ZBA Minutes 3-20-07

MOUNT KISCO ZONING BOARD OF APPEALS

Minutes

March 20, 2007 7:40 PM

Mount Kisco Village Hall

Members Present: Donald Rose

Robert Marino

Michael Zucker

Members Absent: Harold Boxer

Staff Present: Austin Cassidy

Karen Schleimer

Donald Rose: Good evening and welcome to the March 20, 2007 Mount Kisco Zoning Board of Appeals. The first item on the agenda is the approval of the final resolution in the case of New Zion Realty. Were both of the other members here present for that case unable to vote on it? It's the SH Davidson Interiors.

Final Resolution:

New Zion Realty LLC

S.H. Davidson Interiors

Case #: ZBA 2006-10

Motion: Robert Marino

Second: Michael Zucker

Aye: Robert Marino

Aye: Michael Zucker

Aye: Donald Rose

Donald Rose: Next would be the approval of minutes from our previous meeting, which are December 19, 2006.

APPROVAL OF MINUTES, DECEMBER 19, 2006:

Motion: Robert Marino

Second: Michael Zucker

Aye: Robert Marino

Aye: Michael Zucker

Aye: Donald Rose

RETURNING CASE:

Mount Kisco Commons

195 North Bedford Road

Case No: ZBA2005-06

PRESENT: P. Daniel Hollis III, Esq.,

Shamberg Marwell Davis & Hollis PC

Marci Dustin, Court Reporter

Whitney Singleton,

Mount Kisco Planning Board

Donald Rose: We will then move on to the continuing case of Mount Kisco Commons, 195 North Bedford Road, Application ZBA2005-06, in which the applicant appealed to the Zoning Board for an interpretation of Section A 112-110 B 3 of the Code of the Village Town of Mount Kisco in accordance with the plans filed on June 2, 1995. In a previous meeting we heard presentation by the counsel for the applicant, and I believe that that part of the public hearing has been thoroughly aired. We felt it necessary to search deeper into this issue since questions were raised in the presentation about the history of the project with applications going back to 1995. So we felt it was only prudent to ask the staff in the Building Department to pull out the applications and the plans so that we could see what the history of the project is and if that would shed light on our interpretation of the section in question. So this part will be a presentation. If anyone in the audience has objections or points about that, please hold them until the end, and if time permits we'll see if their questions or differences of opinion as to what actually happened in the record. We do want to keep it brief so we want all comments and questions to be germane to the central question of the interpretation of the section of the code of the Village Town of Mount Kisco. So, with that -

Daniel Hollis: May I just make a comment and conclude my presentation of December 19?

Donald Rose: If it's brief. I thought your presentation was complete, although we had a brief meeting; but, if they're germane.

Daniel Hollis: I believe I try to make my comments always germane. With regard to tonight's proceedings I just want the record to reflect that I disagree with the procedure, that this is an interpretation of a statute and the recreation of the history with interpretive testimony by members of the Planning Board or staff not appropriately have indicated our objection to that on the record already. I just wanted to reiterate it.

Donald Rose: It is being redundant. You're objection is noted.

Daniel Hollis: Another point and that is as a matter of law that the SEQRA determinations in this case have treated this case over the part the decade that it was before the Planning Board as one application. There was one SEQRA determination.

Donald Rose: That is I think not germane to the question tonight, so let's move on to the next presentation.

Whitney Singleton: On that note, I would like to point out that Mr. Hollis is incorrect with regard to the SEQRA Determination. There were several environmental assessment forms and environmental impact statements filed for different applications.

Daniel Hollis: If it's not germane why are we talking about it now? If it wasn't germane when I talked about it, why are we talking about it now?

Whitney Singleton: I'm going to give you a copy of everything that I give to the board, but I would appreciate not being interrupted every eight seconds.

Daniel Hollis: I was just cut off because I was told it wasn't germane.

Donald Rose: Mr. Hollis, please take a seat.

Daniel Hollis: I would have been proper to provide me with documents in advance of the meeting.

Donald Rose: We're not going to debate procedure.

Daniel Hollis: That's fine. We'll just leave that to someone else.

Whitney Singleton: Mr. Chairman, my name is Whitney Singleton and I am the Village Attorney. I have been participatory in some of the application of the various applicants before the Planning Board, before Mr. Hollis' client before the Planning Board. There have been total five separate applications that have been brought in the decade under question, and I was there for the very beginning, and I was there for the very end, and I take neither credit nor blame for what happened in between. I think probably the best thing to do is to give your board, which I've already given to Mr. Hollis, a copy of a timeline relative to what has transpired on this property so you can see for yourself whether or not it is one application. And I presume that what I give the Chairman will constitute submission to the record for the Zoning Board.

Donald Rose: Yes.

Whitney Singleton: I will also, in advance of going through it, provide - I know that I've already provided the Chair with a copy, perhaps you could share. Simply I have not had time to duplicate. I provided a copy to staff, I had one for each of staff, but unfortunately I am going to have to give one to Dan, and you'll have to share. I can duplicate it later. Those are all the minutes and applications and resolutions and what not that have been before the board starting back on March 3, 1995. What happened on this particular property was that there was a conceptual application for the 21 acres on North Bedford Road, and you'll see that it is under the Property Tax ID 69.58-2-1 and 69.50-2-12. When they submitted a formal application a couple of months later, you'll see that the application was solely for the five acre parcel, and you will see in the minutes and in the application and in the Environmental Assessment Form and the covering letters that that application is relegated to a five acre piece.

Karen Schleimer: Mr. Singleton, that's Property Tax ID 69.50-2-12.

Whitney Singleton: Correct. And you will see, and Dan please feel free to come up if you want - that the application specifically, and the plans that were submitted to the Planning Board refers to application to this site; the site is referred to as a five acre piece, and no reference whatsoever is made to the balance of the site that Mr. Hollis' client eventually developed. If you look at the proposed plan for development, again, it references the site as just a five acre piece and 270 plus parking spaces on the five acre piece with a 55,000 square foot building on the five acre piece; nothing at all on the 16 acre piece. And if you look at the applications which have been submitted with these plans you will see that Kellard and Federico expressly restrict the application to the five acre piece. There was review of the application, and there was a purported attempt to, under the guise of an alternative, bring an application on a different piece of property, and Mr. Hollis will have you believe that there was one SEQRA Determination. I don't know how you can have one SEQRA Determination for two separate properties, but the application morphed from the five acre piece to the sixteen acre piece, and that application is right here. And you will note, that as part of that application the site engineers for the applicant submitted an amended formal site plan subdivision application; a completely new application. Now it is no longer showing a five acre piece but a 21.22 acre piece.

Donald Rose: For the record, what was the date of that application?

Whitney Singleton: That was received by the Planning Board on May 26, 1999.

Karen Schleimer: Mr. Singleton, can I back up a minute to the June '95 application? There were fees paid in connection with that application?

Whitney Singleton: Yes, as there should have been there was $50 per required parking space for the five acre parcel.

Karen Schleimer: And that was 273 parking spaces for the five acre parcel.

Whitney Singleton: Correct, and they pay $50 per required parking space. This is the application that was submitted in 1999. As you can see the five acre piece is off the table with no disturbance to it proposed whatsoever. And the entire disturbance is now proposed for the sixteen acre piece. It was ipso facto, presto chango, a different application, and was reflected by such in the minutes of the Planning Board meeting, which have been submitted to your board.

Donald Rose: Does that site plan indicate the required number of parking spaces?

Whitney Singleton: 843 as can be seen from this submission and the time, the chronology set forth before you, as part of that application they submitted a formal application to the Planning Board, paid no fees. Not even the initial $300 fee. That application was approved eventually in 2002. So, I think we can rest assured that whether it was one application or three applications it came to conclusion in 2002 with this being a copy of the resolution. After the application was approved on March 12, 2002 the applicant did not commence construction, came back to the Planning Board in August of that year on the eve of the expiration of the permit, promised the Planning Board that they had every intention of moving forward with construction and requested an extension from the Planning Board which was acquiesced to.

Donald Rose: Mr. Singleton, can I just back up? I notice in the March 12, 2002 resolution of approval mentions an application fee of $13,950 having been paid.

Whitney Singleton: Correct.

Donald Rose: Does that in fact refer to the fee that was paid with the June 2, 1995?

Whitney Singleton: It erroneously refers to that, yes.

Daniel Hollis: The documents speak for themselves.

Whitney Singleton: Okay, Dan, they speak for themselves. It refers to an application fee that was paid on a completely different property, and there is no doubt of that. You can simply look to the application from 1995. It is for a five acre parcel on a building wholly within that five acre parcel referred to as immediately north of the Manufacturer's Outlet Center.

Donald Rose: Okay.

Whitney Singleton: And in the minutes and in the covering letters it expressly refers that this has nothing to do with the adjoining site. Alright. After the applicant sought and was successful in seeking an extension of approval predicated on a promise that they plan to have every intention of moving forward with the 2002 approval, then sat down with various members of the Village and decided to go in a completely new direction. They submitted another application. The other application, again, for a revised site plan or modified or amended site plan for the Mount Kisco Commons. Now it's for the 69.58-2-1 and 69.50-2-12, and they paid a $300 application fee, and they paid the escrow deposit, but they did not pay the $50 per required parking space as was required. Clearly, having obtained a written resolution of approval, anything that came subsequent to that was a new application. They can't morph this application one more time. They had received a written resolution of approval, and to the extent that it might or might not be a slight modification of what was previously done, I direct your attention to the March 12, 2002 minutes of the Planning Board, oh I'm sorry, that was the approval, and the extension was on August 27, 2002, and then they came back to the Planning Board with a revised application on January 3, 2003. But prior to coming in, they came before the board and made a pitch as to what their new application was going to be, and I will quote directly from the minutes as to what the Chairman of the Planning Board, who is in attendance this evening, said, Chairman Cosentino said he was at a meeting concerning the outlet center. He said they would be coming before the board with a proposal completely different from the original approvals. They want to split up the mall into two stores, both more than 40,000 square feet, and a satellite building and relocate the A & P grocery store. That's in the minutes on Page 4 of the October 22, 2002 minutes. And as you will see… I will show you the two plans… first I will show you what was approved in 2002, and I will characterize the 2002 application as it was by Mr. Hollis' then partner and the site engineer. It was a retrofit. They were going to take the existing Outlet Center in its existing footprint and renovate it. They were going to leave the existing retail stores here, they were going to leave the Waldbaum's there, but convert it to retail, and then what they were going to do up front was to convert the existing mall space into a grocery store a single store. It did involve a slight new bump out here for further construction. As you will note, there is nothing else proposed on this site. This was approved. When they came in with a new plan, which they referred to as a new plan and submitted an application for a new plan, and they submitted a new Environmental Assessment Form, it's no longer a retrofit. The foot print was no longer the same. They were going to rip down the entire 200 plus thousand square feet, put up a brand new building, and they were going to put up a satellite building in the northwest corner. Numerous component changes were made to this site. That's why a new application was required. And it had to be a new application as the other one had been approved. Finally, when this site was approved and under construction, they deviated substantially from the approved plans. They deviated substantially from the approved plans to the point where a new application had to be submitted, and in your package is an application from 2005 from Kellard Engineering for a fourth time, and you can see the application right here, its in the back of that package, from 2005 with a new Environmental Assessment Form, with the transmittal cover sheet, with the $300 fee, but again a failure to pay the $50 per required parking space. This application resulted from substantially over excavating part of the site resulting in retaining walls that previously weren't supposed to be retaining walls, and retaining walls that were twice the height of what was previously intended, with guard rails put up on the site with revised landscaping with revised circulation with a revised traffic plan and parking plan, and the applicant came before the Planning Board on numerous occasions with consultants present, came forward late at night, on Saturday mornings, all hours of the day and all hours of the days of the week. That resulted in a draft resolution. In your package it is referred to as Draft 22505. Ultimately, that draft resolution was adopted approximately one week later on March 1, 2005, and I direct your attention to page four of the draft. A copy of this draft was given to Mr. Hollis prior to the meeting, and you will note and then compare that to the actual adopted resolution signed by the Chairman. And I direct your attention to Page 4, Condition Number 6. Page 4 Condition Number 6 in the draft resolution says all Village engineering, planning, and professional consulting fees shall be paid within 90 days of the issuance of the building permit, and prior to the issuance of a temporary or final Certificate of Occupancy for any component of the proposed site plan. That was in the draft resolution, and in the actual adopted resolution it says all Village application, engineering, planning and professional consulting fees shall be paid within 90 days. The only difference being the word application. And that was brought to Mr. Hollis' attention in this room the day that the resolution was being reviewed. It was brought to his attention and I said, Dan, I don't want you to be blind sighted by this. This was put in because the application fees have not been paid. And his verbatim quote to me was, “don't worry I got your back; my client will pay it.” This was brought to his attention. It was brought to his attention before the very resolution that was before the board was adopted. And that is consistent with the Village code. So I take umbrage with, I apologize for taking umbrage, but I do take umbrage with the fact that he said it was brought up in the thirteenth hour. It was not brought up in the thirteenth hour. He brought an application before the Planning Board; as a matter of fact they brought five applications before the Planning Board and they repeatedly failed to pay the fees. What I would like to address to your board, getting back, now that we've gone through the historical aspects of this, I will give your board copies of what the code at the time that Mr. Hollis' client was required to pay the fees. The code required in the section he's asking an interpretation for an application for commercial site plan approval, $300 plus $50 per required parking space. It does not say, as he would have you believe, per required additional parking space. It is per required parking space. It has been that way for decades. Mr. Hollis has tried to make hay of the fact that some clarifications were made by the Village Board as to these fees, and his interpretation is actually completely contrary to what was done. Here is a filing of Local Law #4 in 2005, amending fees relative to commercial site plan applications. This is subsequent to Mr. Hollis' payment of the fees set up, but what I point out to you is that it says site plan fee, $500 plus $75 per required parking space existing and/or proposed or $100 per proposed dwelling unit. See Note #1 below. Note #1 below reads verbatim, the fee per parking space refers to the number of parking spaces required for the use proposed major site plans only and it is required whether the spaces currently exist or are being proposed. This fee is paid with the initial application fee. So Mr. Hollis' interpretation that it's only applicable to Change of Use Permits is misplaced. The fact that General Cook Publishers made an error is of no consequence. That is the official filing with the Department of State.

Karen Schleimer: Mr. Singleton, this amendment to $75 per required parking space was after completion of all of these applications?

Whitney Singleton: Yes, and Mr. Cassidy did not charge him the $75; he applied the fee that existed at the time of the application, which was $50 per required parking space, which was paid, consistent with the resolution and consistent with the village code. So, I bring to your attention one final aspect of this. And perhaps a very relevant aspect, actually, before I get to that portion I do want to point out there are a number of issues that Mr. Hollis raises in his plea. Particularly, I will give him very much credit by doing this, but I regard much of what is in his briefs as smoke and mirrors. He talks about that there was a waiver of urban renewal regulations as somehow impacting fees. He talks about the code section regarding create existing uses and effect on parking requirements; again, on the requirements, not the fees. He talks about this being ten years after the fact, when in fact the application came in 2005. Actually, four applications came over a decade. He talks about State Comptroller decisions which really are beyond the purview of this board and I would be happy to litigate those issues with Mr. Hollis if he so desires. But I will only address those individual issues should your board have any specific questions of me. Lastly, I would like to point out this. That if Mr. Hollis felt that the parking requirements, actually, let me go to Site 110-45 of the Code. This is the section of the village code governing site plan applications and how they are to be entertained, and I will direct your attention to Section 110-45-C6, and I will read it verbatim. Applications for amendments to an approved site plan shall be made and acted upon in the same manner with the procedure set forth above referring to new site plan applications. And then it goes on to talk about where there are violations on amendments. So, replete throughout 110-45, is the position that site plan amendments, site plan revisions, site plan modifications are entertained and treated in the same exact fashion as a brand new site plan application. Now, that may seem rather punitive if you're doing a very minor modification to your site plan, and I understand and appreciate that, and Mr. Hollis clearly has within his disposal an ability to deal with that issue. If you jump back just one page, under 110-45C regarding procedure, you will see in sub-paragraph three that it says each application for site plan approval and each application for an amendment to a site plan shall be accompanied by the fee for approval of site plan set forth in Chapter A 112 of this code; the $300 plus $50 per required parking space; not additionally required parking space.

Michael Zucker: Can you just refresh my memory? What was the date this code was adopted?

Whitney Singleton: This has been since 1986.

Michael Zucker: Thank you.

Whitney Singleton: And has not been modified during any time during his application. The purpose of which is to help defray the administrative costs related to the review of such site plan. Now if Mr. Hollis felt that these fees were excessive there is relief built into the code for him. In the case of an application for an amendment to a site plan, the Village Manager may waive the fee required herein in whole or in part where the proposed amendment is minor in character and will in the judgment of the Village Manager; require minimal review by the Planning Board and Staff. I can tell you that neither Mr. Hollis nor his client has ever sought relief under this provision. They were charged the fee in 2005 when they brought a 2005 application, they paid the fee, and they cannot now be heard to say that they shouldn't have to pay fees because there was an administrative error constantly referring to this application as 95 dash whatever. It has been a minimum of four different applications over a decade, and I'm not even referencing the Appleby's application. They have had a decade's worth of review on many people that contribute their time free of charge, that work at reduced rates, that are full time employees of the Village that came in many, many hours working on this application, stayed late at night, and they got the entire application reviewed for $40,000, and I can tell you that that is a pittance compared to what other municipalities would have charged in total for review of this application. I don't have anything further unless your board or counsel has questions. I would just reiterate; we have four applications here, not interpreted to be applications, actual submissions that are in the package before you. The approved plans and the approved resolutions are before you. And they never sought any relief other than to sue the Village.

Robert Marino: How many approved site plans do we have in total?

Whitney Singleton: We have an application brought in '95 on the five acre piece, which was in my estimation withdrawn in favor of an application in '99, which was approved in 2002, and you have the 2002 resolution, I know I'm kind of going fast, received in 2005.

Robert Marino: You may have it here.

Karen Schleimer: There are three actual approvals, resolution approvals.

Robert Marino: Three site plan approvals.

Whitney Singleton: Absent of Appleby's.

Robert Marino: Thank you.

Michael Zucker: Do you know why the applicant was not charged according to the code, when the additional applications or amended applications were filed?

Whitney Singleton: It would be supposition on my part, but I think it was if you understand how things work downstairs, they take in applications. They don't sit there and fill out checks on the spot. They take in an application and nobody went back to check. They had a series of plans coming in for a decade on adjacent sites, on combined sites, on individual sites, but the fact of the matter is yes, there were several applications for the site, and when they applied in 2002, I'm sorry in 2005, they were required by the resolution to pay a fee, it was brought to their attention in 2005, there was a condition in the issuance of the Certificate of Occupancy, they paid the fee and that's it. If they thought it was excessive they should have applied pursuant to the code to the Village Manager.

Michael Zucker: Just follow-up on that. The Village has never attempted to go back and collect the application fees on previous applications?

Whitney Singleton: We've gone back, and we've waived fees on other applications. So this is not virgin territory.

Michael Zucker: No, I mean on this.

Whitney Singleton: On this application? No, right now what you have in Mr. Hollis setting forth in his papers that he shouldn't have to pay the $40,000, and on top of that he thinks he's being benevolent by not requesting back the $13,950.

Michael Zucker: Does the Village have the right to go after additional fees?

Whitney Singleton: That's not the issue before me, I'll defer to your counsel on that.

Donald Rose: Do any other members or counsel have questions of Mr. Singleton?

Karen Schleimer: Mr. Singleton, under 110-45C3 it says each application per site plan approval and each application for an amendment to a site plan shall be accompanied by a fee. What we have in the instance case are six separate applications or three applications or whatever, it is at the very least an amendment.

Whitney Singleton: Not only is it amended, it's for different properties.

Karen Schleimer: I appreciate that. But regardless of how we characterize it, regardless of whether it was an amendment or a new application, under this provision the fees are due each amendment, and the procedure in the code is if the applicant feels that the fee is not commensurate with the amount of work involved, they can ask for a waiver, either with respect to an amendment or with respect to an application?

Whitney Singleton: That is correct. And, as a matter of fact, if you notice in the filing that we did with Department of State, we tried to codify that a little bit more and make it more bright lined instead of it being subject to the discretion of the Village Manager who could be subject to criticism if he waives it for some and not for others, and we create a threshold that it has to be deemed a major site plan application for the fee to be applicable for each and every parking space. And that is - a major site plan is a defined term within the code.

Donald Rose: I'd like to just clarify one point. I believe it was suggested that in the case of a new application the Village Manager could also waive the fee.

Whitney Singleton: Still can do.

Donald Rose: As I read Section 11045 Paragraph 3, starting in the middle, it says in the case of an application for amendment to a site plan, the Village Manager may waive the fee required herein in whole or in part where the proposed amendment is minor in character. It doesn't say that an original application could have the fee waived by the Village Manager.

Whitney Singleton: Yes, you're correct for an amendment they can waive the fee. And it's designed for situations where people are coming in to bring in sprucing up of their site. If it's an upgraded landscape plan or lighting plan, or they're going to put in one feature of the site, like a nice dry stone wall or masonry wall or something. It's designed not to be punitive in that regard, and to capture only true applications. Clearly, when we're talking about hundreds of thousands of square feet, and going from one property in the wetlands to another property to a combined property, to a retrofit, to a complete takedown and new buildings on different portions of the site with different traffic layouts; these are not minor modifications, but still, it was within their right to go seek relief from the Village Manager.

Robert Marino: And it's your position that they never did that during the application process?

Whitney Singleton: They have not referenced it at all in their application. I've checked with the Village Manager; so, he has told me that they have not.

Michael Zucker: But I must admit I'm not sure from what they would have sought relief.

Whitney Singleton: Well, theoretically they could say that that some of their modifications to the site plan - theoretically, I'm not advocating this…but they could have said, you know what, we've been before the board for a decade with various iterations on different properties, and truly our traffic plan hasn't changed, we may be taking down the building but our traffic plan hasn't changed, and this hasn't changed, and we'd like to pay half the fee or a quarter of the fee or three quarters of the fee.

Michael Zucker: But the only fee that was presented to them was $300. So they wouldn't have sought relief from a $300 fee.

Donald Rose: I think we need to have just a little more light on the process. You're I think suggesting that the applicant receives a bill for a fee once the application is turned in. I don't think that is the case from what you've said that the applicant will present all the copies of the plans, the fees attached to it and the fee presumably has been determined either by the applicant's engineer or architect, perhaps as a result of consultation, I don't know, with Building Department.

Whitney Singleton: And things do change over time. It's not unusual for a 50,000 square foot building to be cut down to a 25,000 square foot building, and the commensurate parking requirements and associated fee would be modified. But in this particular application, I sat in this room at this table with Mr. Hollis, I identified for him specifically that the resolution was going to include additional fees, that they were going to condition the approval on the fees, and he acknowledged that. It is the only change that you see in that condition there. And it was called to his attention. I take great umbrage with him saying that this was raised a decade later in the thirteenth hour. It was raised contemporaneously, with the application that was before the board in 2005, the application was made in '05, the application was reviewed in '05, the condition was made in '05, and it was approved in '05. There was no decade later, or thirteenth hour. It was brought to his attention, and whether or not somebody missed it in 1995 or in 1999 or in 2002 or in 2003, or even in 2005, is of no consequence. Mr. Hollis is fully aware of the fact that a stopple cannot be used against a municipality. We cannot be doomed if somebody missed something at some point in time to repeating mistakes over and over and over. We have the right to go after fees. We have the right to correct a situation where it's warranted. My interpretation of this whole thing is that there were four applications, there was one fee paid willingly up front, there was a second fee extracted contemporaneously with the application, and there were two free rides for Mr. Hollis' client.

Donald Rose: Any other questions?

Karen Schleimer: Mr. Singleton, in the January 3, 2003 revised final site plan, building plan application.

Whitney Singleton: I'm sorry, can you repeat that?

Karen Schleimer: The January 3, 2003 application; the notes here say there were a $300 application fee paid and a $5,000 Planning Board escrow deposit. Can you tell us what the escrow deposit is?

Whitney Singleton: That's required by the code. Sometimes they paid it, sometimes they didn't. 2002 they didn't pay them anything.

Karen Schleimer: And that has nothing to do…

Whitney Singleton: I'm sorry, in 1999 they paid one time they paid the $300 with the $5,000 deposit, and one time they paid the $300 without the $5,000 deposit, and one time they didn't pay either.

Karen Schleimer: And the escrow deposit would go towards…

Whitney Singleton: To defray the cost of the use of outside consultants.

Karen Schleimer: Okay. So that's in addition, in a normal application, that's in addition to these charges in relation to parking spaces.

Whitney Singleton: Right. There are certain fees which are not recouped for the normal application procedure. Fees for outside consultants like our planner and myself are directly billed. At this point in time, fees for the Village Building Inspector, the Village Engineer, the Village Manager, staff downstairs, the Police Department, the Police Chief, all who have participated in this process, as well as other people who don't jump into my mind right now, that was to defray the cost. So, what we have here is we have a decade of review by some pretty well compensated individuals that is being born on the backs of the normal taxpayers in the Village. As I mentioned, I'm repeating myself as I mention this to counsel, we were talking the other day of a project in a nearby municipality where there is 5% inspection fees as standard, in addition to building permit and Certificate of Occupancy fees. And I just think to myself, if those fees, which are readily paid in other municipalities are paid on this site, that would be $1,000,000, plus. And here we are with four or five applications over a decade, quibbling over $40,000. I'll just leave it at that.

Donald Rose: Thank you for your comments. We appreciate the laying out of the history and the work done by the staff for putting the record together. If anything, it appears that the paperwork processing is not consistent from year to year and application to application, but that's not part of our charge, whereas to interpret the provision of the code that pertains to the fees. You indicated that Mr. Cosentino is in the audience; Chairman of the Planning Board. Mr. Cosentino, would you care to enlighten this board about the procedures that the board follows, how this kind of event - please step forward so that your comments would be heard by the microphone.

Chairman Cosentino: I concur with the presentation that Mr. Singleton gave, but there were many, many times that Mr. Hocherman was before us and not Mr. Hollis, so I don't know what Mr. Hollis presented here, but our dealings were made with Mr. Hocherman. There were applications after applications before us, and truthfully we had a meeting with the former mayor, the owner of the mall, Mr. Birdoff, and when I attended this meeting, we were talking about just renovations of the… just the renovations of what was there. To my surprise, he said I have Target that wants to come in. And we need a satellite store for the stores that are presently in the mall to be moved to the satellite stores. At that time I told him that this has to be a completely new application that has to come before us. And they agreed, and it was a new application. So, in my memory, there were at least four maybe five applications for two parts of the property. And at one time they wanted to build in the wetlands.

Donald Rose: It appears that each of these applications or amendments or revisions, each used the same application number. Is that something that would typically happen?

Chairman Cosentino: It could. I'm not saying it did happen; it could happen. But the applications were different. They were different developments. They were different buildings. Everything was different when they came in. We didn't know sometimes from one month to another month what was going to happen. But there were four to five different applications that we dealt with, and not to repeat myself, we dealt a lot with Mr. Hocherman, and he would have the history of this.

Donald Rose: With the normal operation of your board, would I be correct in assuming that you and your fellow board members do not deal with the money coming in directly; that's handled in the Building Department office?

Chairman Cosentino: That's handled by staff.

Donald Rose: By the secretary of the board, and so on?

Chairman Cosentino: That's handled by staff but not by us.

Donald Rose: Is there a review of that procedure at any point? Or is it just assumed that the staff …

Chairman Cosentino: For the past year I've been getting a tally of what different developers owe us just to keep up to date on it.

Austin Cassidy: The treasurer is charged with oversight.

Chairman Cosentino: The treasurer takes care of that.

Donald Rose: Do other members have questions for Mr. Cosentino, or counsel?

Robert Marino: Do you have any recollection of ever discussing a modification or a waiver of any of the fees with each subsequent application?

Chairman Cosentino: There was never a - never mentioned a waiver of any fees. I was at every meeting, never mentioned about a waiver. Fees were to be paid; Mr. Hollis knew that, Mr. Hocherman knew that.

Robert Marino: Thank you.

Donald Rose: Mr. Hollis, please.

Daniel Hollis: With all due respect to my worthy adversary, Mr. Singleton, the history that was presented was interpreted. A lot like you see on the history channel, where there is a core fact in history but actors act out how the producer feels the history developed or evolved, and I think that happened a little bit here tonight. You heard modifying words, modifying things that happened that I found and I continue my objection to that. What I want to stress are the facts. Our record is very clear about this project; that the parking spaces were attendant to the square footage, we paid the fee. The first time we ever heard about this additional fee was at or about the time of the March '05 resolution when Mr. Singleton brought it up I disagreed with him minute one with regard to that, and said to him that this was a reach. I've also said and its part of the record that this fee came up and the local law, in which Mr. Singleton makes reference, was filed on April 19, 2005, six and a half weeks after the resolution of March 1, 2005. The SEQRA process; which Mr. Singleton makes reference to as being four different applications, six different applications, three different applications, it was one application, and the revision is history now as to try and change that. Plans evolve. A plan evolves for a piece of property, and the Resolution of Approval, the last the extant resolution of approval, the March 1, 2005, beginning at the bottom of Page 2, discusses the SEQRA process, and the SEQRA process is most compelling, most obligatory, and most constricting with regard to any approval. And that language says, and I quote, whereas pursuant to SEQRA, one, the action has been identified as type one. The action; singular not plural.

Donald Rose: Let me just…

Daniel Hollis: I really would prefer to make… please, Mr. Chairman, with all due respect, I'll answer the questions that are appropriate but I really want to finish.

Donald Rose: Be concise.

Daniel Hollis: I want to get my record out; I'm entitled to that, sir. Point two, on June 2, 1995, a short Environmental Assessment Form, EAF, was submitted. Three, on June 22, 1995, a draft long Environmental Assessment Form was submitted. Four, on June 13, 1995 the Planning Board declared itself to be Lead Agency. Five, on June 13, 1995, a Positive Declaration was filed. Six, on April 14, 1998 a DEIS was accepted for circulation. Seven, on September 20, 2001, an FDIS was accepted as complete. Eight, on December 12, 2001, a Statement of Findings was adopted by the Planning Board. Nine, March 11, 2003, a revised draft long Environmental Assessment Form was submitted and is accepted as complete. Ten, on March 25, 2003, the Statement of Findings was re-affirmed. Eleven, on March 1, 2005, the Statement of Findings was re-affirmed. That's one SEQRA process as a matter of law. Call it anything else you want, an interpretive history, but as a matter of law, that's one SEQRA process; that's one review, that's one application.

Donald Rose: Let me just point out. We're going far a field. We're talking about applications and fees to the Planning Board; we're not talking about the SEQRA process over which we have no knowledge and are not asked to review.

Daniel Hollis: But sir, that's so important. Because you're being told that this is more than one application. SEQRA requires if it were more than one application, and if it were covered by one SEQRA determination, that would not have been appropriate. And believe me, Mr. Singleton would not have let that happen, and any whoever was Village Attorney at that time would not let that happen because there is a word for that and it's called segmentation, and it's against the law. So it's very important, Mr. Chairman.

Donald Rose: Are you claiming, therefore that there are - the one application over the ten year period and no amendments to the application?

Daniel Hollis: There are changes to the… there are changes to the plan.

Donald Rose: Are they amendments?

Daniel Hollis: They are not amendments, necessarily. There is one SEQRA process. I stand by what the record says.

Donald Rose: On May 26, 1999, where the title on the site plan is Amended Formal Site Plan, is that not an amended application.

Daniel Hollis: I'm not going to debate with you or be cross-examined, Mr. Chairman, the records speak for themselves.

Donald Rose: I think the words speak for themselves, Mr. Hollis.

Daniel Hollis: Well, I think you've formed an opinion in advance if you've got that opinion already.

Donald Rose: We have been presented with copies of the application submitted by your client. Are you telling me that...

Daniel Hollis: I'm telling you what the SEQRA process is, Mr. Chairman, and it's important as a matter of law. That's my point. And I'm not going to argue or debate other nuances here. This whole process and this presentation are flawed. In the review by the Zoning Board of an administrative act which involves a fact, why deference is given to your board… I've given you the law on this. When the question is a question of law, no latitude is given to you.

Donald Rose: We will receive our law from counsel, thank you.

Daniel Hollis: And I'm entitled to make my record with regard to what the law is.

Robert Marino: You certainly are.

Whitney Singleton: I just want to interject one thing. I'm not going to debate back and forth. But, Dan…

Daniel Hollis: I'm not going to get into any colloquy. I was not allowed to question Mr. Singleton when he made statements of interpretive history involving the anticipation of my client…

Whitney Singleton: Okay, I'll direct it to the board. You will see in your application from 1995 that it says that it is for… here is not only the copy, it's the original… the building is to be located on the five acre parcel adjacent to and to the north of the Mount Kisco Outlet Center. The property is designated as 69.50 Block 2 Lot 12. It goes on to say with the fees being paid - it goes on to say in the application that it is a 217,800 square foot parcel, which roughly translates at 43,560 a five acre parcel. It identifies the application to 69-50-2-12. Again, if you look at the minutes from the very first meeting, the representative from Keller and Federico says no this has nothing to do with the other site, it's for the five acre parcel. And it goes on with a short form Environmental Assessment Form to identify it as 69-50-2-12. It goes on in the facts in the covering sheet to identify a 69-50-2-12. Now, Mr. Hollis is very good at talking a dog off a meat wagon, but the fact of the matter is, an application can't morph from there to there under one application. Two separate pieces of property. Two separate proposals.

Daniel Hollis: What Mr. Hollis is good at is making positive and correct statements of law. I don't know the folks at euphemisms are at a loss on me. This record, as a matter of law, I've given you the SEQRA process, you're bound by it. It was treated as one application all the way through. That cannot be disavowed by you now. It cannot be done.

Whitney Singleton: Under that analysis, though, I would point out to your board that no application no site, could ever be altered in the future. This is a site which is approved. Then they turn around and propose a different project, and then a different project, and then a third project. How many bites at the apple do they get under one application fee? It's not as though the application morphed to something else. It was approved. There are three separate resolutions of approval. The SEQRA process starts all over with each one. They may reaffirm the findings, that there are no additional impacts, but the application itself is a new application. And that is why his client submitted new applications, new Environmental Assessment Forms and new covering sheets.

Daniel Hollis: And every time an application, if that's what it's called, for new never was there a fee requested. The only time a fee was requested this additional fee was after the resolution of approval on May 1, 2005.

Whitney Singleton: No. No, absolutely not.

Daniel Hollis: Excuse me, Mr. Singleton.

Whitney Singleton: I pointed out to you, Dan, you even said; you took umbrage, before the resolution was adopted.

Donald Rose: Gentlemen.

Daniel Hollis: The only mistake or flaw that was made here was that for some reason the Village of Mount Kisco is not bound by opinions of the State Comptroller. I would caution you against following that advice.

Austin Cassidy: Mr. Chairman, I believe we have an application before the board; that's why we're here. What is the application seeking?