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GREENBURGH CAR DEALER LAW FOR CENTRAL AVENUE TURNS PURPOSE ON ITS HEAD

A proposed change in the Town’s zoning law that was supposed to end the protection from competition that the Town Board awarded Edgemont’s three competing car dealers at their joint request last fall has been amended by the Town’s Planning Board so as to — you guessed it — prevent any new car dealers from opening up altogether in Edgemont.

The matter is now before the Town Board for a vote as a public hearing on the measure was concluded this week.

The Edgemont Community Council had warned the Town last fall that it would be exposing the Town and its taxpayers to millions of dollars in potential antitrust liability if it went ahead and granted a request from Edgemont’s three competing car dealers to be protected from competition in Edgemont.

The Town Board nevertheless unanimously approved the proposal, which allowed the three competing car dealers — Curry Acura, Curry Chevrolet and Scarsdale Ford and no one else — to apply for “special permits” so that instead of operating as “legal nonconforming uses” along Central Avenue as they have operated for decades, they would instead be deemed a permitted use and thus free to expand.

The ECC had said the prudent course for taxpayers would have been to amend the zoning law to make new car dealerships a permitted use along Central Avenue so that all new car dealers, those existing and those that might wish to move to Central Avenue, would all operate competitively on an even playing field.

The Town Board rejected the ECC’s proposal when it approved the joint request from Edgemont’s three competing car dealers for special status, but in order to avoid any antitrust harm, it did subsequently introduce a measure intended to make new car dealers a permitted use, so that additional new car dealers could open up showrooms to compete along Central Avenue in Edgemont.

The matter was referred to the Town’s planning board, and more than seven months later, the planning board endorsed a proposal — provided that any new car dealerships were separated by a minimum of 1,000 linear feet.

That 1,000 foot buffer, however, effectively eliminated any potential new car dealer sites in Edgemont, according to the owner of a Chrysler-Jeep dealership in Yonkers, which was hoping to open a showroom in Edgemont.

And armed with that new information, the ECC urged the Town Board during this week’s public hearing to reject the car dealership proposal, as amended by the planning board, for effectively continuing to protect the existing three car dealers in Edgemont from competition, which was the reason for introducing the legislation in the first place.

“It seems absurd for the Town Board to adopt a proposal that was supposed to end an illegal ban on competition that effectively, with this 1,000 foot buffer, allows that ban on competition to continue,” said ECC president Bob Bernstein.

“This also seems especially unwise now that a potential new car dealer has come forward, identified himself, and says he wants to open up a showroom to compete in Edgemont, but thanks to the Town Board’s new legislation, would not, as a practical matter, now be able to do so,” Mr. Bernstein added.

The ECC did not tell the Town Board that no buffer could be included — just that the proposed 1,000 foot buffer would not work.  The prospective new car dealer was eyeing the abandoned Lazyboy store as a potential new location, but because that location is within 1,000 feet of Curry Acura, that site would become unlawful.

Ironically, Curry Acura and Curry Chevrolet have existed for decades across the street from each other — well within that same 1,000 foot buffer.

Based on the planning board’s memorandum in support of its legislation, it knew its proposed 1,000 foot buffer would prevent future competition because it concluded that, if the 1,000 foot buffer would be adopted, there would be only one location potentially available for a new car dealership — which would be located along Central, but outside of Edgemont.

The planning board was never told publicly that the purpose of the car dealership legislation was to encourage new competition by minimizing the risk of antitrust damage caused by the Town’s having agreed to protect the three existing car dealers on Central Avenue from competition. Under state and federal anti-competition law, those found guilty of conspiring to restrain competition could be liable for treble damages and attorneys’ fees.

Because the planning board chair, Fran McLaughlin, does not allow for public comment on zoning proposals, there was no way to make sure the planning board was aware that, in doing what it did, it was undermining the very purpose of the legislation being proposed in the first place.

Counsel for the planning board would certainly have known of the reason for the legislation, but it is not known if they ever mentioned it to planning board members who, in their public comments, never expressed any awareness of it. Planning board members likewise would have known of the antitrust concern if they had attended or watched town board sessions where this matter was raised by the ECC on multiple occasions, but planning board members generally do not attend town board meetings and if they’ve ever watched, they’ve never mentioned it.

The ECC also opposed the planning board’s recommendation that the planning board, rather than the Town Board, be in charge of deciding whether any new car dealers be allowed to open on Central Avenue.

An additional proposal to prevent any new car dealers from loading and offloading new cars using car carriers parked in the middle of Central Avenue was also introduced.  Edgemont’s existing new car dealers have been doing this for decades, which tends to block one or more turning lanes on Central Avenue and has the potential for creating hazardous driving conditions.

Mr. Bernstein said, however, that all new car dealers on Central should be on a level playing field and that, accordingly, if there is to be a prohibition against car dealers using Central Avenue to park car carriers while cars are being loaded and off-leaded, it must apply to all car dealers, including those already in business in Edgemont.  Otherwise, he said, the new legislation erects even more barriers to prevent competition in Edgemont.

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