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November 21, 2013 - 3:04pm

Judge will consider whether to overturn denial of permit for rooming house on East Main

posted by Howard B. Owens in batavia, business, planning, zoning, Terry Platt, Platt Properties.

Local landlord Terry Platt has brought an Article 78 action against the City of Batavia over a planning committee's denial of his application to open a rooming home on East Main Street, and the Erie County judge presiding over the case indicated in court today he leans in favor of Platt's side of the case.

When Larry O'Connor, representing the city's insurance company, told Judge John Curran that he thought the case was straightforward, Curran responded, "I think it is straightforward and you're running up hill."

O'Connor said he got that feeling after listening to Curran pepper Platt's attorney, Michael Perley, with questions about how the case should be decided.

Platt sought approval from the city in May for a rooming house at 316 E. Main St. and several neighbors came to a meeting of the Batavia Planning and Development Committee and objected to the plan.

The committee voted to deny Platt the necessary approval for the project.

In the Article 78 action, Platt's attorney argues that the proposed use is both allowed by existing zoning, fits the mixed use nature of the neighborhood and could not be denied on any legal basis.

O'Connor said the committee had the authority to deny the application based on the city's Comprehensive Master Plan.

That, however, raises what Perley characterized as a "fatal defect" in the city's case -- there's no proof on the record that the city ever formally approved its master plan.

O'Connor did not provide proof of plan approval prior to arguments in the case and Curran said the record is now closed. O'Connor said, however, he could provide proof of an approval. (Outside of court, O'Connor said Curran could "take judicial notice" of the approval, even if it's not part of the record).

Perley said the city couldn't produce a copy of the master plan when Platt issued a FOIL request for the document earlier this year.

A copy was found and it is now part of the case.

City Manager Jason Molino confirmed later in the day that the City Council did ratify the master plan Feb. 25, 1997. Molino could not comment further on the case.

According to the discussion in the Erie County courtroom of Curran today, Curran must weight the role of the master plan in the committee's decision, whether the master plan gives the committee the authority to reject Platt's application, and whether he should take the extreme step of overturning the decision of a group of community volunteers over a zoning issue.

Curran spent a lot of time asking the attorneys questions about how they propose he decide the case.

"The property is properly zoned?" Curran asked.

"Correct," said Perley.

"There's no defect in the application?"

"Correct."

"There's no request for a variance?"

"There's no need for a variance."

"There's no request for a change in zoning?"

"No."

"There's is no need for a special-use permit?"

"No."

"Both you and Mr. O'Connor have experience in municipal law," Curran said. "You and I both know a lot of municipal law. If I run a (report) for special-use permit legal cases to come up with standards or if I run it for variances to come up with a standard, we know what I'll find. What do I run for this one?"

"The standard you apply is whether or not this decision was arbitrary and capricious," Perley said. "How does the committee deny an application that is proper for the property before it without misapplying the zoning law?"

O'Connor argued that the denial was consistent with the master plan, and Curran honed in on the section that says the permitted uses of buildings on that section of East Main Street (zoned C1, which is mixed use) includes professional offices, small restaurants and other small businesses, but says nothing about single-family residences, so how can the city argue that it wants to preserve the historic nature of the single-family residences?

The master plan as a whole is about preserving and enhancing current single-family residences, O'Connor told Curran.

"This is an area of single-family homes along with limited commercial use," O'Connor said. "The city wants to preserve the integrity and character of that area."

Then Curran laid out his underlying frustration: Neither attorney had filed a memorandum of law.

Such memorandums are often filed by attorneys to provide a judge with their views of how the law and prior legal precedents apply to a particular case.

Perley said he wrote such a memorandum and was surprised it hadn't been filed with the case. Since O'Connor hadn't received such a memo, he hadn't written a response.

Curran agreed to give both attorneys time to file such memos and continued the case to Jan. 30.

The options before Curran include: upholding the committee's decision; overturning the decision and permitting Platt to open the rooming house; or overturning the committee's ruling but ordering the committee to reconsider its decision.

Christopher Putnam
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Pretty sure that the City does not have a leg to stand on here....

THE HOUSE NEXT DOOR IS ALREADY A ROOMING HOUSE!

Which puts your nonsensical claim of "master plan" right into the shitter.

Platt has been a business owning, tax paying, member of this community for many years. The city should probably get off his back, and perhaps thank him for providing low cost housing to people who otherwise may be homeless.

John Roach
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That rooming house will, house prison parolees who have also been convicted of sex offenses, like the one he had that burned down. The difference this time is how close it will be to two schools, a library and a senior housing complex.

With the recent reports of sex crimes against children, this comes down to protection of children versus private property ownership.

Howard B. Owens
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John, the story was long enough and complicated enough so I didn't include it, but O'Connor said his position is the proximity to a school issue is not part of the case.

The sex offender issue was not raised by either party.

Kyle Couchman
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John there is no proof that will be the case. For all you know the rooming house could house single mothers that cant afford apartments or perhaps other people that are starting over from just recovering from addiction rehab. Even people recently homeless from recent fires in the city too..

Either way, you are trying to predict a future that hasn't happened. Sex offenders and parolee's are not the only people who rent from rooming houses. There are also laws about housing discrimination as well, so the city cant really dictate or assume anything beyond city and state housing code.

Howard B. Owens
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Here's the story from May

http://thebatavian.com/howard-owens/terry-platt-says-hes-done-investing-...

"Roach objected to the idea that Platt would likely take in NYS parolees as tenants.

Christian noted that some of Platt's properties have sex offenders living in the dwellings.

April Walroot, Platt's property manager, said out of the 28 rooms the company has rented now, only four are the homes of registered sex offenders.

She also said that because the house is within 500 feet of a school -- St. Joseph's -- NYS Parole won't allow sex offenders to be placed in the residence.

According to this online mapping tool, St. Joe's is more than 800 feet from the house, as is the Richmond Memorial Library. "

Beth Kinsley
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NYS Parole regulations would not apply to sex offenders who are no longer on parole.

Lisa Woltz
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Beth, That is not true. Once you are an offender, you remain on a list for the rest of your life. You will have no part of a child's life now or anything to do with a child whatsoever.
I do understand the need for keeping this beautiful town free from Offender's. Nevertheless, you may have a sex offender living in your back yard and didn't know it. This idealistic paranoid feeling everyone will be moving in the neighborhoods as a convict or child molester is wrong. Why don't we take one step at a time? There are people out there with no affordable income right now and are homeless. I'm curious to know more of the housing. Most of the houses I've been looking at are not in my budget in the city of Batavia. Just saying.

Lincoln DeCoursey
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I have spent a fair amount of time living in a rooming house and none of my neighbors were parolees, sex offenders, or ex-cons of any sort. Everybody worked full time, paid his own rent, and was normally adjusted. It was basically no different than living with roommates. I suspect that some readers are confusing rooming houses with halfway houses. A halfway house is where recent parolees or those fresh from rehab go to begin reintegration with society. A rooming house is like an apartment but with shared common areas; a regular house but where the occupants are unrelated.

That being said, as the first rung on the independent housing ladder, a rooming house needs to offer a comparatively lower barrier to entry. In my mind, a key is for the landlord to actively monitor the dynamic in the house and manage any problem tenant before good tenants are driven out. A rooming house will tend to develop its own norms of acceptable behavior depending on who's living in it. Some rooming houses are all reasonable, hard-working people. Others are all hardened addicts. In my mind, a rooming house could be either a blight or a positive thing, it really depends how it's run. Sometimes it means leaving a room vacant for a couple of months and waiting for the right tenant.

Dave Olsen
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Xenophobia ...................... Just Sayin'

John Roach
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Kyle, I attended the meeting in question. He admitted the rooming house would likely have them, just like the one that burned down. I am not against rooming houses or him, but not that close to schools, a library and a senior center.

Of course it did not help his case when his property manager said she was constantly having to go out in the early morning (like 2am) to resolve problems because the police had been called.

Howard, the sex offender issue may not be part of the current case, but it is why I personally am hoping the City wins

Raymond Richardson
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John,

As stated once already, parolees, regardless of their crime, would be barred by parole regulations from living in the house.

Beth Kinsley
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Lisa, I am well aware that once someone is on the sex offender registry that they stay on for life. My post stated that once an offender is off parole, NYS PAROLE regulations no longer apply. Two totally different issues.

Look up an offender on the registry and it clearly states "The special conditions of release do not apply past the maximum expiration date of sentence because the offender is no longer under supervision by the listed supervising agency for this crime."

John Roach
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Raymond,
He has parolees living in them now. They lived in the one that burned down. Why do you say they would be barred?

Lisa Woltz
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Here is the website to New York States Division of Criminal Justice. You be the deciding factor on your own.

At a Level 1- It is the ONLY Level that the offender will not act again. As for "Special Conditions". The law has your myths and truths in there also.

http://www.criminaljustice.ny.gov/nsor/risk_levels.htm

Kyle Couchman
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So what your saying Lisa is Level 1 offenders "Will not act again" Thats pretty specific, does that mean that when any Level 1's who do re-offend then the victims can sue the state as the state says they wont act again?

However I'm glad you pointed out the myths part of that site as I found one myth very interesting and it counters the objections of the city and Mr. Roach...

Myth: Residency restrictions make communities safer.
Fact: Residency restrictions are fairly recent, and it is unclear if they make communities safer or not.
Background: Residency laws usually mandate that an offender cannot live within a certain distance from schools or day care facilities. Typically, it is 1,000 feet, but may be as little as 500 or as much as 2,500 feet. Some restrictions include other locations such as churches, parks, gymnasiums, school bus stops, recreation facilities, and playgrounds. Some restrictions prohibit the offender from working or being present in those zones (Human Rights Watch, 2007). Residency laws are often justified as a way to protect children: if offenders are prohibited from living near a school or playground, they will not be near children and therefore will be less likely to attack a child. However, residency restriction laws in most states, including some areas of New York State, apply to all registered offenders, regardless of whether their crimes involved children (Human Rights Watch, 2007).
New York State does not limit where a sex offender can live, however, if a sex offender is on parole or probation, the terms of the offender's parole or probation may limit where he or she can travel. For example, if a sex offender is on probation or parole for a crime against someone under 18, or is a level 3 offender, he cannot enter the grounds of any school or child care facility.
Because residency laws are fairly recent, little research has been done as to what long-term impact they may have on community safety or their efficacy in protecting children. However, there have been more studies on related issues, such as how often children are assaulted by strangers, and where most attacks on children take place.
How often are children attacked by strangers? Sometimes children are assaulted by strangers. However, as discussed in the first "myth" most children are sexually assaulted by someone they know, not by a stranger. The U.S. Department of Justice reports that 93% of victims under the age of 17, and 73% of victims age 18 and older, were assaulted by someone they knew. Where the victim was a child, 34% of offenders were family members and 59% were acquaintances (Bureau of Justice Statistics, 2000).
How often are children assaulted near parks or near schools? Most sexual assaults take place in a home, and not in a park or on a school ground.
About 60% of sexual assaults on victims age 12 and older take place in a victim's own home or in the home of a friend, neighbor or relative. Only 11% of these offenses occurred on school property or in a yard, park, field or playground (Bureau of Justice Statistics, 2006). Only 16% of the sexual assaults of youth below the age of 12 occurred in a place other than a residence (Bureau of Justice Statistics, 2000).
The Colorado Department of Public Safety found that convicted child molesters in Colorado who committed another sex offense while on probation were randomly scattered throughout the geographical area, and did not seem to live closer to schools or child care centers than those who did not commit another sex offense (Colorado Department of Public Safety, 2004).
A study in Minnesota attempted to track whether sex offenders contacted their victims near their homes or not. The study showed that when offenders contacted juveniles, they often did so more than a mile away from where the offender lived. Of the few offenders who directly contacted a juvenile near the juvenile's home, none did so near a school, park, or playground. The study concluded that none of the 224 offenses examined would have been prevented by residency restrictions (Duwe, Donnay & Tewksbury, 2008).
A meta-analysis on the journey-to-crime of sex offenders (Beauregard, Proulx & Rossmo, 2005) found that on average, most sexual offenders traveled a minimum of one mile from their home to commit their crime.
Residency laws may have another impact: They can drive offenders into homelessness, which may make it harder to track and supervise them.
Within six months of the implementation of Iowa's 2,000-foot law, thousands of sex offenders became homeless or transient, making them more difficult to track and monitor. The number of registered sex offenders in Iowa who could not be located more than doubled, damaging the reliability and validity of the sex offender registry (Rood, 2006). An Iowa Sheriff stated, "We are less safe as a community now than we were before the residency restrictions" (Human Rights Watch, 2007).
The California Sex Offender Management Board concluded that the number of affected sex offenders statewide, and parolees in particular who declared themselves as transient since the implementation of Jessica's Law increased dramatically. In January of 2008, they reported that of 3,884 parolees subject to residency restrictions and registration, 718 (18.5%) have registered their address as "transient." This represents an increase of 715% over the 88 reported in November of 2006 when the law took effect. (California Sex Offender Management Board, 2008).
From the general criminal recidivism research, we know that shelter use, both before incarceration and after release are associated with an increased risk of return to prison; risk of re-incarceration increased 23% with pre-release shelter stay and 17% with post-release shelter stay (Metraux & Culhane, 2004).

taken from: http://www.criminaljustice.ny.gov/nsor/som_mythsandfacts.htm

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