CARMEL’S PROPOSED CLUSTER LAW IS
INCOHERENT AND WRITTEN TO ORDER

by Town of Carmel Resident Matt Bennett

      Unless we stop it, sometime after 7:30 PM on June 5 Carmel’s Town Board will enact a new cluster zoning law. This law has been rewritten to the exact specifications of the developers of the Links, a 65-condo, 35-house clustered subdivision using Centennial Golf Course as “open space.” You see, the developers didn’t like our current law, because it would have required that they turn over the golf course to the cluster’s homeowners’ association and then they would have lost all those lovely ($95-$125) greens fees. Since they were unhappy with our current zoning law, they did what any sensible developers in the Town of Carmel would do and hired the law firm of Curtiss, (State Senator) Leibell and Shilling to tell our ZBA that the law was no good. This tactic tends to be quite successful because the Chairman of the ZBA, Joseph Girven, is a long-time friend, associate, fundraiser, representative and occasional employee of Senator Leibell.

     Mr. Girven appears to give enormous weight to whatever Mr. Shilling or Mr. Curtiss have to say to his board, to the point that he seldom finds occasion to consult with Town Counsel for an objective opinion. Indeed, the amazing success of Curtiss, Leibell and Shilling’s clients before the ZBA, with decisions often contrary to fact and law, led Carmel’s Ethics Board to unanimously recommend that Mr. Girven recuse himself when the Senator’s law firm is before the ZBA. Unfortunately, a majority of the Town Board was apparently undisturbed by Mr. Girven’s conduct and refused to act on the Ethics Board’s recommendation. The Town Board did, however, manage to reappoint Mr. Girven Chairman of the ZBA during the ethics probe.

     In any event, Mr. Girven was persuaded that there were conflicts in the language of the current cluster law (although, had Town Counsel been consulted on this matter he might have cited his 12/16/98 letter that appears to indicate there were no conflicts in his eyes) and instructed his board that they had to find in favor of the developers, which they did. The ZBA then requested a “clarification” from the Town Board. Only in Carmel could the resulting legislation be considered a clarification of anything.

     You’ll have to read the law yourself  (click here to read) to truly appreciate what a mess it is. Don’t be embarrassed if you can’t understand it; no one can. That’s part of the point: the bigger the “gray area,” the more room the developers, lawyers and politicians have to maneuver. Of course, it’s sort of hard on our rights as citizens, but remember, this law has been made to order.

     The primary purpose of the new law is to allow a privately owned golf course to count as “open space” in a cluster development, and this it accomplishes. Of course, as a consequence, land that should have been forever part of the development may now be resold and used for other “Planning Board-approved passive and/or Planning Board-approved non-motorized active” recreational pursuits, whatever they are. It also appears that golf carts are permitted, although the language is unclear. This all makes as much sense as you or I constructing a miniature golf course or minor league ballpark in our (and our neighbors’) front yards, yet this is the sort of “clarification” our Town Board has to offer.

     You will also be amazed to note that “common open space” (which, according to the Town Counsel’s letter, used to be all the open space) now includes roads and parking lots. This is a slick way for the town to make the homeowners’ association responsible for the maintenance of a development’s streets, but there is something perverse about using the words “paved” and “open space” to describe the same land. It’s a “clarification” we could all have done without.

     You might wonder why the Town Board thinks they can get away with passing such an abominable law. Well, who’s going to stop them? There’s no one but us, and we’d better turn out in force if we want to shame our officials into doing the right thing. There was a proposal floating around last fall that would have eliminated any conflicts, real or imagined, in the language and required that all open space belong, in perpetuity, to the cluster’s homeowners’ association. That’s the law we need, and the one the Town Board should enact. We showed them who’s boss when over 400 of us stopped the Mahopac Airport development, and it’s about time we showed them again.