A company that filed plans earlier this year to build an enormous 100-bed assisted living facility in a residential neighborhood in Edgemont that is nearly a mile away from the nearest state or county road now claims it can get its special permit to build approved by the Town Board without having to obtain any variance at all from the Zoning Board of Appeals.

The Edgemont Community Council meanwhile told the Zoning Board of Appeals it has no legal authority to issue any variance at all because the site in question – the former Sprainbrook Nursery at the corner of Underhill and Sprain Roads — may not legally be used under the town zoning ordinance as an assisted living facility.

The ZBA two weeks ago adjourned a public hearing on the developer’s application – apparently because the developer intended to argue that no variance was needed — and made no response to the ECC’s submission.

Formation Shelbourne Senior Living Services, LLC , which filed an application to build at Sprainbrook , told the Town last week it does not need a variance because it claims newly discovered property records show that in the 1960s when the Sprain Parkway was being built, the state obtained a 9,000 square foot “right-of-way” on a narrow portion of the Sprainbrook property alongside UnderHill Road and a portion of Sprain Road.  Shelbourne’s argument is that as long as the Sprainbrook site is within 200 feet of a state “right-of-way” — even if the right-of-way was granted fifty years ago, was never developed, and goes nowhere — the Town’s zoning ordinance literally allows Shelbourne to build its assisted living facility there.

The “right of way” at issue here would have apparently allowed the state to construct an exit ramp off the Sprain onto Underhill – but no such exit ramp was ever built in the past 50 years — meaning Shelbourne’s claimed “right of way” is today nothing more than a narrow strip of undeveloped land.

What is more, any such “right of way” would appear to have been legally abandoned.

Section 205 of the state highway law, entitled “Highways abandoned,” provides that “every public right of way that shall have not have been used for [six years] shall be deemed abandoned as a right of way.”

Courts have held such land to be abandoned where, as is the case here, the state didn’t use the land for at least six years and, as is also the case here, it never acquired the land by eminent domain and paid the owner any compensation to acquire it.

But if town officials, who are still mulling over what to do, decide to agree with Shelbourne anyway, then such action on the part of Greenburgh’s officials would appear to turn the purpose of the Town’s 200-foot zoning restriction on its head.

On January 9, 2013 – one month prior to amending the zoning law to allow for assisted living facilities in residential neighborhoods within 200 feet of a state or county “right of way” — the town board made formal official findings, required by state law under the state environmental quality review act, known as SEQRA, as follows:

“The inclusion of the proximity of potential sites to State or County Roads other than Parkways and Interstate Highways, into the criteria, seeks to limit additional or excessive traffic within established residential neighborhoods, while insuring safe emergency and other vehicular and pedestrian access.”

Here, because the “right of way” that Shelbourne claims is nothing more than an undeveloped parcel of land nearly a mile away from any actual “state or county road,” if the Town agrees with Shelbourne, the developer would be able to build without regard to the Town’s expressed intent to “limit additional or excessive traffic within established residential neighborhoods, while insuring safe emergency and other vehicular or pedestrian access.”

In its written submission two weeks ago to the ZBA, the ECC pointed out that when the Town studied whether to amend the zoning ordinance to allow assisted living facilities to be built in residential neighborhoods throughout unincorporated Greenburgh, town officials produced a map, which was made part of the Town’s state-mandated legislative findings, which did not include the Sprainbrook property as one of the potential sites.  

Specifically, the Town Board represented in its filing with the state as follows:

Town staff produced a map (Exhibit A) that shows all properties with a minimum of four (4) acres that are within 200 ft. of and have access to (direct or via a side street) a State or County Road (other than Parkways and Interstate Highways) that have the potential to allow for assisted living facilities in the unincorporated portion of the Town of Greenburgh. This map was used by Town Board to identify where other assisted living facilities might be entertained in the future and was analyzed and discussed at length by the Town Board in its decision on the special permit legislation.”

Because the Sprainbrook site was not among the sites “analyzed and discussed at length by the Town Board in its decision on the special permit legislation,” the ECC notified town officials that they cannot as a matter of law now allow Shelbourne to obtain a special permit on a site that was never intended to be included for such use.

Despite what the Town’s own written records show, Greenburgh officials have thus far ignored the ECC’s written submission — no one from the Town has even bothered to acknowledge having received it — and town officials continue to act as if Shelbourne is legally entitled to proceed with its application.

Shelbourne has other problems too.

The 9,000 square feet of land that was apparently acquired by the state in the 1960s for a “right of way” for the Sprain Parkway — even if the right-of-way has since been abandoned — is legally not part of the Sprainbrook Nursery property.

That’s a problem for Shelbourne because if the 9,000 square feet is not part of the property, the Sprainbrook site would then be less than four acres.

Under the Town’s zoning ordinance, no assisted living facility can be built in a residential district if the site is smaller than four acres.

To get around that hurdle, the Town’s zoning code allows property that has been acquired for a “right of way” to be considered part of the property’s total acreage for zoning purposes – but only if the Town Board grants a special permit for that purpose.

Shelbourne is now quietly asking the Town Board to exactly that – the intent to seek such a special permit was recently disclosed only in passing on an upcoming planning board agenda — but it does not appear that Shelbourne would even qualify for it.

The town’s zoning ordinance, Section 285-40(C)(10) authorizes the Town to grant special permits in such circumstances, but only if the Town Board finds that “at the Town’s request, the owner has transferred or has offered to transfer land to the New York State Department of Transportation, the Town or any other governmental agency or municipality for highway-widening purposes.”

Here, however, there does not appear to be any evidence from the 1960s proving that the Town ever made any such request to the owner of the Sprainbrook property for that purpose and Shelbourne has thus far not provided the Town with any such evidence.

Without such evidence, the Town Board would not have any legal authority under the Town Code to issue a special permit to allow the 9,000 square feet to be deemed to be part of the Sprainbrook property for Shelbourne so that it could meet the minimum four acre requirement.

But the Town Board should not even be entertaining any such application from Shelbourne if town officials determine, as the ECC believes they must, that the site is not within 200 feet of a state or county “right of way,” that whatever “right of way” may have been conveyed to the state in the 1960s for the Sprain Parkway has long since been legally abandoned under state highway law, and that even if it had not been abandoned, which it has, interpreting the zoning law to allow an assisted living facility at that site would be unlawful in any event because, as the ECC has demonstrated, the Town Board never authorized that site under its zoning ordinance as a “permissible use” for an assisted living facility, and Shelbourne would not legally qualify under state law for a use variance.

The problem for Edgemont is that town officials have thus far made no such findings, Town Supervisor Paul Feiner has spent months lobbying town board members and the public in favor of Shelbourne’s application, and if town officials rule that Shelbourne can proceed with its application to build an assisted living facility at the Sprainbrook site, without regard to any of these threshold legal issues, the Town will once again find itself at legal loggerheads with Edgemont residents and civic leaders who believe the Town will be acting unlawfully and thus contrary to the rights of Edgemont taxpayers.

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