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ECC WARNS GREENBURGH BOARD THAT PROPOSED ZONING AMENDMENT COULD INTRODUCE COMMERCIAL USES IN ALL RESIDENTIAL AREAS OF EDGEMONT

Westchester Field HouseA proposed zoning amendment that three of the five members of the Greenburgh Town Board voted two months ago to introduce and be studied could potentially result in commercial uses being approved for all residential neighborhoods throughout unincorporated Greenburgh, including all residential neighborhoods in Edgemont.

ECC president Bob Bernstein last night warned the town board that the zoning amendment, contained in a petition filed by lawyers for Game On, the start-up firm that wants to build an indoor/outdoor recreation facility on 20 of the 32 acres of the Westchester Golf Range on Dobbs Ferry Road, could lead to commercial uses being permitted in all residential neighborhoods in Edgemont and the rest of unincorporated Greenburgh.

The proposed zoning amendment calls for indoor/outdoor recreation uses, along with related commercial businesses to support such use, to be allowed by “special permit” in all R-30 residential zones in unincorporated Greenburgh, provided the applicant has at least 20 acres available in such zones and that such property has at least 400 feet of frontage on a state road.

Mr. Bernstein explained, however, that the applicant’s selection of the R-30 zone was arbitrary, that it was chosen solely because the golf range happens to be in the R-30 zone, and that under the Greenburgh zoning law, all special permit uses permitted in one residential zone are expressly allowed in all other residential zones.  Thus, Mr. Bernstein said, for that reason, a court would have no problem concluding that allowing commercial recreational uses in the R-30 zone, as the applicant wants the Town to do, would be just as permissible as allowing commercial uses in any other residential zoning district in unincorporated Greenburgh.

Also arbitrary is the 20-acre minimum acreage requirement as well as the state road frontage requirement because the applicant nowhere explains why the special permit should be conditioned on those two requirements.  Accordingly, any applicant seeking a special permit for such commercial uses in any of unincorporated Greenburgh’s residential zones that cannot satisfy either of these requiremetns could simply ask the Zoning Board for a variance and, absent detailed factual findings by the Town Board as to why these particular criteria are needed for the special permit,  the Zoning Board would be free to disregard them.

Accordingly, the Town Board’s decision a few months ago to allow the Game On petition for a zone change to go forward, which was supported by Town Supervisor Paul Feiner and Councilmen Kevin Morgan and Ken Jones, could potentially impact all residential zones in all of unincorporated Greenburgh, including all residential zones in Edgemont.

Because all residential zones in unincorporated Greenburgh are potentially at risk, any study of the impacts of such a zone change would have to include a study of the impacts in all residential zones in all of unincorporated Greenburgh which the applicant has thus far not committed to do.  Instead, the applicant is committed only to studying the impacts on three discreet parcels, i.e., the golf ranage itself, the Elmwood Country Club across the street, and the Knollwood Country Club several miles away on Knollwood Road.

Mr. Bernstein said in light of these circumstances, the town board needed to reconsider its decision to allow the Game On zoning petition to go forward because if it does go forward in its current form and gets approved, the potential introduction of commercial uses in residential neighborhoods in Edgemont would be regarded by Edgemont residents as “existence-threatening.”

Telling Game On that its current petition for a zoning change will not go forward does not necessarily mean that the Game On application itself is dead.  All it means is that Game On’s lawyers will have to come up with another way under the Town’s zoning law to try to get permission to allow for construction of an indoor/outdoor commercial recreational facility in a residential neighborhood.

The failure of the Town Board to reconsider its decision greenlighting the potential zoning change Game On is seeking also highlights another town failure — which was the failure of the Town’s Planning Board two weeks ago to tell Game On’s lawyer that its zoning change request faced an uphill battle.

The Planning Board allowed the Game On lawyer to speak for more than an hour about the Game On application, but planning board members never gave any indication at all that its petition for a zone change would be a problem.

That was not, however, what the Town Board intended when it greenlighted the Game On petition.   Game On had asked the Town Board to refer the request for a zone change to the planning board, but residents objected, pointing out that such immediate referral would start a 120-day time clock and if the planning board had not acted within that 120-day window, such request for a zone change would be deemed approved by the planning board.  Such approval would mean that the zone change would require only three votes on the Greenburgh town board to become law.  But if the planning board was not inclined to approve the zone change, such approval would require four votes on the town board.

Inasmuch as town council members Francis Sheenan and Diana Juettner were already on record opposing the zone change, it became that much more important to the applicant to know as soon as possible whether there would be sufficient support on the planning board for the zone change.

Accordingly, when councilman Ken Jones made a motion before the town board to delete the reference to the planning board, Game On attorney David Steinmetz insisted that the Town Board instead direct the planning board to allow Game On to attend a pre-submission conference for the sole purpose of determining whether there would be sufficient support for the zone change.  If there wasn’t, Mr. Steinmetz said, he would advise Game On to withdraw his application.

However, it appears that no one told the planning board what transpired at the town board.  As a result, the planning board chair Fran McLaughlin stated that the planning board would hold the pre-submission conference solely to gather information on what might be referred to them down the road and would, in particular, not taking any informal action to let Game On know whether there request for a zoning change would be favorably considered.

Consequently, because the planning board failed to do what Mr. Jones had proposed — and the town board approved — the proposed zone change is still on the table and still threatening all of unincorporated Greenburgh’s residential neighborhoods with the potential for commercial uses, which is why Mr. Bernstein last night said the town board now needed to pull the plug.

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