Underwater ‘land’ scheme is legally questionable

The latest sorry chapter in the saga of the proposed Lake Flower Resort hotel is now unfolding at considerable speed, with little discussion. The village board now plans to “amend” the Lake Flower Planned Unit Development District it created two years ago to allow this otherwise disruptive and unapprovable shoreline development.

In brief, the proposed “amendments” would (i) remove 203 River St. (originally proposed for extra parking) from the PUDD, (ii) add 1.1 acres of adjacent land under the waters of Lake Flower to the PUDD, and (iii) substitute the new design for an earlier version. The size of the Lake Flower PUDD after these machinations would total 4.07 acres, more than the required 3-acre minimum.

As we have done on earlier occasions, we must oppose this latest attempt to authorize an oversized development on a sliver of shoreline property at one of the busiest intersections in the village. Once again, the village board appears to be ignoring inconvenient local laws in creating yet another mechanism for approving this massive development so ill-suited and out of scale for its site on Lake Flower. Including underwater lands to meet the minimum required size illustrates, at best, undue favoritism and at worst, impermissible “spot zoning.”

Procedural requirements ignored

No matter how it’s dressed up in mayoral justifications, the PUDD amendment proposal is a tacit admission that the Planning Board had no legal authority to approve a revised resort hotel site plan (effectively deleting the associated 203 River St. lot) without prior approval by the village board. With this current proposal, the village is once again ignoring specific requirements in the local laws, i.e. the Development Code, adopted only last November.

As a general matter, the village’s zoning law and its official zoning map are subject to amendment through a process which may be instigated by the village board or the Development Board or a qualified applicant. However, where revisions are proposed to an already-approved PUDD, a different review process must be followed.

Our Development Code explicitly states, “Any proposed modification to an approved PUDD shall be considered as a new application.” Sec. 160-53 sets out a process which is initiated by a qualified “applicant” (not the village board or Development Board). The applicant (developer) must submit a new application for village board approval of the proposed revised PUDD. In this case, since the Lake Flower PUDD land is now owned or “controlled” by two distinct legal entities, Saranac Lake Resort and Malone Real Estate, both must sign and submit the new application to commence the revision process.

The village’s failure to follow the procedural requirements for the revised project/PUDD last July resulted in a legal challenge to the site plan approval. Its failure now to follow these same requirements could also be challenged in court.

Minimum PUDD size requirement already circumvented

The substantive issue is the pesky minimum-size requirement for PUDD approvals. In approving the Lake Flower PUDD, the village board exempted this project from the general B-2 zoning requirements, allowing a much taller building within the required 50-foot shoreline setback. As part of its review process, the village board created an exemption from the minimum acreage requirements. Now it proposes to take an unprecedented step — zoning lands under Lake Flower water — to further this project.

Since 2011, the village’s zoning law has generally required that any proposed PUDD contain “a minimum of three contiguous acres of land.” In 2014 the village created an exemption for the proposed Lake Flower PUDD, allowing (and requiring) a minimum of “three acres” (of land), i.e., not necessarily contiguous lands. Thus, the noncontiguous 203 River St. lot could be counted, resulting in a total proposed Lake Flower PUDD of 3.184 acres.

In its site plan decision last July, the Planning Board approved a revised project, describing a “project site” (without 203 River St., by then in separate ownership) of four motel lots as “approximately 2.97 acres (approximately 4.17 total acreage).” This new “total acreage” (not explained) reflected an apparent last-minute discovery (by the applicant’s attorneys) that the motel owners actually owned adjacent land under water. (Note: This adjacent submerged land is actually described in the deeds submitted to the village in 2013.)

Ownership of this adjacent submerged land, however, was actually irrelevant because the Lake Flower PUDD, as enacted by the village board, never included any land under water. The Planning Board ignored the narrative description and the attached survey, which clearly outlines a PUDD extending between Lake Flower Avenue and the shoreline, and including 203 River St.

Creation of the unique Lake Flower PUDD ending at the shoreline was consistent with the village’s general zoning scheme. Indeed, all land under the waters of Lake Flower is un-zoned. All the bordering zoning districts are shown on the zoning map, and are described in the code, as running “along the … water’s edge.”

An unprecedented zoning action now proposed

In this new “amendment” proposal, the 2.97 acres of land (encompassing the four shoreline motel lots) would continue to be part of the Lake Flower PUDD while the 203 River St. lot would be deleted and an additional 1.1 acre of land entirely under water would be rezoned as part of the PUDD. Thus, the 2.97-acre site would become 4.07 acres in size, sufficient to meet the 3-acre requirement. Including these submerged lands within the PUDD would be an unprecedented zoning action.

This “amendment” would be inconsistent with the requirements of the general PUDD authorizing law and should not be approved. While the term “land” is not defined in the Development Code, a reading of the zoning scheme and zoning map indicates that lands under Lake Flower are not included in that term. One can look at various definitions for buildable land, open space, density, development, dock, flood, land disturbance, lot, lot area and maximum lot coverage, yet none of these envision submerged lands as “land” to be zoned.

While the submerged lands under Lake Flower could legally be zoned (state guidance documents speak of “water-use regulation,” not “land-use regulation”), the village is not pursuing an appropriate comprehensive zoning change which would affect all other lands beneath the lake. Moreover, neither the Comprehensive Plan nor the Local Waterfront Revitalization Program discusses this regulatory approach. In its years-long review of the Land Use Code, culminating in the new Development Code only six months ago, the village board never discussed expanding zoning to encompass lands under Lake Flower.

By amending the Lake Flower PUDD to include just this small area of submerged lands to allow this project to proceed, the village board would engage in impermissible “spot zoning.” New York’s highest court has declared that “spot zoning” occurs when land is rezoned for the benefit of particular persons rather than in accordance with a comprehensive plan for the general welfare of the community.

Ellen Egan George and Barbara Friend are lawyers and live in Saranac Lake.

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