be supplied during facility operations. (4) Tax abatements/payment in lieu of taxes (PILOT). (a) Any tax abatement/PILOT afforded under this subsection shall be for the purpose of reducing rent payments for housing for eligible senior citizens. (b) To continue the eligibility for tax abatement/PILOT under this subsection, prior to renting any facility, the applicant, sponsor and/or owners of any development under this subsection shall contact the Town of Clarkstown or its designated qualified agency for a current list of names and addresses of eligible senior citizens desiring housing for the elderly and give these eligible senior citizens priority in the rental of these facilities according to the length of years of residency in Clarkstown. (c) Anything to the contrary notwithstanding hereinabove, eligibility for any housing provided shall be pursuant to the regulations of the United States Department of Housing and Urban Development, in the event that financing is obtained pursuant to those programs, or other applicable federal, state and local government programs. No determination has yet been made with respect to PILOT programs. (5) Construction requirements. All building and dwelling units constructed under this subsection shall be constructed in accordance with the New York State Building Construction Code and conform to any additional requirements of the state or federal programs providing for housing for the elderly, whichever is applicable, and shall be inspected and approved by the Building Inspector. There shall be no more than 200 dwelling units constructed at any one site. Will comply. 79 beds are proposed.1 (6) Community space. In order to qualify under this subsection, the applicant or sponsor of housing for the elderly shall provide a community space at least equal to 10% of the floor area of each building, including lounges, workshops, game rooms and other designed facilities for the elderly, except space for medical facilities or dispensaries. Complies. The building has a floor area of 47,082 sf. Of this, 4,710 sf is to be provided as community space (4,702 sf is required).
1 All statements pertaining to compliance with site requirements are based on a Concept Plan prepared by Atzl, Nasher & Zigler, P.C., last revised 04-12-19, previously submitted to TAC.
L’Dor – Compliance Analysis Page 3 May 6, 2019 rev. May 17, 2019 (7) Permitted general accessory uses. (a) Cafeterias or dining halls. (b) A medical dispensary. (c) Storage or tool sheds. Noted. (8) Rental requirement, tenant priority and availability. (a) Every unit shall be a rental unit. The sale of any individual unit shall be strictly prohibited. Complies. (b) At least 10% of the units shall be affordable units, except for assisted-care living quarters. Facility is exempt: assisted-care living quarters. (c) To qualify for an affordable unit under this subsection, prior to renting any facility, the applicant, sponsor and/or owners of any development under this subsection shall contact the Town of Clarkstown or its designated qualified agency for a current list of names and addresses of eligible senior citizens desiring housing for the elderly and give these eligible senior citizens priority in the rental of these facilities according to the length of years of residency in Clarkstown. N/A – see (b) above. (d) Affordable units shall be indistinguishable in character and construction from other units with regard to size, standard fixtures and appliances, and amenities, and have the same rights and responsibilities of any other unit in the development, excepting the specific provisions of this section. The ratio of studio apartments and one-bedroom and two-bedroom affordable units shall be equal to the ratio for market-rate units. N/A – see (b) above. (e) Every renter of an affordable unit shall certify, on a form prescribed by the Town Attorney's office, that such unit is the primary place of residence. Renters of affordable units shall not be permitted to sublet said units to other parties, this being enforced by a lease restriction. No property owner shall rent any affordable unit without first obtaining such verified certificate from the renter. N/A – see (b) above. (f) The landowner and developer shall file a declaration with the Rockland County Clerk at the time of site plan approval identifying the units which are affordable units, and restricting their future rental price under the provisions of this section. The declaration shall include a provision requiring that every lease for an affordable unit shall include the
L’Dor – Compliance Analysis Page 4 May 6, 2019 rev. May 17, 2019 following paragraph to inform all future sellers and buyers or renters that these units are affordable units subject to the provisions of this section: "This dwelling unit is for use by income-eligible families pursuant to a special program under the Town of Clarkstown Zoning Local Law. Its future rent must be to persons who qualify with the income requirements and at a price in accordance with the program at the time of execution of the lease or any renewal thereof, to be verified by the qualified agency referred to in Subsection O(A)(8)(g). The Town of Clarkstown shall have the right to approve or disapprove the subsequent rental of this unit based upon the income of the proposed renter and the requirements of Subsection O(A)(8)(c)." N/A – see (b) above. (g) The Planning Board shall, as a condition to approval of an application, require the applicant to contract with a qualified agency as designated by the Town Board to administer and oversee the rental of affordable units. N/A – see (b) above. (9) Minimum accessory off-street loading berths (subject to Article VI). (a) Open loading berths are permitted, provided that they are not located in the required side yards and are not adjacent to a residential district or residential use permitted by right. No loading area shall be permitted to locate within 50 feet of any property line, and this setback shall be screened. Complies. The only loading area is for kitchen deliveries near the southwestern corner of the proposed new building, approximately 130 feet from the nearest residential lot (to the South). Screen will be provided. (b) Completely enclosed loading berths are permitted in all yard areas except the front yard; however, no loading berth, loading area or driveway shall be located within 25 feet of any property line. Will comply if enclosed loading berths are needed. (c) All loading berths, loading areas and driveways shall be illuminated with indirect lighting and shall have access only from a major or secondary road as classified on the Official Map of the Town of Clarkstown. Complies. The only access is from West Clarkstown Road, a Rockland County secondary road. (10) Required off-street parking (subject to Article VI).
Senior Citizen Housing and Congregate Housing
Dwelling Unit Type Parking Space Studio apartment 1.0 One-bedroom 1.0 Two-bedroom 1.5
L’Dor – Compliance Analysis Page 5 May 6, 2019 rev. May 17, 2019
Senior Citizen Housing and Congregate Housing
Dwelling Unit Type Parking Space Superintendent 2.0
Assisted Care Living Quarters Parking Space Per bed 0.55
Complies. 44 parking spaces are provided for 79 beds in Assisted Care Living Quarters (79 x 0.55 = 43.5). (11) Additional regulations. (a) No trucking shall be permitted into a site from a collector or local street. No shipping or receiving of goods shall be permitted between the hours of 11:00 p.m. and 7:00 a.m., nor on Sunday. Complies – site access is limited to West Clarkstown Road, a Rockland County secondary road. (b) Minimum lot area shall be 180,000 square feet. Assemblage of properties or parcels not in the same ownership at the time of adoption of this section so as to meet minimum lot area requirements is prohibited. [REVISED May 17, 2019] The total parcel to be used for Senior Housing consists of
two existing tax lots and parts of two other existing tax lots:2 as of March 4, 2014. That date, therefore, is the operative date to determine assemblages.
2 Of the four lots, only two, Lots 3 and 4, are the subject of the zone change application. Lots 26 and 20 are already zoned R-15. 3 Current owner.
S-B-L Net Lot Area (sf) 50.12-1-3 (whole lot) 40,532 50.12-1-4 (whole lot) 77,865 50.12-1-26 (partial lot) 204,186 50.08-2-20 (partial lot) 918
The lots are shown on the accompanying map (Exhibit 1).
The senior housing special permit was created by Local Law No. 2 of 2014, adopted
As of the date of adoption, the ownership of the four lots was:
S-B-L Owner Deed Information 50.12-1-3 Joy Builders, Inc. 12/2/1997; Inst. #1997-50806 50.12-1-4 Elliot Markowitz3 4/13/2001; Inst. #2001-17473 50.12-1-26 Joy Builders, Inc. 11/26/1997; Inst. #1997-50809 50.08-2-20 Joy Builders, Inc. 11/26/1997; Inst. #1997-50807
L’Dor – Compliance Analysis Page 6 May 6, 2019 rev. May 17, 2019 Lots 3, 26 and 20 were in the same ownership and are contiguous. They were conveyed from Joy Builders, Inc., to New City Square Property, LLC, by two deeds, each dated January 5, 2015, and recorded as Inst. #2015-00001642 (Lots 3 and 20) and #2015-00001641 (Lot 26), respectively. Lot 3 was subsequently conveyed by New City Square Property, LLC, to petitioner Rockland ALP Realty, LLC, by deed dated December 20, 2017 and recorded as Inst. # 2018-00002368. Lots 26 and 20 are still owned by New City Square Property, LLC as of this writing. Portions of Lots 26 and 20 are under contract to be sold to an entity controlled by L’Dor. Excerpts of a title report issued by National Granite Title Insurance Company in connection with the sale of the properties to New City Square Property, LLC are annexed as Exhibit 2. Five parcels were conveyed simultaneously. The title report identifies Lot 26 as Parcel 2, Lot 3 as Parcel 3, and Lot 20 as Parcel 5. Copies of the respective 1997 deeds are also included in Exhibit 2. For purposes of the Code, however, the relevant information is whether there was a parcel (which could consist of more than one tax lot) “in the same ownership” as of March 4, 2014 which “[met] the minimum lot area requirement”, since assemblages of property “not in the same ownership” after that date, for the limited purpose of “meet[ing] minimum lot area requirements is prohibited.” As shown above, Lots 3, 26, and 20 were “in the same ownership”, that of Joy Builders, Inc., on the relevant date. The total net lot area of Lots 3, 26 and 20 is 245,636sf, which far exceeds the minimum lot area of 180,000sf. Thus, no assemblage was needed to “meet the minimum lot area requirements” of the Code on March 4, 2014. Lot 3 was subsequently sold to petitioner Rockland ALP Realty. This left two lots, 26 and 20, with a total net lot area of 524,353 sf.4. Only a portion of these two lots is to be devoted to the senior housing use: Lot 26: 204,186 sf (net) Lot 20: 918 sf (net) Thus, the remaining portion of Lot 26, by itself, has more than the required 180,000sf of net lot area to qualify for senior citizen housing. Nothing in the Code prohibits adding land beyond the minimum lot area at any time. Nothing in the Code prohibits reducing the size of a lot, so long as it does not go below the required 180,000 sf.
4 The entire Lot 26 has a gross lot area of 657,596sf and a net lot area of 520,868sf. The entire Lot 20 has a gross/net lot area of 3,485sf.
L’Dor – Compliance Analysis Page 7 May 6, 2019 rev. May 17, 2019 Since Lot 26 exceeded the minimum lot area at the time of adoption (March 4, 2014), and will still exceed the minimum lot area under the L’Dor proposal, it is eligible for senior citizen housing. Adding additional land is not prohibited, since that additional land is not needed to “meet the minimum lot area requirement.” (c) Minimum front lot line shall be 300 feet along a state or county major or secondary road. Complies. (d) Access roads. [1] Ingress and egress roads shall be from a major, secondary or collector road. A variance from this provision shall be deemed a use variance. Complies. Ingress and egress is limited to West Clarkstown Road, a Rockland County secondary road. [2] No roads or driveways shall be located within 100 feet of any street intersection. Complies. According to the Rockland County Geographic Information System (GIS) maps, the nearest intersection to the North, Featherly Court, is approximately 268 feet away from the nearest lot line of the subject. The nearest intersection to the South, West Burda Place, is approximately 256 feet away from the nearest lot line of the subject. (e) Floor area ratio shall be 0.50. Complies – the provided FAR is 0.15. (f) Maximum principal building(s) coverage shall be 33%, and maximum lot coverage, which includes principal building(s) coverage, shall be 50%. Complies – the provided principal building coverage is 7% and the provided overall development (lot) coverage is 18%. (g) Maximum density permitted shall be 20 dwelling units per acre for developments constructed and maintained on a nonprofit or limited-profit basis by an organization or its wholly owned subsidiary incorporated pursuant to the provisions of the laws of the State of New York or 16 dwelling units per acre for any for-profit developments. A variance from this provision shall be deemed a use variance. Complies – the provided density is 10.6 units per acre. (h) No more than 50% of the units shall be two bedrooms. No units shall be more than two bedrooms with the exception of one superintendent's apartment per complex which shall consist of no more than three bedrooms. The term “unit” is not defined in the Zoning Code. The nearest term is “dwelling
unit”, defined as “a building or part thereof containing complete housekeeping
L’Dor – Compliance Analysis Page 8 May 6, 2019 rev. May 17, 2019
facilities for one family.”5 A determination is needed from the Building Inspector as to what constitutes a “unit” in an assisted living facility where no unit has kitchen facilities. For purposes of determining density, parking requirements, etc., the applicant has taken a conservative approach and valued each bed as a unit. However, this approach may not be appropriate for the requirements of this subdivision (h).
(i) Yard requirements.
Road Classification
Major (feet)
Secondary (feet)
Collector/Local (feet)
Front yard 100 75 50 Complies. West Clarkstown Road is a secondary road. The provided front yard is 75 feet. Yards adjacent to a district line or use permitted by right or special permit.
District Classification
Residential (feet)
Commercial (feet)
Industrial (feet)
Side yard 50 100 200 Rear yard 100 200 300
Complies. The provided side yards and rear yards exceed the required dimensions. (j) Maximum building height shall not exceed 35 feet within the MF-1, MF-2, MF-3, RG-1, RG-2, R-10, R-15 and R-22 Zoning Districts and shall not exceed 45 feet within the PO and CS Zoning Districts, except within those areas designated on the Zoning Map as Hamlet Center, where the maximum building height shall not exceed 35 feet. Complies. Proposed height is 35 feet. (k) Minimum distance between buildings shall be no less than the height of the highest building. Complies. Only one building is proposed. (l) Minimum recreation space shall be 200 square feet per dwelling unit set aside for active recreational uses for the senior citizens. Complies. At 79 beds, 15,800 sf of active recreation space is required; 16,000 sf is proposed.
5 § 290-3.
L’Dor – Compliance Analysis Page 9 May 6, 2019 rev. May 17, 2019 (m) (Reserved) (n) (Reserved) (o) The total aggregate number of Senior Citizen Housing units allowable under the Planning Board special permit pursuant to this section shall be no more than 700. The Town Board may, by resolution passed by a super-majority vote after a public hearing, increase the total number of senior citizen housing units. No such increase shall take place until at least one year after the final Planning Board approval of the initial 700 units. Complies. To applicant’s knowledge, there are far less than 700 units of Senior Citizen Housing approved as of the date of this writing. (p) Dwelling units shall be air conditioned with individual thermostatic controls for heating and air conditioning. Will comply. (q) All dwelling units shall incorporate design features, to the maximum extent practical, which ensure the safety and convenience of the residents, including, but not limited to, elevators, grab-bars, nonscalding faucets, water-impervious nonslip floors, flush thresholds and wheelchair-accessible doorways. Will comply. (r) If pets are permitted, specific pet-walking areas designated and located so as to prevent nuisance and annoyance or health hazards to the residents and/or abutting property shall be provided. No determination has been made with respect to pets. If permitted, will comply. (s) Elevators shall be able to accommodate a gurney and emergency crew and be located closest to handicapped-accessible units. Will comply. (t) Entrance canopies shall be no lower than 14 feet so as to accommodate buses and emergency vehicles. Will comply. (u) All dwelling units shall be designed, constructed and inspected in accordance with the New York State Building Code and Chapter 109 of the Town Code. Will comply. (v) One-bedroom dwelling units shall be a maximum of 900 square feet, and two-bedroom units shall be a maximum of 1,200 square feet.
L’Dor – Compliance Analysis Page 10 May 6, 2019 rev. May 17, 2019 Will comply. Dated: May 6, 2019 Rev. May 17, 2019 New City, New York ____________________________ Ira M. Emanuel, P.C. Attorneys for applicant
