Written by Carol Frank Wednesday, 13 May 2009 18:23
On May 7, the Village of Great Neck Board of Zoning Appeals heard an application from the United Mashadi Jewish Community of America on Steamboat Road for permission to construct a parking lot with 66 spaces on a property they own at 2 Potters Lane. They are asking the board to overturn a decision from the building department that the use is not a permitted use and to give variances to erect a 6-foot stockade fence around the property, use gravel instead of paving material, and eliminate the required 15-foot landscaped buffer while adding lighting fixtures within the 15-foot location.
The meeting began with board member Nick Nabavian disclosing that he is a member of the temple and asking the board’s attorney, Andrew Luskin, if he needed to recuse himself from the proceedings. Board member Norman Namdar also disclosed that while he is not a member of the temple, he has ties to the Mashadi community. In both cases, Mr. Luskin said that he did not think that either situation constituted a “conflict of interest.” Board Chair Dennis Grossman stated that both members are “equitable, fair and honorable” and that in some cases, a member of an organization in question, may be “more harsh” than someone unaffiliated. With that, the board proceeded to hear from the temple’s attorney, Peter Mineo.
It is Mr. Mineo’s contention that the lot, if converted to a parking lot for the temple, would be an “accessory to a religious use” and should receive preferred status accorded by the Religious Land Use Act (RLUPA). He cited a case in Rochester to back his claim.
He added that if the board were to grant a special permit for parking and if the congregation needed to raise money at a different time by selling off the property, then the property could revert back to the original zoning.
Up until now, the narrows but deep lot, has been an income producing property for the temple, as the house and garage located on the lot are rentals. In fact, the village’s building department has issued summonses because commercial vehicles have been parked on the property, an act not allowable in residential zones. According to testimony from building department code enforcement officer, Kenny Pretto, the applicant has also been cited for “a stack of 25 discarded tires,” and rubbish. Informally, some temple members have been parking their cars on the lot as it is.
Another wrinkle in the case emerged during the public hearing. When this application first came before the village in 2006, the village required that the applicant needed to show ownership for a 12-foot wide strip of land, a “paper road,” named Partage Lane, that runs the length of the property. According to Mr. Mineo, the temple went through the process of “adverse possession” to claim the property.
This process includes running legal notices, investigating prior claims and determining ownership and/or interested parties.
The Great Neck Park District in-door tennis facility is adjacent to the lot in question. According to a letter from the district to the zoning board, the “multiple deeds by which the park district acquired title to that property in 1983 contain language granting a right of way over the 12-foot lane running northerly to Potters Lane.” The park district has used that right of way to gain access to the mechanicals behind the tennis building ever since. Clearly, they are an interested party, but during the adverse possession proceedings, they were never informed of the intent of the temple to take the land.
Robert Lincoln, chairperson of the park district, stated at the hearing that in discussions with temple representatives after this matter came to light, while trying to arrange an equitable and amicable solution that would give the park district continued access, the negotiations were halted when the applicant refused to grant access “into perpetuity.” After the meeting, Mr. Lincoln said that the district has no choice, but to pursue the matter, legally if need be, since access is essential to the maintenance of the facility.
Further, an examination of a legal notice run in the Great Neck News, as a part of the adverse possession proceedings, shows that the property in question was advertised to be located within the Village of Great Neck Estates.
The applicant’s architect, Tom Fitzsimmons, reviewed the proposed plan for a parking lot and indicated that in addition to the 51 trees already removed, an additional 9 trees would need to be cleared to make room for the parking lot. In Mr. Fitzsimmons original plan, he indicated that 60 trees in total would need to be removed to construct a parking lot. He stated that a row of 7-foot evergreens would be planted on the property.
The building department superintendent, Norman Nemic, was pointedly asked by board member Steve Markowitz why he had marked 12 trees on the lot for removal toward the end of last year. Mr. Nemick stated that a village trustee, who wished to remain anonymous, had suggested that some trees be removed to allow for more off-street parking and to ease the congestion on the surrounding streets. He noted that 5 trees were alive and in prime locations and that the 7 other trees were dead. Mr. Nemick marked the 12 trees with orange paint indicating that his department approved their removal.
Instead, a total of 51 trees were axed.
Members of the public were permitted to speak after the applicant’s attorney concluded his presentation. Many of the neighbors clarified the current situation regarding parking. Beth Schneider informed the board that the village prohibited parking on Potters Lane last fall. This was done to alleviate a dangerous situation where the already narrow street had been blocked to such an extent that fire trucks would have been unable to gain access.
The theme of “We’d like our woods back” reverberated throughout the testimony of many neighbors. Some neighbors, while not actually adjacent to the property, have it in their sight lines from their homes. They consider the clear-cutting a loss. Some wondered aloud if the application would have been granted originally if it had proceeded in order. Norman Wheeler said, “Now the removal of the trees is a fait accompli…Did they think, ‘We’ll be fined, but we will have our parking lot’?”
Clearly, most neighbors believe that a parking lot within the residential zone will have a negative impact on their property values.
One neighbor, who declared that he is Jewish, said that he was “disgusted and ashamed” that fellow members of his faith would “break the law” in this manner. He said to the board, “You should not reward criminal behavior.”
Robert Meyer said, “I was moved when the attorney for the applicant said that a religious institution promotes the ‘health, safety and morals of a community.’” He questioned the morals of an institution that acts with disregard for the environment of a surrounding community. Mr. Meyer also pointed out that many of the old growth trees, which were chopped down, were on the periphery of the lot. He asked, “Why?”
Jean Pierce asked the board to require an independent traffic study and an environmental impact study.
A number of residents pointed out to the board that the intersection of Potters Lane and Steamboat Road is a dangerous one. The egress into 2 Potters Lane is relatively close to that intersection and it is their belief that “it is an accident waiting to happen” because some drivers turning into Potters do so above the speed limit. Harold Lutz, the traffic consultant for the applicant, had previously stated that there would be no adverse impact to traffic from the parking lot.
Two neighbors, John and Dennis Reed, who live on Steamboat Road, stated that the situation on Steamboat Road is intolerable on Saturdays. One said, “Steamboat Road is a parking lot…any more off-street parking would be a help. Something has to be done.” Mr. Namdar said, “So, you’re in favor of the parking lot?” The answer was “Yes, some more spots would help.”
Elizabeth Allen said that she believed it was improper for Mr. Nabavian to hear the case since he was a member of the temple and said, “Nick, you have been making arguments tonight in favor of the applicant.” She said that the application was the “fruit of the poisoned trees” and that the zoning board should defer taking any action until the village court has heard and ruled on the case.
(Justice Jerome Reisman granted the applicants permission to present their case to the zoning board, but stated that he expected a status conference on May 13.)
The Record asked the zoning board attorney to explain upon what legal basis he had determined that it would not be necessary for the board members in question to recuse themselves. Mr. Luskin replied that he is not required to make legal rulings known to the public, only to the board. The Record then asked board chairman Dennis Grossman if he could shed light on the matter. Finally, it came out that since the attorney had concluded that neither board member had anything to gain financially from the transaction or had property abutting 2 Potters Lane, recusement was not deemed essential.
Board member Steve Markowitz, while stating that he considered his fellow board members to be ethical individuals, asked the chairperson to further explore the issue of recusement.
Community member Josie Pizer challenged the board to do as other communities have done around the country and “level the playing field” to protect the rights of residents as well as to consider the needs of religious institutions. She cited cases where local zoning boards have ruled against religious institutions and won in appeals courts. She urged board members to read the book, God vs. Gavel by attorney Marci Hamilton, that asserts that the RLUPA has been misinterpreted resulting in religious institutions gaining an upper hand in disputes while “showing disregard for the public good.” According to Ms. Pizer, the applicable part of the book to this case is the assertion that “There is no constitutional right to harm others simply because the conduct is religiously motivated.”
The attorney for the applicant asked the board to grant all variances that evening.
The board ruled that it would continue the hearing at its next meeting on June 4.