June 24, 2013

Planning Board Town of Pittsford 11 South Main Street Pittsford, New York 14534

Re:

Kay Property Concept Subdivision - 55 Mitchell Road

Dear Board Members: We are writing, as attorneys for various property owners on Mitchell Road (including the Altiers, Mrs. Wells and Mrs. Knauf) that oppose the current concept plan (Concept Plan) for the proposed residential subdivision (Project) for the Kay property at 55 Mitchell Road (Property). Your attorney, Mr. Williams, asked me to summarize some of the comments I made at the last meeting of the Planning Board, so I am doing that by this letter, and also providing supporting legal citations. Overall, the current Concept Plan is far too intense for its setting, and fails to comply with the new Residential Neighborhood (RN) Zoning, or protect the unique historic resources on and near the Property. This is a rare opportunity for the Town of Pittsford (Town) to ensure the permanent protection of this landmarked Property and the Mitchell Road area, yet still ensure that Mrs. Kay receives the expected value of her investment. Unfortunately, the Planning Board seems poised to make decisions without adequate information, and set a poor precedent at the first chance to apply the RN Zoning to a significant subdivision. RN ZONING The Context-Based Approach under Town Code 185-16(A) requires that: Lot and bulk standards for the construction, expansion, or alteration of homes and accessory structures are based on their neighborhood context. To determine this context, the average lot dimensions of nearby residentially developed properties have been used. Thus, the Planning Board should look at lot sizes in the area and make a determination as to the average dimensions of nearby residentially developed properties in order to determine the appropriate lot sizes and bulk standards. However, the Board has not done that (at least not in a meeting where the public was present). These calculations must be done in order to make a reasoned decision in this matter.

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Pittsford Planning Board June 24, 2013 Page 2 The lot sizes on Mitchell Road average nearly two acres, and have a median size of nearly an acre and a half. These numbers should be the benchmark for setting the proper lot and bulk standards, rather than using the least common denominator by including smaller lot sizes in other adjoining areas, thereby automatically degrading the most sensitive area. While the law states that the For the convenience of property owners, the Town has established and maintains a database for the district that is on file with the Planning Department and available online, Town Code 185-16(B), this database could not be found on the Towns web site. Please either direct us to the proper website address, or post this information. Town Code 185-16(C) states that Lot and bulk requirements for individual lots are determined by applying the provisions of 185-17 to the lot dimensions derived from applying the provisions of Subsection B of this section. These calculations also do not appear to have been done. The Code requires that new subdivisions in the RN zone should be arranged in a fashion which is in keeping with the surrounding neighborhood context, and in a manner that respects abutting lots in terms of lot area width and depth, as well as yard orientation and street orientation. Town Code 185-19(A). However, the Concept Plan is not in keeping with the Mitchell Road neighborhood, or for that matter Glencannon or Pittsford-Palmyra Road. It looks like a subdivision that could be dropped in any town in this County. No serious effort has been made to preserve an adequate lot for 55 Mitchell Road in order to preserve the landmarked historic farmstead. In order to be compatible with Mitchell Road, the Project should include larger lots to accommodate gracious homes with adequate landscaping and outbuildings. Nor does the layout respect the adjoiners at 45 or 65 Mitchell Road by providing adequate buffer areas. Changes to the plan actually added an extra lot to adjoin 65 Mitchell Road. Furthermore, section 185-19(A)(1) provides: As part of the subdivision approval process, the Planning Board shall determine the appropriate number of allowable lots, as well as the building line, lot area, lot width and lot depth for each new lot, based on the context of the new lots to adjacent existing lots and to one another. Not only have the appropriate determinations been made as far as the number of lots and dimensions, but the context of the new lots to adjacent lots has not been well thought out. This is not only true about the Mitchell Road lots, but also the property at 5427 Palmyra Road, which would be sandwiched between two roads. It is also especially true with regard to Glencannon Trail, where existing houses in a tranquil setting will suddenly have a new road next to their back yards, which will dramatically change the character of those residences. Nor has adequate consideration been given for 55 Mitchell Road, where the tennis court is so close to the proposed adjoining lot that stray tennis balls will pelt the new lot. A variance will be required for the deficient buffer. See Town Code 185-17(I), 185-113(A)(3), (B)(6). Consideration should be given for this lot, since the Kays have indicated their intent to move.

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Pittsford Planning Board June 24, 2013 Page 3 The Planning Board should also ensure that it will stay a private residence, and not be converted to a bed and breakfast or other new use. Town Code 185-19(A)(2) states that Rear yards of new lots should face the rear yards of existing adjacent lots. However, the side yard of Lot 114 adjoins the rear yard of 45 Mitchell Road. Town Code 185-19(A)(5) provides that [a] vegetated buffer may also be required by the Planning Board to create appropriate screening. This is imperative, but has not been provided for with regard to either 45, 55 or 65 Mitchell Road, or any of the other neighboring properties. A wooded buffer should also be provided along the Canal. While Pittsford and other towns normally require greenspace in new developments, it is absent in the Concept Plan. The new zoning provisions are new, and require significant deliberations and calculations, particularly under Town Code 185-17. Thus far the Planning Board has not done the necessary work to properly apply the new RN requirements, and adequately consider and apply the context. Nor does the Concept Plan does not meet these requirements. At the very least, the Board should consider less intense alternative layouts with larger lots and greenspace. SEQRA In addition, the review of the Project so far under the State Environmental Quality Review Act (SEQRA) has been far from adequate. SEQRA requires that consideration must be given at the earliest possible time, ECL 8-0109(a), to the impacts which may be reasonably expected to result from any proposed action. Kirk-Astor Drive Neighborhood Assoc. v. Town of Pittsford, 106 A.D.2d 868, 483 N.Y.S.2d 526, 528 (4th Dept 1984), app. disd 66 N.Y.2d 896, 498 N.Y.S.2d 791 (1985). Therefore, compliance with SEQRA must occur before the agency acts; after-the-fact compliance is of no avail. DiVeronica v. Arsenault, 124 A.D.2d 442, 507 N.Y.S.2d 541, 543 (3d Dept 1986). Accordingly, before an agency can make a significant authorization for an action subject to SEQRA, it must comply with SEQRA. 6 N.Y.C.R.R. 617.3(a); Devitt v. Heimbach, 58 N.Y.2d 925, 460 N.Y.S.2d 512 (1983). Otherwise, the action is invalid. Tri-County Taxpayers Assoc. v. Town Board of Queensbury, 55 N.Y.2d 41, 447 N.Y.S.2d 699 (1982); Taxpayers Opposed To Floodmart, Ltd. v. City of Hornell Industrial Development Agency, 212 A.D.2d 958, 624 N.Y.S.2d 689, 690 (4th Dept. 1995), stay vacd 85 N.Y.2d 961, 628 N.Y.S.2d 48 (1995), app. disd 85 N.Y.2d 812, 631 N.Y.S.2d 289 (1995). As you recognize, approval of the Concept Plan cannot happen until there is SEQRA compliance. However, there is not enough information yet if there ever could be to make a Negative Declaration. The legislative intent is clear that to the fullest extent possible the policies, statutes, regulations and ordinances of the state and its political subdivisions should be interpreted and administered in accordance with the policies set forth in [SEQRA]. ECL 8-0103(6). Accordingly, literal or strict compliance with the SEQRA process has been mandated by the courts, and substantial compliance has been held insufficient. King v. Saratoga Board of

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Pittsford Planning Board June 24, 2013 Page 4 Supervisors, 89 N.Y.2d 341, 653 N.Y.S.2d 233 (1996); Taxpayers Opposed To Floodmart, Ltd. v. City of Hornell Industrial Development Agency, 212 A.D.2d 958, 624 N.Y.S.2d 689, 690 (4th Dept. 1995), stay vacd 85 N.Y.2d 961, 628 N.Y.S.2d 48 (1995), app. disd 85 N.Y.2d 812, 631 N.Y.S.2d 289 (1995); Badura v. Guelli, 94 A.D.2d 972, 973, 464 N.Y.S.2d 98, 99 (4th Dept. 1983). Here, the errors in the EAF, which were not corrected prior to the circulation and designation of the lead agency, must be adequately corrected, and the lead agency redesignated, with all involved agencies consenting, or there will not be literal compliance. See, e.g., Ferrari v. Town of Penfield Planning Board, 181 A.D.2d 149, 585 N.Y.S.2d 925 (4th Dept 1992). This threshold is even lower for Type I actions like the proposal at issue here, since they are more likely to require the preparation of an EIS than other actions. 6 N.Y.C.R.R. 617.4(a); see also Shawangunk Mountain Environmental Association v. Planning Board of Town of Gardiner, 157 A.D.2d 273, 557 N.Y.S.2d 495 (3d Dep't 1990). Thus, for a type I action an EIS is presumptively required. Town of Dickinson v. County of Broome, 183 A.D.2d 1013, 1014, 583 N.Y.S.2d 637, 638 (3d Dept 1992); see also Kahn v. Pasnik, 231 A.D.2d 568, 647 N.Y.S.2d 279, 281 (2d Dept. 1996); In the Matter of OMNI Partners L.P. v. County of Nassau, 237 A.D.2d 440, 654 N.Y.S.2d 824 (2d Dept 1997). Furthermore, while a negative declaration for an unlisted action can be conditioned, 6 N.Y.C.R.R. 617.7(d), a conditioned negative declaration is illegal for a Type I action. Merson v. McNally, 90 N.Y.2d 742, 665 N.Y.S.2d 605 (1997); Ferrari v. Town of Penfield Planning Board, 181 A.D.2d 149, 585 N.Y.S.2d 925 (4th Dep't 1992). Thus, because of the numerous potentially significant environmental impacts, a Negative Declaration would be deficient, and a Positive Declaration requiring an environmental impact statement (EIS) should be required. Furthermore, the lead agency cannot merely set forth a conclusory statement, unsupported by empirical or experimental data, scientific authorities or any explanatory information. Tehan v. Serivani, 97 A.D.2d 768, 769, 468 N.Y.S.2d 402, 406 (2d Dept 1983). The lead agency cannot delegate its responsibilities to any other agency. Penfield Panorama Area Community, Inc. v. Town of Penfield Planning Bd., 253 A.D.2d 342, 350, 688 N.Y.S.2d 848, 854 (4th Dept1999). Nor can the lead agency defer potential impacts for later study. Id.; Bronx Committee for Toxic Free Schools v. New York City School Const. Authority, 20 N.Y.3d 148, 958 N.Y.S.2d 65 (2012). Some of the potentially significant environmental impacts that have not been adequately studied, addressed or mitigated include: Historical Resources. The entire 55 Mitchell Road Property is landmarked, as indicated by the 1997 designation for the entire tax parcel (see enclosed). Further, the Mitchell Road neighborhood is a unique historic resource for the community. The Concept Plan has not minimized impacts on 55 Mitchell to maximum extent practicable. The farmstead can and should be protected by providing a much larger lot that provides a large buffer. Furthermore, without reviewing architectural concepts, the lead agency cannot assess impact upon the historic Mitchell Road area. However, there is no doubt the proposed New England-style suburban layout will be incompatible. We have

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Pittsford Planning Board June 24, 2013 Page 5 assembled documentation on the history of Mitchell https://www.dropbox.com/sh/cyg55uqfi5roskv/WASwpJApDK. Road at

Traffic Volume. Apparently there has been no traffic study, so any findings regarding traffic volume and wait times are just guesswork. Traffic Safety. There has been plenty of testimony regarding the dangerous situation on Palmyra Road. There has been no study of adequate sight distances, or the safety of the offset intersections, or the effect of having Glencannon Trail and the new road so close together. The Board may not have jurisdiction to approve a traffic light or change Palmyra Road, but as lead agency it must evaluate traffic safety. Merely contacting the Department of Transportation is not enough. Agricultural Lands. The development will result in the loss of about five acres of active farmland without any mitigation. Recreational Uses. In spite of the Town Comprehensive Plans policies encouraging trails, inadequate provision is made for improvement of trails or other recreational uses, including the Auburn Trail. Our FOIL request to the Town regarding documentation for the Towns lease of the trail yielded no documents. The Town should take this opportunity to try to secure this trail and improve it. Furthermore, while there is an attempt to provide access for the general public to the Canal Path, the plan may actually result in discouraging use. Other alternatives for trails should be reviewed that will provide first-class access trails and Canal Path access like other towns have. Stream. In spite of unrefuted documentation presented by environmental scientist Thomas Wells, and the obvious presence of a stream across the Property, no study of the impacts of the development on the stream have been provided, or plans to handle the water flow. Wetlands. A wetland delineation must be done so it can be determined where federal wetlands exist, and any impacts can be avoided or mitigated. Drainage. No drainage study has been provided. Given the low terrain, once disturbed the development may act as a sink for stormwater, which will lead to problems with the new homes. Grading. A related issue is grading. There is no study of how much soil must be cut and filled, how that will impact drainage and waterways, and how erosion will be avoided. Flooding. As documented by a study from New York State, there is a severe risk of flooding the entire development from any Canal break or leak, as happened twice in Bushnells Basin, and has happened many times across the State.

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Pittsford Planning Board June 24, 2013 Page 6 Woodlands/Greenspace. There will be a significant loss of woodlands. While these may not be old growth woods, they should be preserved to the extent practical, particularly along the trails used by the public, and the existing farmstead home. Furthermore, at least some of the greenspace should be preserved. Neighborhood Character/Visual Impacts. The proposed Project will severely impact the tranquil rural character of its surroundings, and views of neighbors and the public. Visual impacts should be studied and simulated. Archeology. Although Thomas Wells has documented that a potentially significant archeological site has been identified, no study has been completed of this resource. The lead agency cannot just defer study on this point. Utilities. Almost no information has been provided with regard to extension of sewer and water utilities, including where the utilities are coming from and where they will run. Not only can the Planning Board not segment the impacts of utility extensions, 6 N.Y.C.R.R. 617.3(g)(1), but they must consider the resulting cumulative and growthinducing impacts. 6 N.Y.C.R.R. 617.7(c)(2); Chinese Staff & Workers Assoc. v. City of New York, 68 N.Y.2d 359, 509 N.Y.S.2d 499 (1986).

Given all of these potentially significant environmental impacts, and the obvious lack of information, the Planning Board should not make a Negative Declaration for this Type I action. LOCAL WATERFRONT OVERLAY DISTRICT The Planning Board has not adequately considered consistency with the Local Waterfront Revitalization Program (LWRP). Town Code 185-78.5 requires that the Planning Board either find that the action is consistent with the LWRP policy standards and conditions, or the action cannot be undertaken, unless there are findings that: (a) No reasonable alternatives exist which would permit the action to be undertaken in a manner that will not substantially hinder the achievement of such LWRP policy standards and conditions and design guidelines; (b) The action would be undertaken in a manner that will minimize all adverse effects on such LWRP policy standards and conditions and design guidelines; (c) The action will advance one or more of the other LWRP policy standards and conditions and design guidelines; and (d) The action will result in an overriding Town, regional or statewide public benefit. Town Code 185-78.5(K)(1).

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Pittsford Planning Board June 24, 2013 Page 7 This Project cannot meet these difficult tests. Even if there was SEQRA compliance, the Project is inconsistent with the following policy standards set forth at Town Code 185-78.5(J): (1) Foster a pattern of development in the LWRP area that incorporates the design guidelines contained in Section V of the LWRP and which enhances community character, preserves open space, makes efficient use of infrastructure, makes beneficial use of the waterfront location, and minimizes the adverse effects of development (LWRP Policy 1). (2) Take advantage of the community's location on the canal to provide amenities for residents and visitors; and guide future development so that it complements, not competes with or detracts from, the historic village. (3) Protect water-dependent uses, promote siting of new water-dependent uses in suitable locations and support efficient harbor operation (LWRP Policy 2). (4) Protect existing agricultural lands within the LWRP area (LWRP Policy 3). **** (6) Protect and restore ecological resources, including significant fish and wildlife habitats, wetlands, and rare ecological communities (LWRP Policy 5). (7) Protect and improve water resources (LWRP Policy 6). (8) Minimize loss of life, structures, and natural resources from flooding and erosion (LWRP Policy 7). **** (11) Provide for public access to, and recreational use of, the coastal waters, public lands, and public resources of the LWRP area (LWRP Policy 11). (12) Enhance visual quality and protect outstanding scenic resources (LWRP Policy 12). (13) Preserve historic resources of the LWRP area (LWRP Policy 13). **** (15) All actions must adhere to Town protective measures for environmental resource preservation (the Pittsford Environmental Guidebook and the Greenprint for Pittsford's Future). ****

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Pittsford Planning Board June 24, 2013 Page 8 Thus, the current Concept Plan does not meet the requirements of the Town Code, and a Negative Declaration should not be entertained. We urge the Planning Board to send the applicant back to the drawing board to come up with a plan that is consistent with the law, and compatible with the neighborhood and community. As I have repeatedly stated, we are willing to meet with the Kays, Mr. Ryan and their advisors, as well as representatives of the Town, to try to work out a solution that will be to everyones benefit. Thank you for your consideration. Very truly yours, KNAUF SHAW LLP

ALAN J. KNAUF Encs pc: Richard Williams, Esq. Mr. Richard Altier Mr. Thomas Wells

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