Links costello first opinon rejected transfer of density

The Links is a proposed 100 unit residential cluster subdivision that would be located near Kelly Ridge Road in the Hamlet of Carmel. To win approval for the 100 units, the developer sought to "transfer density" from Centennial Golf Course to the proposed subdivision. In essence, it is the developer's position that because houses were not built on the golf course, more houses can be built within the Links subdivision than would otherwise be permitted. Below is the legal opinion from the Town Attorney rejecting the subdivision as proposed for the several reasons stated below. (Scott Friedman's comments from Dec 1998): (Underline and bold text not in the original)

TOWN OF CARMEL

TO:          PLANNING BOARD
FROM:    THOMAS J. COSTELLO, ESQ.
DATE:     DECEMBER 16,1998
Re:         THE LINKS

The Planning Board has requested my opinion in regard to this application and the issues concerning transfer of density raised by the Board's consultants in their respective memos which initially reviewed the application. The application in question was submitted on July 17,1998 by Hudson Valley Realty Corporation. The application is dated April 29,1998. Along with the application the following documents, among others, were submitted:

(1)Letter from John S. Marwell of Shamberg. Marwell. Hocherman, Davis & Hollis, P.C., to the Planning Board, dated July 17,1998;

(2) Letter from Centennial Golf Club of New York, LLC to the Planning Board. Dated April 21, 1998.

The letter from John S. Marwell, dated July 17.1998, states on page 1 in the second paragraph: "Duke & Benedict Inc and Benedict Dairy Farms ("Duke & Benedict") have the right to purchase the Project Area from Centennial. Hudson Valley Realty Corp. is contract vendee to Duke & Benedict." The letter from Centennial Golf Club of New York, LLC, dated April 21,1998, states that: "As owners of the above-described property (the "Premises"), we submit this letter to authorize Duke & Benedict, Inc. and Benedict Dairy Farms, its successors or assigns, and their agents ("Duke & Benedict") to submit and advance an application for a clustered residential subdivision." These statements are apparently contradictory. As a result, the Board's consultants have requested advice as to whether purported density on adjacent lots which are not part of a proposed residential cluster subdivision can be used in the calculation of lot count for the parcel which is the subject of the application. The Links application involved only Lot 1 on filed Map #2692 which is a 92.98 acre parcel located wholly In the Town of Carmel. Centennial's letter to the Planning Board of April 21st purports to transfer density rights on those portions of Lots 2, 5 and 6 located in the Town of Carmel to Lot 1. Lot 2 is a 28.559 acre parcel wholly within the Town of Carmel. It is currently unimproved and contains a large wetland. Lot 5 Is a 290.17 acre parcel of which 126.5 acres are In the Town of Carmel and 163 acres are in the Town of Southeast. Lot 5 is currently improved with a golf course, clubhouse and related facilities. Lot 6 is a 31.658 acre parcel located wholly in the Town of Carmel. Lot 6 Is currently improved as part of the golf course. Lot 5 and 6 are contiguous to Lot 1. Lot 2 is not contiguous to Lot 1.

If Duke & Benedict has an option to purchase Lot 1 and has entered into a contract with Hudson Valley Realty Corp to sell Lot 1 to it, as indicated in Mr. Marwell's letter of July 17th, it is my opinion that the attempt by Centennial to transfer purported density rights for those portions of Lots 2, 5 and 6 in the Town of Carmel is not authorized under either State Law or the Town of Carmel Zoning Code. The only way that such a transfer of purported density rights would be authorized under State Law would be pursuant to a local law adopted under Town Law Section 261-a which authorizes transfer of development rights. Even if it was assumed that density rights and development rights are one and the same, the Town of Carmel has adopted no such local law and the current Town Zoning Code does not contain any mechanism for transfer of either density or development rights.

If Centennial Golf Club of New York, LLC is truly the applicant and Duke & Benedict and its assigns are mere agents who are authorized to submit and process the application on Centennial's behalf before the Planning Board, as apparently indicated in Centennial's letter of April 21,1996, then the application does not comply with the Town of Carmel Zoning Code regarding residential clusters application for the following reasons:

1. The application would have to include all those parcels of land included in the proposed residential cluster subdivision. This would include Lot 1, Lot 2, Lot 6 and that portion of Lot 5 in the Town of Carmel.

2. A minimum of 35% of the gross area must be set aside as open space. The Zoning Code provides in Section 63-11E(6) "In determining which land is to be preserved as open space, the natural and scenic qualities of the site shall be taken into consideration, as well as the ecological significance of the site and its utility as an open space." The total area of Lots 1, 2 and 6 and that portion of lots in the Town of Carmel Is 279.617 acres. Thirty five (35%) percent would be 97.865 acres. The only acreage in the proposed cluster subdivision which is essentially unimproved and thus qualifies as open space (see definition of open space contained in October 21,1998 letter of John S. Marwell to the Planning Board) are Lots 1 and 2 since Lots 5 and 6 are currently improved with the Centennial golf course, clubhouse and related facilities. Significant portions of Lot 1 and Lot 2 contain wetlands. Most of Lot 1 which is not wetland is proposed to be developed and therefore would not be available as open space. Lot 2 is only 28.559 acres and contains a large wetland. Assuming for purposes of this opinion that the Planning Board is willing to approve all of Lot 2 as open space, an additional 69.126 acres of open space is required. The application should indicate how the open space requirements of the Town Zoning Code are to be met so the Planning Board may determine whether the proposed acreage is suitable to be preserved as open space.

3. If Centennial intends to utilize that portion of Lot 5 in the Town Of Carmel and all of Lot 6 which are currently improved with the golf course, club house and related facilities for purposes of calculating allowable density, then the golf course, club house and related facilities would have to become common open space to be turned over to a homeowners association under the current Town Zoning Code. There is no indication in the application that Centennial intends to turn over the golf course, club house and related facilities to a homeowners association. Indeed from its April 21,1998 letter, it would appear that Centennial wishes to continue operating the golf course as a public golf course. In short, it would appear that Centennial wants to have the best of all possible worlds to continue to operate the golf course and reap the profits therefrom and at the same time utilize purported density rights from the golf course on other lands to be developed by it. While it is understandable that Centennial might desire this, it is my opinion that this is not permitted under the current Town of Carmel Zoning Code. I have reviewed John S. Marwell's letter of October 21. 1998 to the Planning Board and the cases cited in it. It is my opinion that these cases are distinguishable on the facts and consequently do not apply to the instant application because of the peculiar facts and circumstances involved herein.

From the foregoing, It can be seen that the issue of whether Hudson Valley Realty is an authorized agent of Centennial or a contract vendee is of considerable significance.

If Hudson Valley Realty is a contract vendee, it is my opinion that the application cannot be processed by the Planning Board because transfer of development rights has never been authorized by the Town Board of the Town of Carmel by Local Law. If Hudson Valley Realty Is an authorized agent of Centennial Golf of New York, LLC, then the application cannot be processed in its current form but it might be possible for Centennial to amend its application to conform to the Town of Carmel requirements for cluster subdivisions so that the Planning Board could at least process the application. This is not to imply that any such application would ultimately received Planning Board approval but only that the application might be considered complete for processing to determine whether it meets the objectives expressed in Town Code Section 63-11E(1) and the standards given in the rest of that section.

In order to determine whether Hudson Valley Realty Corporation was a contract vendee, as indicated In Mr. Marwell's letter of July 17,1998, I requested copies of Duke & Benedict's contract and Hudson Valley Realty's contract on September 2,1998. On November 11th, originals of an Assignment of Rights, signed November 11,1998, were delivered to me. This Assignment indicates that the rights granted in the April 21st, 1998 letter of Centennial Golf Club of New York, LLC, to the Planning Board to Duke & Benedict, Inc. and Benedict Dairy Farms have been assigned to Hudson Valley Realty Corporation. The original Assignments delivered to me are attached to this memo for inclusion in the Planning Board file. No documentation indicating that Duke & Benedict and Benedict Dairy Farms has a right to purchase Lot 1 from Centennial Golf or that Hudson Valley Realty corporation is a contract vendee of Duke & Benedict has ever been submitted. Based on the Assignment which is the only documentation submitted, it appears that Hudson Valley Realty Corp. is an agent of Centennial Golf and is authorized to submit a residential cluster subdivision on Centennial's behalf. Therefore, it is my recommendation that the Planning Board consider the following action:

1. The current application before the Planning Board should be rejected as incomplete.

2. If Centennial wishes to submit a revised application, the revised application should indicate that the owner and the applicant are Centennial Golf Club of New York, LLC and that Hudson Valley Realty Corp. is an authorized agent empowered to submit and process the application and to make binding commitments on behalf of Centennial Golf Club of New York, LLC.

3. If Centennial wishes to submit a revised application, it should include all those lots owned by it in the Town of Carmel which it intends to make part of the subdivision application. Any lot which is to be utilized for purposes of lot count under Section 63-11E(9)(c) must be part of the subdivision.

4. Centennial should indicate how it intends to satisfy the open space requirements of 63-11 E(6).

5. Centennial should indicate whether it intends to turn the golf course and related facilities over to a homeowners association as common open space.