Planning, Economic Development and Land Use Committee

COMMON COUNCIL COMMITTEE MEETING PLANNING, ECONOMIC DEVELOPMENT AND LAND USE COMMITTEE Cathy M. Fahey, Chair DATE: Thursday, January 2, 2020 PLACE: City Court Room 209 – 2nd Fl. City Hall TIME: 6:00 PM (Following Caucus) TOPICS OF DISCUSSION: RESOLUTION NUMBER 90.122.19R (MC) A RESOLUTION OF THE COMMON COUNCIL AUTHORIZING AND DIRECTING THE CITY CORPORATION COUNSEL TO ENFORCE THE DECLARATION OF COVENANTS AND RESTRICTIONS DATED MAY 1, 2017, FOR 20 PARCELS LOCATED ON NEW SCOTLAND AVENUE, SOUTH ALLEN STREET, AND ONDERDONK AVENUE PUBLIC COMMENT PERIOD: Yes Council Member Doesschate introduced the following: RESOLUTION NUMBER 90.122.19R (MC) A RESOLUTION OF THE COMMON COUNCIL AUTHORIZING AND DIRECTING THE CITY CORPORATION COUNSEL TO ENFORCE THE DECLARATION OF COVENANTS AND RESTRICTIONS DATED MAY 1, 2017, FOR 20 PARCELS LOCATED ON NEW SCOTLAND AVENUE, SOUTH ALLEN STREET, AND ONDERDONK AVENUE WHEREAS, the following 20 parcels within the City of Albany commonly owned by FM Promontory Capital, LLC are subject to a Declaration of Covenants and Restrictions dated, and duly filed with the Albany County Clerk’s Office on, May 1, 2017: 64.81-1-37; 64.81-1138; 64.81-1-39; 64.81-1-40; 64.81-1-47; 64.81-1-48; 64.81-1-49; 64.81-1-50; 64.81-1-51; 64.81-1- 52; 64.81-1-53; 64.81-1-554; 64.81-1-55; 64.81-1-56; 64.81-1-63; 64.81-1-64; 64.81-1-65; 64.81-1-566; 64.81-1-67; and 64.81-1-70; and WHEREAS, in 2017, the Common Council of the City of Albany adopted the Unified Sustainable Development Ordinance (“USDO”) through Ordinance Number 26.31.17, which also repealed former Chapter 375, “Zoning” of the City Code of Albany, adopted in 1993; and WHEREAS, the USDO rezoned the 20 parcels listed above into Mixed-Use- Neighborhood Center (MU-NC) and Multi-Family Residential (R-M) from Neighborhood Commercial (C-1) and Multi-Family Low-Density Residential District (R-3A); and WHEREAS, pursuant to former Chapter 375, “Zoning” of the City Code of Albany, buildings in the Neighborhood Commercial District (C-1) were limited to a maximum height of 35 feet, or roughly three and a half (3.5) stories and buildings in the Multi-Family Low-Density Residential District (R-3A) were limited to two and a half (2.5) stories; and WHEREAS, the USDO authorizes buildings in the MU-NC district to be a maximum height of three and a half (3 ½ ) stories, or, four and a half (4 ½ ) stories if certain incentive requirements set forth in the USDO are met, and buildings in the R-M district to a maximum of four (4) stories; and WHEREAS, prior to the passage of Ordinance Number 26.31.17, members of the general public and members of the Common Council objected to rezoning the 20 parcels listed above based, in part, on the proposed increased height allowed for buildings on the parcels as a result of the proposed new zoning; and WHEREAS, the USDO, as proposed, did not have another appropriate zoning classification that would allow three (3) story apartment buildings that would be acceptable to residents and Council Members and was desired by the owner of the above-listed 20 parcels, FM Promontory Capital, LLC; and  WHEREAS, in an effort to address those concerns, the Commissioner of Planning and Development, Chris Spencer, recommended that FM Promontory Capital, LLC, execute a restrictive covenant to address the concerns and objections that would also allow the 20 parcels listed above to be rezoned to allow three and a half (3.5) and three (3) story buildings; and WHEREAS, pursuant to Mr. Spencer’s recommendation, FM Promotory Capital, LLC, executed and filed, in May 2017, a Declaration of Covenants and Restrictions affecting the 20 parcels listed above, which is set forth in Attachment “A,” and such Declaration identified the 20 parcels list above as “New Scotland Village;” and WHEREAS, the Declaration of Covenants and Restrictions provides: “FM Promontory Capital, LLC, for itself and its successors and/or assigns, covenants that…building height is limited to a maximum of 3 stories plus subsurface parking or basement with the exception of the area fronting on New Scotland Avenue and extending 210 feet from the right-of-way line of New Scotland Avenue and an area extending 198 feet from the right-of-way of South Allen Street which may be 3.5 stories plus subsurface parking or basement area;” and WHEREAS, the Declaration of Covenants and Restrictions further provides: “…this Declaration is and shall be deemed a covenant that shall run with the land and shall be binding upon all future owners of …[the 20 parcels a/k/a New Scotland Village], and shall provide that the owner and its successors and assigns consent to enforcement by the City of Albany;” and WHEREAS, in October 2018, Jankow Companies applied for Major Development Plan Review, Area Variance, Lot Consolidation, and Demolition Review for the 20 parcels listed above for a “mixed use development of the property includes a 5 story building with sub-surface garage for 75 parking spaces and a 26,602+/- SF footprint” including commercial facilities and apartments, …[and] 2 four story buildings with a total of 76 apartments with 64 subsurface parking and a 2 story building with 18 apartments…” which was also referred to in application documents as “New Scotland Village” and the City assigned such project Case File Number 00238 (Case File # 00238); and WHEREAS, FM Promontory Capital, LLC authorized the application; and WHEREAS, on August 27, 2019, the Planning Board of the City of Albany approved with conditions the Major Development Plan Review and Demolition Review for Case File #00238; and  WHEREAS, Case File #00238 provides for the construction of a 5 story building in the MU-NC district fronting New Scotland Avenue, and two (2) four (4) story buildings in the R-M district in violation of the restrictive covenant set forth in the Declaration of Covenants and Restrictions that limits the building heights to 3.5 and 3 stories respectively; and WHEREAS, FM Promontory Capital, LLC executed a new Revision of Declaration of Covenants and Restrictions dated September 10, 2019, attempting to invalidate and remove the Declaration of Covenants and Restrictions filed in May 2017; and WHEREAS, the Declaration of Covenants and Restrictions grants the City of Albany the authority to enforce the restrictive covenants therein; NOW, THEREFORE, BE IT RESOLVED, the Common Council authorizes and directs the City of Albany Corporation Counsel to take any and all steps necessary and appropriate to enforce the Declaration of Covenants and Restrictions; and BE IT FURTHER RESOLVED, that the Common Council authorizes and directs the City of Albany Corporation Counsel to institute an action or proceeding in the Supreme Court of the County of Albany or other appropriate jurisdiction if necessary to enforce the restrictive covenant within the Declaration of Covenants and Restrictions, and obtain injunctive relief; and BE IT FURTHER RESOLVED, the Common Council authorizes and directs the City of Albany Corporation Counsel to take any and all steps necessary and appropriate to have the Revision of Declaration of Covenants and Restrictions declared invalid, and to have the Declaration of Covenants and Restrictions declared valid and enforceable; and BE IT FURTHER RESOLVED, the City of Albany Corporation Counsel shall provide updates to the Common Council on a regular basis and upon request regarding the actions taken and outcomes and shall obtain the approval of the Common Council before settling any action or proceeding initiated to declare the Declaration of Covenants and Restrictions valid and/or to enforce the same. Attachment A TO: Danielle Gillespie, City Clerk FROM: Judy Doesschate, Member, Albany Common Council RE: Supporting Memorandum DATE: December 6, 2019 RESOLUTION NUMBER 90.122.19R (MC) TITLE A RESOLUTION OF THE COMMON COUNCIL AUTHORIZING AND DIRECTING THE CITY CORPORATION COUNSEL TO ENFORCE THE DECLARATION OF COVENANTS AND RESTRICTIONS DATED MAY 1, 2017, FOR 20 PARCELS LOCATED ON NEW SCOTLAND AVENUE, SOUTH ALLEN STREET, AND ONDERDONK AVENUE GENERAL PURPOSE OF LEGISLATION To enforce the Restrictive Covenant that was executed and filed on May 1, 2017 and had been prepared and executed for the purpose of eliminating residents and Council Members concerns regarding the proposed zoning of the subject parcels in the USDO and map that was then adopted by the Common Council in reliance of the covenants and the assurances made in the Restrictive Covenant regarding the potential development of the subject properties. NECESSITY FOR LEGISLATION AND ANY CHANGE TO EXISTING LAW The Restrictive Covenant expressly authorizes the City of Albany to enforce the terms of the covenant and the Common Council needs to assure the terms and conditions of the Restrictive Covenant are adhered to as was the Council’s intention at the time the USDO was adopted. EXPLANATION OF DEADLINE OR REQUESTED TIME FRAME FOR PASSAGE This resolution needs to be acted on as soon as possible as the developer is proceeding with plans to develop the properties in violation of the Restrictive Covenant SPECIFICS OF BIDDING OR OTHER PROCUREMENT PROCESS (if applicable) N/A SPECIFICS OF REAL PROPERTY SALE OR ACQUISITION (if applicable) N/A FISCAL IMPACT(S) None